Hope springs eternal, though. Courts throughout the country, including state courts operating under state constitutions—most recently Pennsylvania—appear to be waking up to the irreparable damage that excessive partisan gerrymandering is inflicting on American democracy. And, although the Supreme Court once again ducked the issue during the 2017 term, the matter continues to percolate through the lower courts. North Carolina’s blatant statewide congressional gerrymander, which reliably delivers ten safe Republican congressional seats, leaving three seats for Democrats, even when the Democrats win the statewide election, has been invalidated by a federal trial court, while Pennsylvania’s equally egregious congressional gerrymander has been struck down under the state constitution by the Pennsylvania Supreme Court. Maybe in the North Carolina case five members of the Court will bite on a fancy new mathematical formula for measuring unfair electoral inequality that measures the number of wasted votes caused by an excessively partisan gerrymander. But I doubt it. Maybe North Carolina’s own Supreme Court will clean up the mess.
Time has taught me, at least, that the time has come to tie the law of democracy much more closely to the First Amendment. Using equality to protect the right to vote is fine as far as it goes. But it doesn’t go far enough. For one thing, the Supreme Court requires proof of a bad motive. For another, it insists on an objective ideal baseline to measure whether the challenged practice deviates too far from the ideal.
Phony voter ID requirements sneak under the radar because challengers can’t prove a bad motive. Everyone in the country, except a narrow majority of the Supreme Court, knows that the rash of voter ID requirements are aimed at knocking out poor voters. Extreme partisan gerrymandering thrives because, until now, five justices have insisted on an objective definition of fair representation—an impossible task—before deciding when a partisan gerrymander crosses the line and becomes so unfair as to be unconstitutional.
I believe that casting a vote in a competitive election is the quintessential exercise of free speech and association. If, as the Supreme Court has already held, campaign spending is “pure” speech, entitled to the highest level of free speech protection, how can voting be granted no First Amendment constitutional protection at all? Listening to the candidates, assessing their ideas, and casting a ballot for your favorite is at the core of what it means to be an autonomous citizen, free to speak and associate. It seems crystal clear (at least to me) that the right to vote is baked into the idea of individual autonomy and human dignity that is at the heart of the First Amendment.
If, for example, the state permitted a speaker to talk but eliminated the audience, the existential, self-affirming act of speech would not be meaningless (think Prometheus raging at the gods), but it would fall far short of the First Amendment’s protection of the right to chart your own destiny. Similarly, carrying out the democratic ritual of voting in a rigged election, knowing that the outcome of the election has already been fixed by political bosses, is not wholly meaningless. It is an existential act of faith in democracy and an important assertion of individual dignity. But it falls far short of the right to self-government and the individual and collective intensity that infuses genuine First Amendment activity when a speaker or voter believes that her speech or her vote actually matters in shaping her destiny.
More than twenty-five years ago, in Burdick v. Takushi, a majority of the Supreme Court held (wrongly, I believe) that voting is merely a technical way to cumulate preferences, not an exercise in speech or association. Accordingly, the majority ruled that there is no First Amendment right to cast a write-in ballot. But as Justice Kennedy recognized in his dissent, the act of voting, as the culmination of an election campaign, is far more than a mere technicality designed to identify a winner. Parents do not take their children to the polls to celebrate technicalities. Newly enfranchised citizens voting for the first time do not weep because they are engaging in a technical exercise. Millions of Americans did not fight, and too many die, to preserve a mere technical device. Blacks and women did not suffer for centuries in quest of a technicality. Justice White notwithstanding, the act of voting, even if not treated as a form of “pure” speech, should be imbued with First Amendment protection as the communicative act by which a voter expresses his or her preference for self-government. Justice Kennedy was correct in arguing twenty-five years ago that banning write-in votes was unconstitutional because it imposed a significant burden on voter choice, which is protected under the First Amendment.
The excessive gerrymandering cases from Wisconsin and Maryland before the Supreme Court during the 2017 term were Justice Kennedy’s great opportunity to use his Burdick dissent to rejuvenate the democratic process. Sadly, at eighty-two years of age, Justice Kennedy seemed unable to muster the intellectual force needed to stand against his four Republican colleagues. Instead, with history in his grasp, Justice Kennedy slipped away into a well-earned retirement without putting his 1992 dissent into law. It was a tragedy for American democracy. Partisan gerrymandering, unnecessary voter ID requirements, and unfair voter purge statutes could not have survived a renewed recognition by Justice Kennedy that voting is protected by the First Amendment.
Challengers to extreme partisan gerrymandering returned to the Supreme Court in the 2018 term, this time facing Justice Brett Kavanaugh, who succeeded Justice Kennedy. The new case involves the effort by the Republican-dominated North Carolina legislature to gerrymander Congressional lines to give Republicans a 10–3 edge in a 50–50 state. The case is once again paired with a Democratic effort to gerrymander a single safe congressional seat in Maryland. If the five Republican justices continue to refuse to invalidate partisan gerrymandering this time around, I fear that the issue will be all but dead in the federal courts until the Court’s personnel changes—by the ordinary processes of retirement, or the extraordinary process of court-packing.
