Check your state’s rules about who can participate in primaries. If independents, new voters, and members of other parties are frozen out, the outcomes of primary elections in your state will either drift to the extremes or mirror what the bosses want. Either way, the primary will have failed to enhance voter choice.
One antidote is a move to “open” primaries—full or partial. Many states have adopted partially open primaries, allowing independents and first-time voters to participate even if they are not formal members of the party. A larger number of states have adopted fully open primaries, where any registered voter can participate. California even sought to allow all voters to skip back and forth, candidate by candidate, from one major party to another in a single “blanket” primary, designating one preferred candidate for each office regardless of party affiliation.
It worked: California turnout spiked, candidates became more moderate, and the public’s faith in democracy ticked up. Alas, the Supreme Court shut down the blanket primary because, according to five Republican justices, it violated freedom of association by permitting non–party members too much influence in selecting a party nominee. That leaves the Washington State primary, where all candidates regardless of party membership run in a single non-partisan primary with no party labels, with the top two vote-getters qualifying for the general election ballot, as the best available option for increasing voter participation in the nominating process.
The Supreme Court has upheld the top-two Washington State process, as long as there is no confusion about the party affiliation of the candidates. The top-two single primary system—or, at a minimum, genuinely open primary elections held by each major party—is our best bet for bringing democracy and voter choice into “naturally” uncontestable single-member, winner-take-all districts.
The second flavor of uncontestable election is “artificial.” At least half, probably more, of the country’s uncontestable legislative districts are “artificial,” the result of partisan gerrymandering—careful manipulation of district lines to create rigged election districts where, based on voter registration and past electoral patterns, the candidate of one major party starts out at least 10 percentage points ahead of any potential opponent. While it’s theoretically possible for the handicapped candidate to make up the 10 percent difference, it’s also theoretically possible for pigs to fly.
When a gerrymandered district starts out 60–40 percent in favor of one of the major party candidates, political scientists label it as a “landslide” district. When the spread is 55–45 percent, they call the district “safe.” The few districts that come in at 53–47 or 54–46 percent are labeled “contestable,” while a 52–48 percent spread is called a “swing” district.
Take a good look at the party registration numbers in the congressional districts and state legislative districts in your state. See how many are close enough to fit into the “swing” or “contestable” slots. You’ll be both astonished and disheartened to see how rare it is for you to have a genuinely contestable legislative election, one in which voters, not political bosses, decide the outcome. The usual game these days is for the dominant political party in a state to engage in “pack and crack”—taking advantage of modern technology and data collection to draw lines that pack as many of their opponents as they can into a relatively few landslide districts, while cracking the rest into “safe” districts dominated by the current majority. That allows the dominant party to skew the outcomes of enough legislative elections to entrench its majority for the foreseeable future, even if the political winds change.
As we’ve seen, only an electoral hurricane can upset a well-done partisan political gerrymander. In 2018, in Republican-gerrymandered North Carolina, 53 percent of the eligible voters turned out, with Democrats winning four statewide races (one state Supreme Court seat, giving Democrats a 5–2 majority; and three intermediate appeals court seats), polling about 50 percent of the statewide vote. But the state’s Republican-gerrymandered congressional districts performed exactly as expected—three overwhelming Democratic wins; and ten relatively close Republican victories. So in a state tilting Democratic statewide, voters elected ten Republicans to the House from thirteen districts.
Nowadays, such gerrymanders are primarily a Republican game, but the Democrats did it for years. The single most important step in increasing the worth of the vote in American democracy would be to outlaw excessive partisan gerrymandering. And to do that you don’t need lawyers or the Supreme Court’s permission.
