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November|December 2004
Lost in the Political Thicket By Heather Gerken
Playing the Market By Paul Sabin
Pay Dirt By Dana Mulhauser

Lost in the Political Thicket

The Supreme Court should find something new to say about election law—or start letting others do the talking.

By Heather Gerken

THE SUPREME COURT'S MOST RECENT VOTING RIGHTS DECISION, Vieth v. Jubelirer, suggests that the court has reached an intellectual dead end in election law. The justices' inability to resolve the case cleanly is unwelcome news in light of the presidential election. With the last election marred by Bush v. Gore, one of the most controversial decisions in the court's history, the country is already aware of how risky it is for the court to intervene in the electoral process without the guidance of a workable analytic framework.

Both Bush v. Gore and Vieth are part of a story that began four decades ago. The court has long tried to use a conventional individual rights framework to resolve election-related claims that are really about the structure of the political process. An individual rights framework is suitable for addressing a concrete and personal harm, such as the disenfranchisement of a voter blocked from the polls by an illegal tax or a literacy test. But the framework does not provide adequate tools for resolving other types of election law cases, including the claim in Vieth challenging the fairness of a redistricting plan. As a result, the court now finds itself mired in a doctrinal holding pattern.

If the justices don't radically change course, we face two unappealing prospects. Either the court will withdraw from the field, leaving the fate of our democracy to self-interested legislators, or it will render more incoherent opinions that do as much harm as good. Fortunately, there are better options. Either the court should develop a new way to decide election law cases, or voters and their representatives should create nonpartisan institutions to regulate the electoral process, thus relieving the court of the need to police the politicians who now make the rules. While these solutions may seem abstract this late in the election season, their consequences are tangible. Factors that could determine the outcome of this election (including where and how George Bush and John Kerry spend money, and whether Ralph Nader gets on most state ballots) depend a great deal on how we have regulated—or have failed to regulate—the democratic process in the past.

In Vieth, the court voted 5-4 to reject a Democratic challenge to Pennsylvania's congressional districts, which had been redrawn by a Republican-led legislature after the 2000 census. The Democrats' claim was straightforward: The Republicans deliberately drew bizarrely shaped districts, including one shaped like a dragon, to win two-thirds of the state's 19 congressional seats—even though Republicans make up about half of Pennsylvania's voters.

Vieth contains the court's most public acknowledgment of the problems it routinely encounters in such cases. Faced with Pennsylvania's district map, the justices found themselves all over the intellectual map. In an opinion by Justice Antonin Scalia, a plurality of four pointed to the absence of manageable standards for resolving claims of partisan gerrymandering, and argued that the court should get out of the business of deciding such claims altogether. The dissenters, with opinions by Justices John Paul Stevens, David Souter, and Stephen Breyer, wanted to intervene but couldn't agree on how best to do so. And Justice Anthony Kennedy, in a remarkably forthright concurrence, admitted that he had no idea how to answer that question, but he was unwilling to give up on the enterprise entirely.

It's no surprise that Vieth caused such headaches. Partisan gerrymandering doesn't fit into a traditional individual rights framework. The Democrats argued that the Pennsylvania districting scheme ensured that the Republicans would win a share of seats disproportionate to their share of votes. When a party's voting power has been "diluted," as the Democrats' was, no individual has been denied the right to vote. The claim is about who wins, not about whose ballot gets counted. Yet there is no individual "right" to vote for a winner. In every legislative district, there are, necessarily, some voters whose candidates lose.

The essence of a partisan gerrymander claim, then, is not that your preferred candidates lost, but that candidates from the other guy's party had an unfair advantage because of the way voters were grouped. To resolve that claim, courts must decide whether districts have been drawn fairly. Talk of individual rights fails to fully capture what is at stake. The court cannot simply focus on the treatment of one voter; it must consider whether the treatment of voters throughout the state is a "fair" way to divvy up power.

Such an assessment requires a judgment about how a healthy democracy is supposed to function. Should it emphasize minority empowerment, or is the majority entitled to govern without impediment? And which minorities matter for these purposes anyway? Yet judges usually maintain a studied agnosticism in election law cases, claiming that they have no theory about the way democracy should work. It may seem strange that the people who make rules about how the game of politics is played should claim to have no view on why and how we play it. But it's consistent with the longstanding idea that judges should neutrally enforce the law rather than make discretionary policy judgments.

