In a close and insightful reading of Chief Justice Roberts’ opinion in McCutcheon, reproduced here with his permission from the election law listserv, Marty Lederman has called attention to this first paragraph:
There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options. (McCutcheon v. FEC, 134 S.Ct. 1434, 1440-41).
The right that Roberts cites—the right to participate in the electoral process—is apparently wide in scope and includes a “variety of activities,” including voting. So Marty notes that this rationale does not spring from pure “free speech” jurisprudence, and indeed he argues that “if there were such a basic right, the opinion would make much more internal sense than if viewed through a Free Speech Clause” lens. While disclaiming “naiveté” about the Roberts Court’s commitment to the interests of voters, Marty asserts that if “taken seriously,” this freshly minted right to participate could “be the source of a new flourishing of voting rights and other election-related rights.”
The same paragraph has also struck Sherrilyn Ifill as noteworthy, but she sees it as a derogation of voting rights, “the singular, most important expression of civic participation,” now to treated as no more than “one ‘option’ among a menu of potential means by which one may participate in the electoral process.” Where Marty Lederman sees opportunity, Ifill perceives a blow to “the primacy of voting.”
Who knows what the Chief Justice intended? The first paragraph of his opinion could be a rhetorical throat-clearing without intended doctrinal significance. But if, in Marty’s words, this language is to be “taken seriously,” it could point in a direction very different from the one that Ifill is concerned about. Something like this happened in the case of the “equal protection argument” articulated in Bush v. Gore. It could, perhaps, happen here.