Baker, Bush, and ballot boards: the federalization of election administration.

• Author: Tokaji, Daniel P.
• Position: Law Review Symposium 2011: Baker v. Carr After 50 Years: Appraising the Reapportionment Revolution

INTRODUCTION

"We conclude that the complaint's allegations of a denial of equal protection present a justiciable constitutional cause of action.... The right asserted is within the reach of judicial protection under the Fourteenth Amendment." (1) So wrote Justice William Brennan in Baker v. Carr, a case that heralded a new era in the U.S. Supreme Court's election law jurisprudence. There are many dimensions to Baker. The most obvious is the lifting of the barrier on judicial involvement in redistricting through its redefinition of the political question doctrine. (2) This set the stage for extensive federal judicial intervention in the process of drawing districts, first through Reynolds v. Sims (3) and the other "one person, one vote" cases, and ultimately through enactment and judicial application of the Voting Rights Act of 1965 ("VRA"). (4) We might call this series of developments the "federalization of redistricting."

Important as Baker's ramifications for the drawing of legislative districts were, they are not our primary focus here. This Article will instead address the broader impact of Baker v. Carr in making the federal courts important players in the electoral process. Our specific focus is on the federal judiciary's increasingly important role in election administration. By election administration, we mean the set of electoral practices--from voting machines, to voter ID, to provisional ballots, to voter registration--that were mostly ignored by the general public and most scholars before 2000, but have since become hugely important in both realms. Until 2000, election administration was almost exclusively a matter of state law and local practice, with a very limited federal overlay. While election administration is still mostly a matter of state law and local practice, the federal government--especially its courts--plays a more significant role today than was the case in the last century.

Several related developments account for this increased federal presence in election administration: (1) more federal litigation, including claims arising under the U.S. Constitution and (2) greater public attention to this set of issues, which led to (3) enactment of the Help America Vote Act of 2002 ("HAVA"), (5) the most comprehensive (if not most significant) (6) federal intervention in election administration in American history, which in turn led to (4) more federal statutory claims in federal court. This is the set of developments that we collectively refer to as the "federalization of election administration."

To understand the (partial) federalization of American election administration during the past decade, it is necessary to discuss another big case, one that remains a brooding omnipresence hovering over this area of election law: Bush v. Gore. (7) At the risk of hyperbole--and with some caveats--we contend that Bush can be seen as the new Baker. It set the stage for federal lower court judges to play a much more active role in policing the administration of elections, just as Baker did with the redistricting process decades earlier. This is exemplified by the remarkable litigation over an obscure judicial race in southwestern Ohio, which has resulted in published decisions from both federal courts (Hunter v. Hamilton County Board of Elections)s and a state court (Ohio ex rel. Painter v. Brunner) (9)--as well as a not-too-subtle struggle for power between the federal and state courts. Underlying these cases is an extremely important question concerning the authority of federal courts in overseeing election administration.

We also argue that the increased federal court involvement in election administration is a good thing, given that federal judges are insulated from partisan politics in a manner that American electoral institutions (and for that matter state judges) mostly are not. While other countries have electoral institutions that enjoy some degree of independence from partisan politics, we generally do not--certainly not at the federal level, not at the state level, and mostly not at the local level. Because of the federal courts' relative insulation from partisan politics, it is desirable that it play an active role in overseeing federal elections. This role is a positive development and one that partially stems from Baker as well as Bush.

Our argument regarding the partial federalization of election administration proceeds in three parts. Part I revisits Baker v. Carr, arguing that the case was really about federalism. What we mean by this is not that it protected state sovereignty, but the opposite: that it took state sovereignty off the table as a justification for the political question doctrine and thereby transferred authority over redistricting from state legislatures to federal courts. Part II suggests that Bush has played a comparable--though not identical--role with respect to election administration, resulting in a more active role for the federal judiciary in this realm. Part III argues that this is a good thing, notwithstanding the tension it has created between the federal and state courts, exemplified in Hunter. Federal courts do and should hold the trump card in this nascent conflict, as they are the American institution best-suited to adjudicate election-related disputes.

1. BAKER V. CARR AND FEDERALISM

   In Baker, the Court was presented with a challenge to a legislative apportionment map that had not been altered since 1901, despite significant population growth and demographic changes in the intervening six decades. (10) The majority held that the case was justiciable. (11) It devoted a considerable portion of its opinion distinguishing precedent that might be understood to require otherwise. (12) Justices Felix Frankfurter wrote a vigorous dissent, excoriating the majority for allegedly "revers[ing] a uniform course of decision established by a dozen cases ...[,] a massive repudiation of the experience of our whole past...." (13)

   Nowadays, we tend to focus on Baker's significance in the judicialization of redistricting--that is, in transferring power from legislators to judges. But an equally important aspect of the case is the federalization of redistricting, transferring power from the states to the federal government. Put another way, Baker was important as much for what it took away as for what it gave. It took away one of the primary justifications--maybe the primary justification--for the political question doctrine that had existed in prior decades: respect for state sovereignty. (14) This opened the door to federal courts policing the redistricting process, an area that was previously reserved for state legislatures and courts.

   To understand this dimension of Baker, it is helpful to review its famous list of factors that define political questions:

   Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. (15) What is missing from the list is respect for state sovereignty. Before Baker, avoidance of infringement on state's sovereign prerogatives was one of the principal justifications for federal courts declining to decide a case on political question grounds, as we explain below. But after Baker, the political question doctrine is about separation of powers, not federalism. (16)

   To grasp this change, it is helpful to compare Baker to Luther v. Borden. (17) Luther arose out of the Dorr Rebellion. (18) The conflict began when a constitutional convention was convened in Rhode Island and purportedly created a new state government, while the old government--still operating under the rules of a prerevolutionary, "unrepublican" English charter--declared martial law to maintain power. (19) Plaintiffs wanted the Court to decide which of two rival governments in Rhode Island was the legitimate one. (20) As Chief Justice Roger Taney put it at the start of his opinion for the Court, with no small amount of understatement, the case arose "out of the unfortunate political differences which agitated the people of Rhode Island in 1841 and 1842." (21) The specific event precipitating Luther was the breaking and entering the home of Martin Luther, a leader of the new constitutional government (which had extended voting rights to all men over twenty-one who had resided in the state for one year), (22) by Luther Borden and other officials of the old charter government (which had limited voting to freeholders). (23) Luther brought a trespass claim against the old government's officials, arguing that the trespass was illegal because the old government was unlawful under the Republican Guarantee Clause of the U.S. Constitution. (24) Plaintiff thus sought to use the arrest as a vehicle for obtaining a judicial determination of which government was the legitimate one. The Court refused to take the bait, declaring the case non justiciable.

   What is most significant about Luther, for our purposes, is why the Court refused to take the bait. Contrary to what one might think from reading Baker's description of Luther, the Court's rationale was not only, or even mainly, about separation of powers. (25) It was, instead, grounded in federalism. Chief Justice Taney's opinion mentions the fact that "the political department has always determined whether the proposed constitution ... was ratified or not by...