One approach, which has worked in California, Colorado, and Arizona, is to use nonpartisan (or, sometimes, bipartisan) districting commissions to draw fair district lines that seek to enhance contestability and produce a legislature that roughly reflects the political complexion of the state. The problem, of course, is that political bosses don’t want to let go of their stranglehold on the electoral process. One way of going around them is by referendum or initiative. Check to see whether in your state it would be possible to leapfrog the boss-controlled state legislature to place a nonpartisan districting commission before the voters. Arizona voters did exactly that, and the idea was overwhelmingly embraced by the electorate. The Supreme Court upheld it.
If it’s impossible or too expensive to follow the referendum route, the issue can be projected into political debate by having a sympathetic legislator introduce a bill establishing the nonpartisan commission, forcing each member of the legislature to take a stand one way or the other. The problem is getting the issue to an up-or-down vote in the teeth of opposition from the pols, who don’t want to create a clear issue for the voters. If an up-or-down vote is blocked, once the nonpartisan reapportionment issue is on the state’s political radar, it should be possible to launch a slate of highly prominent state legislative candidates who would pledge to enact a fair, nonpartisan districting process and then resign and return to private life, forcing a new election under the new, fair system. Imagine the power of such a single-issue citizen-powered reform slate.
Finally, there’s the courts. Thus far, the Supreme Court has declined to intervene in political gerrymandering cases. Four Republican Supreme Court justices have consistently ruled that partisan gerrymandering can’t be dealt with judicially because it is impossible for judges to decide whether a partisan gerrymander is too “unfair” or too “unequal.” Four Democratic justices have consistently argued that judicially manageable criteria exist that identify when a political gerrymander has gone too far. One justice—Justice Anthony Kennedy—agreed that while political equality doesn’t provide an adequate standard because it’s too subjective, the First Amendment might provide adequate guidance.
Hopes were high in the 2017 term of the Supreme Court that Justice Kennedy would use his power as the swing justice to provide a way out of the partisan gerrymandering swamp. Instead, he joined his four Republican colleagues in ducking the issue yet again, voting to dismiss partisan gerrymandering cases from Wisconsin and Maryland on technicalities and then stepping down from the Court at eighty-two years of age.
President Trump’s nominee to replace him, Judge Brett Kavanaugh, is a Republican stalwart who is likely to join his four Republican colleagues in continuing to reject equality-based challenges to partisan gerrymandering. It’s a long shot, but my sense is that the only chance at persuading a Republican-dominated Court to outlaw excessive partisan gerrymandering is to follow Justice Kennedy’s advice and to couch it as a First Amendment issue. I have long believed that excessive political gerrymandering (indeed, any interference with the right to vote) violates the First Amendment. To my mind, voting is the quintessential act of political expression and association. As such, it deserves intense First Amendment—based judicial protection.
The Founders’ Constitution, drafted in 1787, has at least two embarrassing holes in it. For starters, unlike the roughly contemporaneous French Declaration of the Rights of Man, it says absolutely nothing about equality. Not a word. How could it, when the very creation of th
e new American nation depended on a bargain with the devil about the perpetuation of slavery?
Nor did “equality” get mentioned in the first Bill of Rights, ratified in 1791, which brilliantly protects the individual’s right to be let alone (individual autonomy) but continues to ignore the right of all persons to be treated by the government as an equal. The concept of equality does not make its way into the Constitution until after the Civil War with the adoption of the Thirteenth Amendment in 1865 (barring slavery), the Fourteenth Amendment in 1868 (guaranteeing equal protection of the laws to all persons), and the Fifteenth Amendment in 1870 (barring racial discrimination in access to the ballot). In chapter 4, we’ll look at the doctrinal consequences of giving autonomy a seventy-five-year constitutional head start over equality.
The second embarrassing hole in the Founders’ Constitution directly impacts democracy. The 1787 Constitution, the world’s oldest continuous charter of democratic governance, doesn’t say a word about the right to vote. Neither does the 1791 Bill of Rights.
