Two vignettes demonstrate the real-world limits of equality-based protection of democracy. In my younger days, one of my more pleasant duties was to participate in the Appellate Judges’ Seminar held at NYU Law School each summer for newly minted appeals court judges. One particularly enjoyable summer, I was delighted to see considerably more African American judges than usual in attendance. The judges cheerfully explained to me that they were the first black appellate judges elected in Louisiana since Reconstruction ended in 1877. When I asked how this could be so, they told me the story of the seven-member Supreme Court of Louisiana. Five Louisiana Supreme Court justices were (and still are) elected from fixed judicial districts throughout the state, white voters comfortably outnumbering blacks in each district. Two justices were—and are—elected from the City of New Orleans. If the single-member judicial system used elsewhere in the state had been applied in New Orleans, one of the districts would have been black-controlled and almost certainly would have elected Louisiana’s first black supreme court justice. Instead, beginning in 1921, Louisiana has elected two supreme court justices at large from a multimember district covering the entire city, so that the city’s white majority would control the election of both justices.
How, you are probably asking, could anyone get away with such blatant electoral racism? The answer lies in the insistence by the Supreme Court that black voters challenging the scheme were required to prove that the legislature’s decision to use a multimember judicial district in New Orleans was motivated by an intentional desire to limit the power of black voters.21 So, savvy Louisiana lawmakers told themselves—and everyone else—that the reason for the New Orleans multimember judicial district was to establish a unified urban judicial constituency. And they got away with it for decades, because it was impossible to disprove the legislators’ bedtime story.22
Years later, I got my own taste of equality-based protection in action. The presidential election of 2000 turned on the disenfranchisement of almost a quarter of Florida’s otherwise eligible black male voting population because of past criminal history. In an effort to slam the barn door after the election, or at least repair the door for future elections, I joined a team of Brennan Center lawyers in challenging the constitutionality of Florida’s felon disenfranchisement laws. Florida’s original felon disenfranchisement provisions were a product of its 1868 constitution. Like Alabama’s of 1900, the 1868 Florida felon disenfranchisement provisions had clearly been enacted to undercut the Fourteenth Amendment’s guaranty of equal treatment by indirectly suppressing the black vote.23 Faced in 1868 with an ultimatum—ratify the Fourteenth Amendment or don’t rejoin the Union—Florida came up with the ingeniously evil device of ratifying the Equal Protection Clause and then eroding its effect on voting by enacting broad felon disenfranchisement rules that would disproportionately affect black citizens. While some poor whites were disenfranchised, the defined crimes (for instance, not paying debts), coupled with racially discriminatory prosecution patterns, were tailored to ensnare a hugely disproportionate number of blacks. That’s just what happened.
In 1974, Florida adopted a new state constitution that, without public debate or discussion, simply reenacted the 1868 felon disenfranchisement provisions almost word-for-word, continuing the disenfranchisement of about 25 percent of Florida’s black males. Suing on behalf of several disenfranchised black voters, the Brennan Center argued that reenacting a state constitutional provision that had initially been adopted in order to suppress the black vote and that would continue to disenfranchise a quarter of the state’s black male voters could not launder the law’s original unconstitutional taint. At a minimum, we argued that Florida had the burden of demonstrating that it had reenacted the originally racist provisions for a legitimate purpose having nothing to do with disenfranchising its black male population. We got nowhere. The Miami federal judge insisted that his hands were tied by the Supreme Court’s ruling that a disenfranchised voter must prove discriminatory purpose before invoking the Fourteenth Amendment. It was, he ruled, the job of the black challengers, not the State of Florida, to demonstrate the true motive for the 1868 felon disenfranchisement provision’s literal reenactment in 1974. Since the long-dead white politicians who did the deed had been much too shrewd to say anything about why they were reenacting a provision that wiped out a quarter of the state’s black male vote, the black voters lost in Miami, just as they had lost in New Orleans.24 Despite a heroic effort by Judge Rosemary Barkett to shift the burden of proof on racial motive to Florida where it belonged,25 the full circuit court affirmed the Miami judge, and the Supreme Court didn’t even deem the case worthy of review.26
Contrast that approach with the Supreme Court’s treatment of cases where the white majority actually tries to help minority voters. For most of New York City’s history, political power was exercised by shifting coalitions of white voters, with blacks and Hispanics all but left out of the power equation. In 1960, for example, despite a massive black population, Brooklyn had almost no black representation in Congress. In the 1960s and ’70s, the electoral map of Brooklyn was repeatedly tweaked in an effort to increase black representation. Wearing my ACLU hat, I helped defend Brooklyn’s benign racial reapportionment against a challenge by Orthodox Jews who claimed that their local voting power had been sacrificed to aid blacks. I hated the idea of pitting two politically weak minorities against each other in a scramble for scraps from the majority’s table, but I couldn’t think of an alternative way to provide blacks in Brooklyn with fair representation in Congress. The tweaked Brooklyn electoral lines barely scraped by with a fragmented 5–4 Supreme Court victory,27 but the handwriting was on the wall. A few years later, when the white-controlled North Carolina legislature sought to redraw congressional district lines to maximize the likelihood that more blacks would be elected to Congress after a century of racial exclusion, five members of the Supreme Court ruled that such an intentionally benign use of race was unconstitutional racism.28
The North Carolina decision may well be doctrinally defensible as a matter of equal-protection jurisprudence. It unleashes withering judicial scrutiny on a purposeful use of race by the government. Even on a purely doctrinal level, though, I believe that the Court erred in refusing to recognize the good faith effort by the white majority to enhance black congressional representation as a justifiable use of racial criteria to correct for past injustices. Whatever its merits as a pure equality case, though, viewed from the perspective of democracy the decision is indefensible. As a matter of democracy, why shouldn’t the white political majority be permitted to help marginalized black voters (who had been the target of exclusionary practices for more than a century after emancipation) obtain fair democratic representation as quickly as possible?
So under current equality-based rules protecting democracy, cynical motives often triumph because they can’t be proved, while benign motives are penalized. Under Madison’s democracy-friendly First Amendment, the outcomes would be reversed. Laws making voting more difficult would be invalidated under a First Amendment that is concerned with the effect of a challenged law on voting, not merely its purpose, while a law enacted by a white majority making it easier for historically marginalized groups to obtain fair representation would be welcomed as an effort to enhance democratic fairness.
PARTISAN GERRYMANDERING
Once the electorate has been formally defined and the scope of the political majority’s power to suppress turnout has been established, the quality of any democracy is dependent on its mechanics. Unfortunately, as Justice Harlan warned, a formal equality test fails to provide adequate constitutional underpinning for the mechanics of democracy. It turns out that everything can be equally awful.
Under the Supreme Court’s formal equality test, the “one person, one vote” rule is vulnerable to the massive partisan and incumbent gerrymandering that has distorted fair representation, rendered votes substantively unequal, and turned far too many American legislative elections into mean
ingless charades. The problem begins and ends with Justice Brennan’s strategic decision to use the Fourteenth Amendment, not the First, as the vehicle to police fair democratic representation. Under pressure from Justice Frankfurter, who insisted that unelected judges lack the capacity to develop a constitutionally enforceable right of fair democratic representation, Justice Brennan fell back on formal mathematical equality. He asked us to imagine two legislative districts—District A with 10 voters and District B with 100 voters, each electing one representative to a legislative body. In such a radically malapportioned world,29 each voter in District A has a tenth of a say in who wins, while the District B voters have only a hundredth of a say. After doing the math, Brennan triumphantly announced that malapportioned election districts inevitably result in votes of unequal mathematical value. It was as though voters in the sparsely populated rural district had ten votes each, while those in the densely populated urban district each had only one vote.
