Lost in the political thicket: the court, election law, and the doctrinal interregnum.

• Author: Gerken, Heather K.
• Position: Symposium: The Law of Democracy

During the last year and a half, the Supreme Court has issued three important election law decisions in each of election law's main fiefdoms: race and redistricting, (1) campaign finance, (2) and the regulation of political parties. (3) Each has already been the subject of extensive analysis and critique by specialists in each area. What has been missing from the commentary thus far, including that provided in this Symposium, has been an effort to connect the dots. Thus, in keeping with the move in election law toward understanding it as a coherent field of study, (4) this Essay claims that these three seemingly disparate decisions can be understood as part of a story that began more than four decades ago, when the Court first entered the political thicket. (5) The Court has long tried to use a conventional individual-rights framework--the bread-and-butter of legal analysis--to adjudicate what are often claims about the structure of the political process. (6) An individual-rights framework, however, does not provide adequate analytic tools for resolving such challenges, as the Court's most recent opinions reveal.

Although these problems have long plagued the Court's election law jurisprudence, the cracks in the doctrinal edifice have become sufficiently apparent to prompt a number of individual Justices to call for change. (7) And the Court as a whole seems to be in a doctrinal holding pattern, unsure of where to go next. In other words, we seem to be witnessing a doctrinal interregnum in election law.

Part I of this Essay charts the course the Court has taken thus far, exploring the connections between the Court's three most recent election law decisions and its prior jurisprudence. It argues that, despite their many differences, each case reveals the dilemma the Court now faces in resolving what are fundamentally structural claims with an individual-rights framework.

Part II speculates on the next steps the Court will take. In doing

so, it attempts to do three things. First, it sharpens the terminology deployed in the "rights-structure" debate thus far. Second, it suggests a novel reading of Georgia v. Ashcroft, (8) the Supreme Court's most recent race and redistricting case, as a bridge between the Court's prior strategy for adjudicating vote-dilution claims--policing substantive outcomes--and a more process-oriented approach that deploys a variant of the minority veto. Finally, the Essay closes by reflecting on how courts might use their regulatory powers to create incentives for other institutional actors to work toward improving the structural health of our democracy.

1. INTO THE WOODS

   1. Vieth v. Jubelirer: An Admission of Defeat

      The Supreme Court's most recent election law decision--Vieth v. Jubelirer (9)--offers the clearest evidence to date that the Supreme Court has reached an intellectual dead end in election law. There, the Court voted five to four to reject the Democrats' claim that Pennsylvania's congressional districting matt--the product of a deliberate effort by the Republican-dominated state legislature to increase the number of seats the GOP held in Congress--was an illegal partisan gerrymander. (10)

      What is most interesting about Vieth is not what has been reported in the newspapers: stories about a deeply divided Court and a messy set of opinions that leave the door open, but only a crack, for future partisan gerrymander claims. (11) Vieth's real significance lies elsewhere. It contains the Court's most public acknowledgment to date of the problems it routinely encounters in adjudicating election law claims. (12)

      In Vieth, the Democratic Party alleged that the Republican-controlled state legislature had violated the Equal Protection Clause by drawing federal congressional districts so as to ensure that Republicans won a disproportionate share of seats in that closely divided state. (13) The Democrats' claim was straightforward: the Republicans drew bizarrely shaped districts, including one shaped like a dragon, (14) to win two-thirds of the state's nineteen congressional seats even though Republicans make up about half o Pennsylvania s voters. (15)

      In ruling on the Pennsylvania map, the Justices found themselves all over the intellectual map. As a result, the Court split dramatically in adjudicating the Democrats' claim. In an opinion written by Justice Scalia, four Justices pointed to the absence of manageable standards for resolving partisan gerrymander claims and argued that the Court should get out of the business of adjudicating such claims altogether. (16) Four dissenters thought the Court should intervene but could not agree upon how to do so. (17) And Justice Kennedy, in a remarkably forthright concurrence, admitted that he had no idea how to adjudicate a partisan gerrymander claim but was unwilling to give up on the enterprise entirely. (18)

      We should not be surprised that Vieth caused the Justices so many headaches. Partisan gerrymander claims do not fit into a traditional individual-fights framework. An individual-rights framework is suitable for addressing a concrete and personal harm, like the disenfranchisement of a voter blocked from the polls by an illegal tax or literacy test. In a partisan gerrymander case, however, no individual has been denied the right to vote; the claim is about who wins, not who votes. Nor could one imagine an individual "right" to vote for a winner. In our system every district contains winners and losers; some Democrats live in predominantly Republican districts, and vice versa.

