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Fig Leaves and Tea Leaves in the Supreme Court's Recent Election Law Decisions

42 Pages Posted: 2 Feb 2009 Last revised: 28 Apr 2009

Nathaniel Persily

Columbia Law School

Date Written: 4 24, 2009


This Article, which will appear in the Supreme Court Review, reads the fig leaves and tea leaves in the five election law decisions the Supreme Court handed down during the 2007-2008 term. The fig leaves are the strategies the Chief Justice has used to craft consensus in these cases. In particular, the Court has massaged the doctrine concerning facial and as-applied challenges in such a way as to leave more divisive election law controversies for another day. It has also buried any concerns the Justices have previously voiced concerning incumbent or party entrenchment in the enactment of election laws. In reading the tea leaves from these decisions, the Article describes the signals the the Court has sent regarding most of the critical election law controversies that have preoccupied it in recent years: campaign finance, voting rights, redistricting and regulation of political parties.

Keywords: election law, redistricting, voting rights, campaign finance

Suggested Citation

Persily, Nathaniel, Fig Leaves and Tea Leaves in the Supreme Court's Recent Election Law Decisions (4 24, 2009). Supreme Court Review, Forthcoming; Columbia Public Law Research Paper No. 09-200. Available at SSRN:

Nathaniel Persily (Contact Author)

Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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