I like to think that the Founders punted on the voting issue, the way they punted on equality, because they couldn’t bring themselves to codify the then-prevailing, extremely narrow idea of the franchise that excluded women, Jews, Muslims, Native Americans, free people of color, and the poor. I choose to believe that, faced with such an unappealing political reality, the Founders opted to remain silent about voting, leaving the constitutional power to expand the franchise to the future. All in all, the future responded well. Eleven of the seventeen constitutional amendments since 1791 have tried the fill the hole in the Constitution where the right to vote should be. The Twelfth Amendment, adopted in 1804, requires separate Electoral College ballots for president and vice president to prevent a recurrence of the Electoral College tie between Thomas Jefferson and his running mate, Aaron Burr, that almost capsized the election of 1800.
Section 2 of the Fourteenth Amendment experimented with a congressional apportionment formula designed to pressure southern states into allowing recently freed people of color to vote. The experimental formula was never tested because it was superseded two years later by the Fifteenth Amendment, outlawing racial discrimination in access to the ballot. Ironically, the only impact of Section 2 of the Fourteenth Amendment has been to provide a tortured constitutional fig leaf for continuing felon disenfranchisement, a principal technique for preventing black men from voting.
The Seventeenth Amendment (1913) provided for the direct election of senators, taking the power away from deeply corrupt state legislatures. The Nineteenth Amendment (1920) outlawed gender discrimination in access to the ballot. The Twentieth Amendment (1933) shortened the “lame-duck” period that elapses between the November election and the entry into office of newly elected presidents and members of Congress. Originally, the old lame ducks served until March. The Twentieth Amendment seats the new Congress on January 1 and the newly elected president in mid-January. The Twenty-Second Amendment (1951) imposed a two-term limit on the president. The Twenty-Third Amendment (1961) allowed residents of the District of Columbia to vote in presidential but not congressional elections. The Twenty-Fourth Amendment (1964) outlawed the poll tax, which had required voters to pay a fee to vote. The Twenty-Fifth Amendment (1967) clarified presidential succession if a president becomes unable to discharge his or her duties. The Twenty-Sixth Amendment (1971) protected persons eighteen years or older from age discrimination in access to the ballot.
But no constitutional amendment talks about a general right to vote or run for office.
Given the textual hole where the right to vote should be, for most of its existence the Supreme Court said little or nothing about a constitutional right to vote. Apart from a series of important cases seeking to prevent discrimination against voters of color in violation of the Fourteenth and Fifteenth Amendments, the Court for more than 150 years made no serious attempt to protect the rights to vote, run for office, and/or enjoy fair political representation, leaving vulnerable members of the electorate to the tender mercies of local politicians. The result of the Supreme Court’s initial inaction was massive denial of voting rights, especially to voters of color, the hobbling of third parties, rampant malapportionment in favor of rural America, and widespread political gerrymandering by both parties.
The constitutional ground rules changed in 1962, with the Supreme Court’s decisions in Baker v. Carr and Reynolds v. Sims, the famous “one person, one vote” cases, requiring all elected legislators (except United States senators) to represent a roughly equal number of constituents, currently between 700,000 and 750,000 for each House district.
Important as the doctrine of “one person, one vote” is, the unmistakable, if implied, message sent by the justices’ opinions in Baker and Reynolds was even more important—the Court’s acceptance of responsibility for the care and feeding of equal participation in the American democratic process. In the more than fifty years since the Supreme Court’s seminal decision in Baker, the Court has invoked the concept of equality embedded in the Fourteenth Amendment as a backdoor way to protect the general right to participate in the democratic process. The Court’s equality-based reasoning is deceptively simple. If, a majority of the justices reasoned, some people are allowed to vote, run for office, or be represented in the legislature, everyone else must, as a matter of constitutional equality, be allowed to exercise a similar fundamental right, unless the government produces an overwhelmingly persuasive explanation for any unequal political treatment.
