The U.S. Supreme Court is being asked to take two interesting election law cases. The first is Riley v Kennedy, 07-77. The Governor of Alabama filed his appeal with the U.S. Supreme Court, to settle what happens when there is a dispute between a State Supreme Court ruling in a constitutional election law case, and the power of the federal government under the Voting Rights Act to pre-clear election law changes in certain states. This particular case involves whether the Governor had the right to appoint a county commissioner to fill a vacancy, or whether a special election was required. The U.S. Supreme Court will consider this case at its November 20 conference.

The other case concerns the “millionaire’s amendment” part of the McCain-Feingold law. It is Davis v Federal Election Commission, 07-320. Jack Davis was the 2006 Democratic nominee for US House in New York’s 26th district. The race between Davis and the Republican incumbent, Thomas Reynolds, was very close, but Reynolds won. Reynolds was helped by the “millionaire’s amendment.” That law, passed in 2002, says that when a candidate for Congress spends more than $650,000 of his own money, then his or her opponents don’t need to worry about the $2,300 limit on individual contributions to that opponent. Instead, individuals can give up to $6,900 to the candidate who is running against the wealthy individual.

Davis points out that the U.S. Supreme Court has previously said that the only constitutional rationale for contribution limits is to prevent corruption. So, since the government has said that there is a danger of corruption when an individual gives more than $2,300 to a federal candidate, why is the government letting individuals contribute $6,900 to an incumbent member of Congress? The lower court had upheld the law, finding that Congress wanted to promote equal funding. However, that finding is sharply at variance with what the U.S. Supreme Court has said.

Both of these cases involve federal elections laws. Congress long ago provided that when a constitutional challenge is made to either of these particular federal election laws, only a 3-judge U.S. District Court can hear that challenge. Afterwards, the U.S. Supreme is the next step for lawsuits of this type. The U.S. Supreme Court cannot refuse to express an opinion in these particular types of case. Either the U.S. Supreme Court must summarily affirm the decision of the lower 3-judge court, or it must accept the case for a full hearing.