Nothing in the Constitution requires a nine-person Supreme Court. The Court began in 1788 with six members, then went down to five in 1800, then back to six in 1801, then seven, eight, and nine, even reaching ten before the number slipped back to the present nine. Franklin D. Roosevelt, frustrated by the Court’s refusal to approve the New Deal, threatened to add six additional justices, one for each justice over seventy. Roosevelt’s effort failed as a formal matter, but it probably bluffed several justices into changing course and upholding the National Labor Relations Act. Contemporary observers called it “the switch in time that saved nine.”
If one issue could justify a modern effort to pack the Court, it would be the need to protect the right to vote and the right to fair representation from a Court that refuses to lift a finger to protect American democracy.
But the fight is not over. The Wisconsin and Maryland cases are before the Supreme Court once again, albeit a Court without Justice Kennedy. Maybe the justices will honor Kennedy’s thirty years of service on the Court by finally accepting his dissent in Burdick. Partisan gerrymandering can also be attacked in the state legislatures, in state courts under state constitutions, and in federal courts under the First Amendment. Viewing the vote as an exercise in communication is deeply rooted in our national heritage. Indeed, for much of the nation’s early history, voting was a public act by which an adherent openly declared himself as a supporter of one or another of the candidates. We called it viva voce voting. George Washington, Thomas Jefferson, James Madison, Benjamin Franklin, John Adams, John Jay, and Alexander Hamilton—the Founders who built our nation—all proudly cast their ballots publicly, viva voce. It’s the way Congress votes today.
The adoption of the secret ballot (a reform imported from Australia) during the late nineteenth century shifted the declaration of support from a public setting to a private voting booth, but the expressive nature of the vote remained unchanged, except that it was now a form of anonymous speech directed toward the government official who counts the votes. Whether public or anonymous, though, the communicative act of voting is the declarative culmination of a qu
intessential exercise in human dignity that cries out for First Amendment protection.
Surely, a fair opportunity to declare your support for a candidate with a genuine chance to win is as entitled to First Amendment protection against systematic state attack as is unlimited campaign spending, unlimited campaign fund-raising, nude dancing, flag burning, cross burning, hate-mongering, lying, selling violent video games to children, depicting the violent death of small animals, advertising toothpaste, threatening an ex-spouse on the internet, spewing racist epithets, and wearing T-shirts with political slogans to the polls, all of which have been granted First Amendment protection by the current Supreme Court.
It wouldn’t take much for the Court to recognize a First Amendment right to vote. On numerous occasions the Court has opined that voting, running for office, participating in electoral campaigns, and interacting with a democratically elected representative are quintessential exercises of free speech, association, and redress of grievances at the core of the First Amendment. Justice Hugo Black said it most eloquently in Wesberry v. Sanders, one of the one-person, one-vote cases: “No right is more precious in a free country than that of having a choice in the election of those who make the laws under which, as good citizens, they must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”
It is time to convert the Court’s often eloquent rhetoric about the intimate relationship between participating in the democratic process and the First Amendment into a First Amendment–based law of democracy.
Deploying the First Amendment to protect the right to vote would mean the end of phony voter ID requirements and excessive partisan gerrymandering. It would also be the end of the slow strangulation of third parties as a serious potential challenge to the duopoly of political power exercised by the two major parties.
During the nineteenth century, American democracy experienced a vibrant multi-party culture, enabling voters to launch repeated challenges to entrenched special interests. The early years of the twentieth century also saw significant third-party movements that forced the major parties to confront difficult issues: Teddy Roosevelt’s Bull Moose run for the presidency; Robert La Follette Sr.’s Progressive Party, which urged restrictions on big business; Eugene Debs’s Socialist Party challenge to the fundamental postulates of capitalism.
While the third-party challengers ultimately failed to attain power, they provided a significant vehicle for voters unwilling to support the two major parties and forced the major parties to alter their platforms in an effort to win back third-party voters. It didn’t take long for the two major parties to cement their duopoly status by freezing third parties out of the game.
Despite the Supreme Court’s belated recognition in 1968 of a constitutional right to run as a third-party candidate, the pols in both parties have succeeded in making it as hard as they can for third parties to run candidates, skating as close to the constitutional line as possible. Often, state law requires third-party or independent candidates to gather a substantial number of signatures on a petition in a short period of time long before the election as the price of getting on the ballot. Often, voters who are associated with a major party are blocked from signing a petition to place a third-party candidate on the ballot. Often, the petitions require detailed information such as a signatory’s Election District. Many third-party candidates can’t satisfy the ballot access requirements. Even when they do, they have been forced to use up most of their limited resources getting on the ballot, leaving them with little or no funding in the general election.