The Supreme Court's reluctance to engage in structural analysis—to resolve election law claims by considering how our democracy is supposed to function—goes back at least to 1962, the year the Warren Court entered what Justice Felix Frankfurter famously called "the political thicket" by hearing its first claim about how legislative seats are apportioned. Since the turn of the 20th century, state legislatures had refused to redraw electoral districts, even as the census showed large shifts in the population from the farm to the city. Throughout the country, urban districts grew to have 10 or 20 times the number of people as the rural districts had. It is not hard to grasp why state legislators refused to fix the problem: most represented rural districts, and redrawing the lines would have put some of them out of a job.

Yet for six decades the Supreme Court declined to intervene. The voters' claims were "not a private wrong, but a wrong suffered by [the state] as a polity," Frankfurter wrote. In other words, the wrong was an injury to democracy itself, an injury so diffuse that no individual had standing to protest.

In 1962, over Frankfurter's strenuous objections, the court famously changed course in Baker v. Carr. (Some attribute Frankfurter's stroke that term to the switch.) In Baker, a case brought by Tennessee voters challenging the state's failure to redraw its districts, the court announced that vast disparities in the number of voters per district violated the Constitution's guarantee of equal protection under the law. Over the course of the next decade, the court developed what was to become the principle of "one person, one vote"—the requirement that districts contain an equal number of people.

Looking back at Baker through the lens of Vieth, Frankfurter's prescience is striking. Because everyone could vote, the plaintiffs' challenge went to the way the electoral system added up those votes. The court could not resolve such a challenge, Frankfurter argued, without deciding how to divide power among members of the majority and minority—in other words, to make a judgment about how democracy would work in Tennessee.

In response, the wily Justice William Brennan, well known for his ability to piece together a majority, insisted that the court was merely ensuring that a vote in one district counted as much as a vote in another. Brennan's message to his brethren was clear: We are dealing with an individual right, the kind of claim we routinely resolve. We know how to do this.

Today, the Supreme Court continues to follow Brennan, and Frankfurter's position has support only among academics. Election law cases are adjudicated as individual rights claims. The problem is that Frankfurter was right. Often the court is determining how the political process will be structured—what role political parties play, how much power underdog groups will wield, how much political competition there will be, and what form it will take. Yet the devices the court is using, all pulled from the individual rights toolbox, are ill suited for the task.

TAKE GEORGIA V. ASHCROFT, possibly the most important voting rights case in the last decade. Handed down in June 2003, the decision is the latest in which the court has been asked how much power the Voting Rights Act guarantees to racial minorities. States sometimes dilute minority votes the same way that Pennsylvania diluted Democratic votes, by packing or scattering them. In challenges brought during the 1970s and 1980s, it was easy to see that these practices were harming African-Americans or Latinos, who could not elect a single candidate of their choosing. By the time of Ashcroft, by contrast, the question for the court was whether black voters were better off electing some representatives on their own (in "majority-minority districts") or helping elect a larger number of representatives—perhaps even enough to ensure a Democratic majority in the Georgia legislature—by joining with like-minded white voters. Even the famously pragmatic Justice Sandra Day O'Connor took the unusual step of citing Hannah Pitkin, the political theorist, in acknowledging that the claim of the Georgia plaintiffs was really about what kind of representation people deserve in a democracy.

Finally, consider the last of the recent election law trilogy, McConnell v. FEC, decided last December, in which the court upheld the sweeping campaign finance reform that Congress passed two years ago in the McCain-Feingold bill. The majority opinion, jointly authored by Justices O'Connor and Stevens, was mechanical and unreflective. Even ardent supporters of McCain-Feingold were taken aback by the opinion's sloppiness. Viewed against the background of the court's election law jurisprudence, however, McConnell reveals the justices going through the motions, reciting doctrinal mantras, like the right to free speech and the interest in preventing corruption among elected officials, without bothering to work through their implications. The language of individual rights seems too abstract to capture what is at stake here; it offers categories for labeling arguments, but doesn't provide much intellectual traction. The paradigm, or at least the court, is exhausted.

