Bad Legislative Intent

Abstract

This Article focuses on the role, if any, that a legislative body's bad intent in passing election laws should play when courts assess the constitutionality of those laws. For purposes of this Article, by bad intent in the election law area, I mean a legislative intent to protect incumbents, a political party, or the two major political parties, from political competition. I argue that, despite the arguments of some leading election law scholars, including Professor Richard H. Pildes, proof of such bad intent should be neither necessary nor sufficient for an election law challenge to succeed, though it should be relevant in getting courts to take a hard look at election laws. Rather than focus on intent, courts should primarily examine the effect of election laws on the rights of individuals and groups, and, when the effects are severe enough, carefully balance those bad effects against the stated and proven interests of the state in the election law.

Part I of this Article offers three reasons why proof of bad legislative intent should not be necessary to strike down an election law. First, bad election laws can emerge even when the legislature has noble intentions. Second, bad legislative intent sometimes is going to be difficult to prove. Legislators often will have an incentive to hide incumbency or party-protecting intent. Third, a rule premised on proof of bad legislative intent will be easy to circumvent, and could quickly become useless rule for policing anti-competitive election laws.

Part II argues that proof of bad legislative intent should not be sufficient for courts to strike down election laws on constitutional grounds because the test will allow for more arbitrary and pretextual judicial decisionmaking. The risk exists because it is sometimes difficult to draw the line between good and bad legislative intent, even among the class of laws that appear to be driven, at least in part, by anticompetitive aims.

Part III then discusses my alternative to an intent-based test. I argue for a careful balancing of asserted state interests against the rights of individuals and groups to engage in collective action for political purposes. Although courts have purported to engage in balancing, balancing has been tepid (or even a sham) and its protections against legislative self-dealing largely illusory. I offer recent examples of the courts' weak balancing efforts. Courts should engage in closer means-ends scrutiny.

Finally, Part IV uses the analysis developed in the first three parts to offer some very tentative thoughts about how the arguments against reliance on bad legislative intent in the election law context might apply to other constitutional claims, such as Establishment Clause, free speech, and race discrimination claims.

Keywords: election law, legislative intent, ballot access, campaign finance, voting rights, Munro v. Socialist Workers Party