      The essence of a partisan gerrymander claim is not that one's preferred candidate lost. Rather, it is that candidates from the other party were, on average, more likely to succeed than those from one's own. To resolve that claim, one has to make a judgment about what constitutes a "fair" electoral scheme, i.e., how legislative power ought to be divided among -voters. Should the group that won fifty-one percent of the vote wield all of the legislature's power and thus govern without impediment? Should minorities get some share of the legislative seats and, if so, how large a share? A proportional number? Enough seats to influence legislative outcomes? And which types of minorities ought to count for these purposes? Should we worry only about the electoral fate of discrete and insular minorities, like African Americans? Or should the court be equally solicitous of the fate of the major political parties? In short, to resolve a partisan gerrymander case, one must decide how to structure the election process--how to "regulate the institutional arrangements within which politics is conducted." (19) Talk of individual fights does not fully capture what is at stake in these cases.

      While Justice Kennedy's opinion acknowledging the difficulty of adjudicating a partisan gerrymander claim (20) evoked howls of protest from Justice Scalia, (21) it ought to generate some sympathy for his dilemma. It is hard to figure out what is "fair" or "equal" in districting without speaking in structural terms. Any such conclusion would require a theory of representation, an idea about how a healthy democracy is supposed to function. (22)

      Consider just one example: the division among the dissenting Justices as to whether an illegal partisan gerrymander could be established by reference to a single district. Justice Stevens, for example, argued that the strongest claim presented in the case was that of an individual voter in a district drawn for partisan purposes. In Stevens's view, "the grotesque configuration of that district itself imposes a special harm on the members of the political minority residing [there]"--a "representational harm" akin to that recognized in Shaw v. Remo. (23) Justice Souter similarly sought to "concentrate[] as much as possible on suspect characteristics of individual districts instead of state-wide patterns." (24) Justice Breyer, in contrast, proposed a standard that hinged upon statewide election results: whether the party that garnered a majority of the votes could win a majority of seats. (25)

      Lurking beneath the surface of this disagreement is a debate about the nature of the harm. Justices Stevens and Souter were pushing for an individualist conception of the harm: the inadequate representation suffered by a voter in a single district (26) or evidence that individual voters were intentionally moved in and out of districts because of their political affiliation. (27) It is not surprising, then, that Justice Stevens invoked the invidious intent strand of the Shaw cases, (28) and Justice Souter looked to the McDonnell Douglas burden-shifting framework, which is designed to smoke out discriminatory intent in employment discrimination cases. (29) Conceptualizing the harm as one involving intent--treating an individual differently because of her group membership--is consistent with an individualist understanding of the harm, the type of personal injury courts routinely adjudicate. (30) On such a view, we do not need to have a theory of how we ought to distribute political power among groups; we simply need to know that the state has injured a single individual based on an improper motive. (31)

      Justice Breyer, in contrast, conceived the harm as one involving vote dilution--a numeric majority unable to wield majority power--and thus properly sought a statewide measure. (32) After all, dilution cannot be established by reference to a single district. (33) As noted above, the mere presence of a voter in a district where she cannot elect a candidate of choice is not sufficient to establish unfairness of any sort. To determine whether the voter has been treated "unfairly," we need to know whether other members of her group have been systematically treated unfairly--something that requires a statewide (or at least region-wide) perspective of the sort Breyer endorses. (34) And any such assessment of "fairness" requires a yardstick of some sort--a theory of how much...