McConnell, in short, is a less conspicuous example of what Justice Kennedy told us the court was doing in Vieth: treading water. We are witnessing a doctrinal interregnum. The question is where the court will go from here, a question that takes on increasing importance in an election year. Muddling through is a time-honored practice in judging, as in politics. But it is costly. The court's election law opinions provide little guidance to lower courts or legislatures. Worse, they allow the justices' own political commitments to influence case outcomes beneath the surface, leaving the court vulnerable to the type of criticism that followed Bush v. Gore.

WHAT TO DO? THE VIETH PLURALITY, led by Scalia, seeks a retreat, a return to the days when the court left the regulation of politics to politicians. Scalia argues that the court's efforts to keep partisanship from tainting the districting process have failed, and he urges his colleagues to withdraw from this patch of the political thicket.

That would be a mistake. State legislators care too much about preserving their power to be left to their own devices. The court continues to face the dilemma that plagued Frankfurter and Brennan: The self-interest of elected state legislators can undermine democratic values, while the intervention of unelected judges can promote them.

To address this ongoing problem, Justice Breyer has been trying to reframe election law claims in structural terms, casting them as democratic or participatory harms. (Frankfurter would have called them "injuries to the polity.") And in identifying those harms, Breyer seems ready to talk about democratic theory, to describe what a well-functioning democracy looks like.

In our current system, this is the court's best option. The justices ought to be forthright about what they are doing when they regulate the political process by engaging directly with the theoretical choices inherently involved in that endeavor. Otherwise they will not avoid making judgments about democracy, but will merely cloak those judgments in the ill-fitting language of individual rights.

Breyer's strategy will be hard to pull off, however. Scholars, who don't have to worry about pulling together a judicial majority, have yet to fully articulate how a court should remedy the diffuse harms American democracy suffers when elections are not competitive, when political representation is inadequate, or when money takes over the legislative process. That's not surprising. No one wants to give judges license to engage in free-form democratic engineering. But it's hard to identify sensible ways to limit judicial discretion outside an individual rights framework, where the focus on concrete personal injuries has appropriately limited what judges can do. That these problems affect all of us makes them important—and also makes them harder for judges to remedy. A structural path is the right one under the circumstances, yet it's sure to be bumpy.

The best option, then, is to change the circumstances in which election law claims arise. The court has already shown its willingness to defer to the judgments of other institutions about how American democracy should be structured. In McConnell, for example, the court granted considerable deference to Congress's judgments about the effect of money on elections. In Ashcroft, the court deferred to local African-American representatives, including the civil rights icon John Lewis, in finding that Georgia's districting plan didn't harm racial minorities. Perhaps it would be more precise to say that the Ashcroft court deferred to a process, the one by which the districts were drawn.

Ideally, deferring to the process would be a good choice for the court. Judges may be better at figuring out what a fair districting process looks like than at making judgments about the fairness of the plan that results. In the current system, however, deferring to a process run by self-dealing legislators is little better than Justice Scalia's solution of not intervening at all.

For this reason, we need a new regulatory strategy. Samuel Issacharoff of Columbia Law School has argued that the court ought to give its stamp of approval only to districting plans that have been drawn by nonpartisan districting commissions like Iowa's, whose members' jobs do not depend on the lines they draw. If every state had a nonpartisan commission, the court might decide to intervene only when necessary to ensure that the process, rather than the outcome, was fair. A more radically democratic solution comes from British Columbia, which is redesigning its electoral process from scratch. The architects of the new design? One hundred and sixty randomly selected citizens of the province, who will spend months analyzing the current process and potentially devising an overhaul that would then be put to a referendum vote in 2005.

As we obsess about political outcomes at home, it's worth reflecting on how democratic institutions shape, and even predetermine, those results. It's heartening that the differing views about how to regulate the political process don't map neatly onto left-right divisions. Even in this closely divided country, and on our closely divided Supreme Court, a coalition for change is possible. The question is whether we are ready to spend as much energy thinking about the structural health of our democracy as we devote to the outcome of this presidential race.

Heather Gerken is an assistant professor at Harvard Law School.

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