The math was fine and the outcome welcome, but the Court’s failure to recognize a First Amendment principle of fair representation severely weakened the ability of the Constitution to protect the democratic process. The real problem in most malapportionment cases isn’t highly attenuated mathematical voting differentials in different districts. Is there any real-world difference between a congressional vote that counts 1/675,000 and one that counts 1/665,000? The real-world problem is that less than 50 percent of the population can wind up controlling much more than 50 percent of the votes in the legislature. That’s not merely unequal, it’s undemocratic. But without a theory of what it means to have fair representation in a democracy, judges can’t confront the problem directly. The fate of the “one person, one vote” test demonstrates the point.
An unintended effect of the “one person, one vote” cases was to require, beginning in 1962, a full-scale redrawing of all legislative lines every ten years to keep pace with population changes reflected in the constitutionally required decennial census. Politicians lost no time in exploiting such a recurring opportunity for self-protection and partisan advantage. Before you could say “one person, one vote,” equally populated election districts were being redrawn everywhere with the lines carefully jiggered to make sure that incumbents always won and to maximize the partisan advantage of the political party in power. Democrats gerrymandered California, Texas, and New Jersey. Republicans made a mockery of fair representation in Pennsylvania, taking a swing state with a roughly fifty-fifty party affiliation and delivering more than two thirds of the state’s congressional seats to the Republican Party. When Republicans got control of Texas, they did to the Democrats what the Democrats had done to them, resulting in the spectacle of Democratic legislators unsuccessfully trying to hide out in Oklahoma in the hope of preventing a legislative quorum in Texas. In Colorado and Texas, the pols couldn’t wait for the ten-year reapportionment bonanza. They decided to rejigger the lines every five years. In recent years, Republicans made a mockery of fair representation in North Carolina and Ohio, packing huge numbers of black Democratic voters into a few landslide districts, enabling white Republicans to win safely, if more narrowly, elsewhere. Democrats hit back in Maryland and Illinois. The best guess is that about half of the Republicans’ current thirty-four-seat majority in the House of Representatives is attributable to carefully gerrymandered districts. The partisan gerrymandering toll in state and local legislative elections is far higher. In New York State, for example, the major parties cut a sweetheart deal just after World War II. Election districts in the lower house (the state assembly) were rigged to ensure control by Democrats, while the district lines in the State Senate races were drawn to ensure control by Republicans. Since New York politicians worship at the Church of Our Lady of Perpetual Reapportionment, the New York lines were constantly redrawn over the years so that in a state that swung periodically from Democratic to Republican control and back, Democrats controlled the Assembly and Republicans controlled the Senate for more than a half century. New York’s political establishment reached its epiphany when the incumbent legislative reelection rate in the state approached 100 percent.
As the orgy of gerrymandering unfolded, voters implored the Supreme Court to do something about the virtual elimination of contested legislative elections from American democratic life. From a democracy-centered perspective, the Court’s response has been appalling. Initially, six justices voted to condemn excessive political gerrymandering as unconstitutional but required a voter seeking judicial help to show that the gerrymander was so extreme she had been effectively excluded from voting.30 The politicians loved that test because political gerrymandering is never so extreme that it makes it impossible to vote; it just makes it almost impossible for one side to win. After twelve years of futility in the lower courts, during which only one political gerrymander flunked the Court’s impossibly strict test, the Court finally withdrew the test, only to substitute something worse.31 Four Republican justices now argue that courts are wholly incapable of providing equality-based relief against political gerrymanders because it is impossible for judges to set an objective baseline from which to measure deviations from politically fair representation. Four Democratic justices advance three different theories arguing that excessive partisan gerrymandering violates the Equal Protection Clause because it unfairly enhances the voting power of the political majority. Justice Kennedy plays the tease, holding out the theoretical possibility of doing something someday about gerrymandering, possibly under the First Amendment, but never going all the way. The net result has been judicial paralysis and the virtual disappearance of genuinely contested legislative elections from much of the American landscape.
Can you imagine what Madison would say about a democracy without contested legislative elections? Ironically, Senate elections, once the province of state legislatures, are often the only place where citizens have a real choice about whom to elect—and that’s only because the pols haven’t figured out yet how to gerrymander state lines.
The Supreme Court’s self-imposed paralysis has led to a field day for professional politicians, as technology increasingly allows sophisticated political line drawing that lets party leaders and lobbyists divide the electorate into preordained slices, leaving only a few genuinely contestable elections. In effect, the Supreme Court’s refusal to deal with partisan gerrymandering has made our democracy even worse than that of ancient Athens, which often substituted random choice of officials by lot for actual elections. Instead of trusting to luck, we empower political bosses and incumbents to choose our representatives for us. Bring back Athenian democracy!
If an alien dropped down from Mars and was asked how to deal with two sets of players in the democratic process—racial minorities emerging from almost four hundred years of exclusion from political power and incumbents deeply embedded in the power structure—a reasonable Martian might say, “Don’t let the law help either. Leave them both alone. Now that you finally have a fairly structured democracy, everything will eventually work out for the best.”
Another reasonable Martian might say, “Let the law help both. We need the stability and expertise provided by experienced elected officials, and fairness calls for trying to reconstruct the level of minority representation that would have existed but for past racism.”
A truly wise Martian would say, “Let powerful incumbents take care of themselves. It’s the racial minority that really needs help to balance the books on past exclusion.”
Even a foolish Martian would never say, “Design your democracy to lock the powerful incumbents into office, but don’t give any help to the racial minority.”
Want to bet on what the current Supreme Court says?
SMOKE-FILLED ROOMS
As the Supreme Court sentenced contested legislative elections to death by gerrymander, hope for robust democracy in districts with one-party dominance (natural or artificial) shifted to the nominating process. Even if the general election is a formality, a modicum of democracy still might br
eak out in the primary, where the one-party colossus chooses its nominee. The early Supreme Court precedent was promising. In the 1940s and 1950s, the Supreme Court recognized that the major-party nominating processes are so integral to the general election that, for the purposes of constitutional review, they should be treated as a part of the election itself. So despite the fact that the two major parties are private associations, the Supreme Court treated every part of their nomination process as an integral part of the election itself, even pre-primary private polls. That meant it was unconstitutional to exclude blacks from full participation in the major-party nominating process, no matter how “private” the preliminary proceedings were dressed up to appear.32 Years later, in 1986, the Court also ruled that Connecticut could not forbid the state Republican Party from opening its primary to independents.33 From a democracy standpoint, so far, so good.
When the Republican and Democratic political bosses counterattacked, though, the Supreme Court turned Madison’s First Amendment against democracy. First, the politicians concentrated on neutralizing closed primaries (those open only to party members), arguing that the parties had a First Amendment associational right to protect themselves from “raiding” by hostile outsiders posing as members. Political leaders in New York and Illinois induced the state legislatures they controlled to impose substantial “ideological” waiting periods before a voter was allowed to vote in a closed primary, making it almost impossible for insurgents to recruit new members in order to contest the party bosses’ choice of candidate. In 1972, the Supreme Court upheld a New York State law requiring new party members to wait as long as eleven months before they became eligible to vote in a closed Democratic Party primary.34 Because New York City is largely a one-party town, missing the Democratic primary is the equivalent of missing the general election. The Supreme Court majority didn’t ask whether the waiting period was good or bad for democracy. The majority justices asked only whether, under an equality-based law of democracy, New York had a plausible justification for treating new party members differently from longtime party members. Five justices answered yes, holding that a professed concern over potential interparty raiding was a legitimate reason for requiring new party members to sign up eleven months in advance of the primary, even when the new voters were registering for the first time. Illinois politicians tried to push the ideological waiting period envelope even further, imposing a twenty-three-month voting delay in Mayor Daley’s Chicago. That was too much even for the Supreme Court.35
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