Since, as a practical matter, at least one person is almost always going to be allowed to vote, the Court’s equality reasoning functions usefully as a de facto equality-based guarantee of everyone’s right to vote, as long as the Court insists upon a highly persuasive explanation for denying someone the equal enjoyment of the fundamental right to participate in the democratic process. In the decade following Baker v. Carr, the Court did just that, requiring government to prove that any law denying someone an equal opportunity to participate in the democratic process was genuinely necessary to advance a “compelling” governmental interest that could not be advanced by “less drastic means,” a carbon copy of the so-called strict scrutiny test used in many First Amendment cases.
Strict scrutiny is almost always lethal. Whether the context is First Amendment protection of autonomy or Fourteenth Amendment protection of equality, it’s been virtually impossible for a government regulation to survive strict scrutiny. During the 1960s and early 1970s, the Supreme Court, brandishing strict scrutiny, unleashed a remarkable burst of democratic reform, sweeping away most of the barriers that had unfairly hampered participation in the democratic process, especially by the weak and poor. In Reynolds v. Sims, in the name of equal participation in democracy, the Court insisted that all legislative election districts in a state, eventually including both houses of the state’s legislature, must represent approximately the same number of people. In Carrington v. Rash, the Court ruled that soldiers temporarily stationed in Texas were entitled to vote in state and local as well as federal elections as long as the soldiers, who were often black, viewed their military base as their principal place of residence. In Harper v. Virginia Board of Elections, the Court invalidated the poll tax, dooming almost all property qualifications for voting and holding office. In Williams v. Rhodes, the Court recognized an equality-based constitutional right to run for office as a third-party candidate. In Kramer v. Union School District, the Court ruled that all residents affected by an election must enjoy an equal right to vote in it. In Cipriano v. Houma, the Court invalidated a statute limiting the franchise in municipal utility bond elections to property owners and in Phoenix v. Kolodziejski, the Court struck down a property ownership requirement for voting in a local general obligation bond election. In Dunn v. Blumstein, the Court capped a remarkable decade by ending all durational residence requirements for voting.
Brilliantly successful as the Court was in sweeping away most formal restrictions on the franchise in th
e name of equality, the Court’s equality-based protection of the vote ran out of gas before the job was done. As the Court’s personnel changed, beginning in 1973, the new Republican majority made it much easier for the government to justify rules blocking access to the ballot for some but not others. Instead of strict scrutiny, the Republican justices asked whether a regulation blocking voting or access to the ballot was supported by a “substantial” (as opposed to a “compelling”) government interest, whether it was “narrowly tailored” (not whether it was the “least drastic means” of dealing with the issue), and whether it was a reasonable, good-faith effort to advance the government’s interests.
Unlike strict scrutiny, government wins most of the cases under such a watered-down test, which parallels the watered-down First Amendment standard used to review—and uphold—the government’s ban on burning one’s draft card to protest the war in Vietnam. Most important, the Supreme Court ruled in 1976 that proof of bad motive was necessary before the justices would unlimber Fifth and Fourteenth Amendment strict scrutiny artillery, empowering cynical politicians seeking to disenfranchise certain classes of voters to sneak under the Court’s radar by pretending to be doing something legitimate.
Under the Court’s current equality-based defense of democracy, state and local politicians can purge the registration rolls, force folks to show state-issued IDs, and make the act of voting less convenient, even when it’s clear that such harsh behavior isn’t really necessary and even when the new rules disproportionately disenfranchise poor voters of color. The sad truth is that, today, cynical politicians can often get around equality-based protections of democracy by lying about why they are making it harder for certain people—usually poor voters, often of color—to vote.
Equality-based protection of democracy also fails to protect against the widespread practice of political gerrymandering. While the Court has repeatedly confronted race-based gerrymandering, it has refused to intervene in partisan gerrymandering disputes, claiming that an equality-based challenge must provide the justices with an objective way to measure whether a gerrymander flunks the test of political fairness. Reformers have tried five times in the Supreme Court in recent years to come up with such a baseline. The five Republican justices keep saying “not objective enough.”
When at Times the Mob Is Swayed Page 7