Answering questions, questioning answers, and the roles of empiricism in the law of democracy.

AuthorKarlan, Pamela S.
PositionSeventh Annual Conference on Empirical Legal Studies: The Empirical Revolution in Law

INTRODUCTION I. ONE PERSON, ONE VOTE, RACIAL VOTE DILUTION, AND EMPIRICAL ANSWERS TO JUDICIAL QUESTIONS II. CAMPAIGN FINANCE, POLITICAL CORRUPTION, AND EMPIRICAL QUESTIONS TO JUDICIAL ANSWERS CONCLUSION INTRODUCTION

The law of democracy is a field in which line-drawing is often really important. Sometimes, the lines are literal ones, as with redistricting. (1) Sometimes, the lines are theoretical or doctrinal, as with the much-maligned contribution/expenditure distinction in campaign finance law. (2) So there's something striking about the fact that the field also blurs many lines that often seem impermeable-between legal scholars and social scientists, between the academy and practice, between doctrine and empiricism, between normative and descriptive. "Always it is by bridges that we live," the poet Philip Larkin wrote, (3) and those of us who toil in this particular corner of public law cross those bridges every day.

Those bridges are longstanding. (4) Among other precincts, they connect practice and the academy. For example, the National Science Foundation funded a leading empirical study of the effects of the Voting Rights Act that contains a series of state-level studies written jointly by the lawyers who litigated many of the most significant cases and a range of social scientists--among them historians, political scientists, and sociologists--many of whom participated in those cases as expert witnesses. (5) And despite charges that the gap between the academy and the profession has grown so deep that courts no longer read what professors write, (6) that accusation is untrue with respect to the law of democracy. (7)

These connections present an opportunity to reflect on a choice between two very different understandings of what it means to do empirical work. In recent years, some law professors have equated empirical scholarship with statistical analysis. (8) A large number of the papers presented at the Seventh Annual Conference on Empirical Legal Studies (CELS) fit this definition. The two papers to which I refer later in this Essay do too, (9) although neither is a large-scale study: they each focus primarily on what happened in a single round of elections. But there is an alternative, more capacious definition of empirical work, interestingly enough offered by two scholars whose own work largely fits within the narrower frame. Lee Epstein and Gary King see empirical scholarship as work concerned with "evidence about the world based on observation or experience." (10) In their view, "[t]hat evidence can be numerical (quantitative) or nonnumerical (qualitative); neither is any more 'empirical' than the other." (11)

Is there a kind of empirical approach that law or legal training itself offers? Oliver Wendell Holmes famously wrote that "[t]he life of the law has not been logic: it has been experience." (12) A central contribution that lawyers, both within and outside the academy, have brought to scholarship on the law of democracy has been precisely their professional experience and a qualitative sensibility derived from that experience--what Karl Llewellyn long ago called "situation sense." (13) Scholars who litigated the doctrine in their cases and worked with social scientists as experts have then written about the doctrine, the evidence, and the theoretical issues that the doctrine and the evidence raise. The law of democracy has been genuinely interdisciplinary for my entire career, and one of the broader lessons we might draw from that history is that law is a distinct discipline with its own contributions to make. It would be a pity if legal scholarship, like much of contemporary political science, were to adopt the view that the only questions worth asking, and the only answers worth giving, are quantitative or based on models so highly stylized that they omit the messy but important lessons of experience.

Bruce Cain, one of the Framers of the field, long ago observed that "the mix of theory to empiricism varies in different types of election law cases as a consequence of the specific constitutional and statutory framework in which the case is embedded." (14) He pointed to key differences between "the voting/representation cases on the one hand, and the corruption/political association cases on the other." (15) In the remainder of this Essay, I explore these two areas to show the complex relationship between legal and social scientific approaches to the law of democracy. In the representation cases, legal doctrine has asked a series of questions that social scientific methods are well positioned to answer. Legal scholarship also offers a powerful explanation of why the doctrine came to rely on quantifiable empirical propositions. By contrast, in the campaign finance cases, legal doctrine has offered a set of normative answers that social scientific methods may be well positioned to question. But in both areas, situation sense continues to play an important role in understanding the limits both of doctrine and of quantitative empiricism.