The pols’ favorite technique for eliminating third parties as a serious threat to their power is to forbid minor parties from opening their nominating processes to major-party voters, while forbidding members of minor parties from voting in the primaries of major parties. The hope of the major parties is to build a legal wall around minor parties to minimize their ability to play anything more than a protest role in the democratic process. The legal wall reaches its highest point in the forty-one states that forbid minor parties from nominating the candidate of a major party, even when the candidate wishes to accept the cross-endorsement.
Shutting down the ability of minor parties to cross-endorse the candidate of a major party sounded their death knell as serious forces in American politics. During the nineteenth century, third parties routinely nominated one of the major parties’ candidates and then assembled enough votes to swing the election. Once a third party demonstrated an ability to swing the election, it could force a major party to bid for its support. The Supreme Court’s 1997 decision in Timmons v. Twin Cities Area New Party upholding laws banning cross-endorsement ended that issue-bending process. It also made it impossible for the supporter of a third party to play a role in who wins the election. Deprived by the cross-endorsement ban of a chance to vote for a candidate with a real chance to win, today’s third-party voter faces the Hobson’s choice of defecting from her party in order to cast a meaningful ballot for a candidate with a chance to win or remaining loyal to her party but giving up any chance to affect the outcome of an election. It even sets up a sophisticated form of election fraud by encouraging major party officials (or others) to support (even create) phony third-party candidates designed to draw support away from the other major party candidate. That’s just what the Russians did in 2016 in a successful effort to induce potential supporters of Hillary Clinton to defect to Green Party candidate Jill Stein.
If we were to recognize that voting is a First Amendment right, it would become impossible to turn the act of casting a ballot into such a manipulated non-event. The obvious solution to the third-party problem is the adoption of the Maine preferential voting system that swung the 2018 congressional election in the Maine 2nd District. As we’ve seen, under the Maine system, voters could cast a first-choice vote for a third party, and a backup vote for a major party candidate to support when the third-party candidate drops out.
DEALING WITH BIG MONEY IN U.S. ELECTIONS
That brings us to the final but absolutely necessary effort to increase the perceived value of voting—limiting the power of big money to dominate American elections.
Even in the rare contestable legislative election, or in statewide races for presidential electors, the Senate, and statewide office, where you can’t gerrymander state lines, many eligible voters do not participate because they believe that when big money talks, genuine democracy walks. Too often they are right.
While the closeness of many national and state elections should make it clear how important each vote can be, many Americans continue to believe that a single vote can’t do much against the tide of massive wealth and organized special interests that appear to dominate our electoral process. As long as American elections resemble auctions, with political power for sale to the highest bidders, millions of eligible voters will not think it worth the trouble to cast a ballot.
Sadly, the alienation of millions of Americans from an electoral process awash in big money is a self-inflicted legal wound imposed by the Supreme Court’s confusion of free speech with unlimited campaign spending. More than a half century ago, Justice Felix Frankfurter warned that the nation would rue the day that judges, functioning as amateur political scientists—or, worse, as disguised political partisans—were given the power to shape American democracy. Most of the time I’m confident that Justice Frankfurter was wrong about trusting judges to defend democracy. On balance, the courts have been a positive force in protecting the democratic process, especially if the justices can finally find a way to deal with runaway partisan gerrymandering. But Justice Frankfurter was surely right in warning that judges would make a mess of campaign financing. No rational legislator would vote for the campaign finance system currently imposed on the United States by the Supreme Court.
By upholding the power to limit the size and source of campaign contributions from both supporters and political parties but striking down all efforts to limit the amounts a candidate or an inde
pendent supporter can expend in connection with an election, the justices badly weakened our political parties, but empowered extremely wealthy individuals, huge corporations, and shadowy independent groups to dominate our electoral process. Can you imagine what a competent economist would say about a system that limits supply but refuses to permit limits on demand? It’s Felix Frankfurter’s revenge.
Our dysfunctional, deeply unfair campaign finance process is traceable to six mistakes made by the United States Supreme Court.
Mistake One
In 1976, the justices ruled in Buckley v. Valeo that campaign spending is a form of “pure speech,” entitled to First Amendment strict scrutiny, which requires the government to demonstrate a “compelling state interest” in regulation that cannot be advanced by “less drastic means.” Only one government regulation has ever survived full-scale First Amendment strict scrutiny—the ban on electioneering too close to the polls.
Correction One
Campaign spending is not “pure speech.” Sure, it’s connected to speech. But so are things like burning a draft card, holding a demonstration, and creating a picket line, each of which is treated by the Court as a form of “communicative conduct” entitled to a lesser degree of First Amendment protection, labeled “intermediate scrutiny” by the justices, under which the government often wins.
At most, government efforts to regulate campaign spending should be tested by the more relaxed level of First Amendment protection available to communicative conduct, requiring the government to demonstrate a “substantial interest” in good-faith regulation that is “narrowly tailored” to achieve its goals. What sounds like a lawyer’s technical distinction is enormously important. As a practical matter, almost all efforts at campaign finance reform will flunk strict scrutiny but many will satisfy intermediate scrutiny.
When at Times the Mob Is Swayed Page 8