  1. ONE PERSON, ONE VOTE, RACIAL VOTE DILUTION, AND EMPIRICAL ANSWERS TO JUDICIAL QUESTIONS

    The Supreme Court began its foray into the political thicket of political representation by focusing on claims of "quantitative" vote dilution. (16) The Court's imposition of one person, one vote in Wesberry v. Sanders (17) and Reynolds v. Sims (18) rendered nearly every state's existing congressional and legislative apportionment unconstitutional. (19) And by requiring decennial revisitation of the allocation of political power, the requirement of equipopulous apportionment set in motion a series of intended and unintended consequences.

    In one sense, Wesberry and Reynolds were profoundly normative decisions. They adopted a particular (and at the time highly contested) political theory. Justice Douglas could say that "[t]he conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing--one person, one vote," 20 but as a matter of historical practice, that was simply untrue. (21)

    Criticizing that theory, Justice Potter Stewart derided one person, one vote as "the uncritical, simplistic, and heavy-handed application of sixth-grade arithmetic." (22) Indeed, "there is nothing quite like the rigidly numerical standard of the one-person, one-vote cases anywhere else in constitutional law." (23)

    But as legal scholars long ago observed, the simplistic, quantitative character of the rule was in fact its attraction, once the realities of litigation are taken into account. As Martin Shapiro explained, "[n]o democratic theorist can state flatly and finally just how much of the 'one man, one vote' principle should be introduced into American politics. He can only make rough adjustments based on estimates of the political consequences." (24) One person, one vote might be a naive and crude formulation of political equality, but it enabled the Court to avoid inserting itself too visibly and too repeatedly into the political process. One person, one vote thus served "the institutional needs of the Court." (25)

    When the Supreme Court turned to claims of "qualitative" vote dilution--in particular, claims by black voters in the South that electoral structures such as at-large elections unfairly excluded them from effective political participation-it again faced a "constitutional and historical imperative" to articulate "a judicially manageable standard." (26) It took essentially a decade for the Court to identify one, and the one it adopted ultimately invoked quantitative social scientific methods. Initially, in White v. Regester, the Supreme Court announced a standard for liability that looked to whether "the political processes leading to nomination and election were not equally open to participation by the group in question [in] that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice." (27) The Court then pointed to a series of essentially qualitative factors-such as a history of racial discrimination and a lack of responsiveness by elected officials to the minority community's concerns--that supported a finding of liability in that case (which involved legislative districts in Texas). The Court recognized that that standard would demand an "intensely local appraisal of the design and impact" of the challenged election practices "in the light of past and present reality, political and otherwise." (28) The Fifth Circuit distilled from the Supreme Court's discussion what came to be known as the White-Zimmer factors. (29) These factors governed the adjudication of racial vote dilution cases until the Supreme Court's decision in City of Mobile v. Bolden, which required plaintiffs to prove that the challenged election system had been adopted or maintained for a discriminatory purpose. (30) The discriminatory purpose requirement often demanded, as it did in Bolden itself on remand, large-scale qualitative empirical research by historians into the motivations for adopting or maintaining the challenged practices. (31)

    Two years after Bolden, Congress amended section 2 of the Voting Rights Act of 1965 to institute a results test that looked at "the totality of the circumstances." (32) The Senate Report accompanying the amendment embraced the White-Zimmer factors as the touchstone of a section 2 violation. (33) Because the statutory standard abandoned the requirement that plaintiffs show a discriminatory purpose, most racial vote dilution litigation after the (1982) amendments has proceeded under the statutory, rather than the constitutional, standard. (34)

    In Thornburg v. Gingles, (35) the Supreme Court imposed a new, threepronged threshold test for claims of racial vote dilution under section (2). The test was derived essentially from a lengthy scholarly...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT