The Supreme Court and Election Law: Judging Equality from Bakker v. Carr to Bush v. Gore.

• Author: Charles, Guy-Uriel E.
• Position: Book Review - Brief Review

THE SUPREME COURT AND ELECTION LAW: JUDGING EQUALITY FROM BAKKER V. CARR TO BUSH V. GORE. By Richard H. Hasen. New York: New York University Press. 2003. Pp. xii, 226. $45.

Election law scholars are currently engaged in a vigorous debate regarding the wisdom of judicial supervision of democratic politics. Ever since the Court's 1962 decision in Baker v. Carr, (1) the Court has increasingly supervised a dizzying array of election-related matters. These include the regulation of political parties, (2) access to electoral ballots, (3) partisanship in electoral institutions, (4) the role of race in the design of electoral structures, (5) campaign financing, (6) and the justifications for limiting the franchise. (7) In particular, and as a consequence of the Court's involvement in the 2000 presidential elections in Bush v. Gore, (8) a central task of election law has been to ascertain the proper limits of judicial review of the electoral process. These events have spurred many scholars to argue that the Court should play a reduced role in supervising the democratic process. (9) Other scholars have countered that judicial supervision of democratic politics is justified in order to safeguard democratic principles. (10)

Recently, two important and extremely thoughtful scholars of law and politics have staked opposing positions on this dynamic debate. Professor Richard L. Hasen (11) is one of the most accomplished, respected, and prolific scholars of law and politics. He is also one of the leading advocates of the position that courts should be minimally involved in judging politics. In his new book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore, Professor Hasen offers the first complete account, among contemporary election law scholars, of the purpose and scope of judicial review in democratic politics.

Professor Hasen pursues two central aims in his book. His most critical objective is to provide a framework for understanding the role of the Court vis-a-vis the political process. In particular, he argues that the Court should intervene in politics only in a very limited set of circumstances. He explains that the Court's primary purpose is to protect a narrowly defined group of important core principles of political equality. Outside of that framework, the Court ought to defer to the political and policy judgments of the political branches.

Recognizing that the Court may not be able to resist the urge to enter the political process, Professor Hasen maintains that if the Court must adjudge political equality claims beyond the core equality principles, the Court should promulgate vague pronouncements, or what he terms judicially unmanageable standards. Such pronouncements would not commit the Court to a substantive vision of political equality and would concomitantly permit lower courts to create more-developed standards that could be later adopted by the Supreme Court.

Professor Hasen's second and complimentary aim in The Supreme Court and Election Law is to alter the field's understanding of the purpose of judicial review in the democratic process. A central inquiry in law and politics--indeed one of the organizing themes of the field--concerns the purpose of judicial supervision of the political process. Some scholars, including Professor Hasen, argue that the sole purpose of judicial review is to protect individual rights. (12) I shall refer to these scholars as the individualists. Other scholars who I shall refer to as the structuralists, argue that the purpose of judicial review is to assure that democratic institutions behave in ways that are respectful of democratic principles. (13) Leading structuralists--and the explicit targets of Professor Hasen's criticisms--include some of the founding lights of the field such as Professors Samuel Issacharoff and Richard Pildes. In The Supreme Court and Election Law, Professor Hasen takes on these giants and seeks to reorient the field's telos from what he perceives to be a mistaken and "radical" preoccupation with propagating structuralist-driven theories of judicial review to a more appropriate--again in his view--concern with the vindication of individual rights (p. 139).

On the other side of the debate, one finds Professor Richard H. Pildes. Using the prestigious Foreword to the Harvard Law Review as his platform and in what truly can be described as an academic tour de force, Professor Pildes offers a different and divergent vision of the role of courts in the political process. (14) In sharp contrast to Professor Hasen's approach, Professor Pildes argues that the current problem with judicial review of democratic politics is its failure to come to terms with the underlying values that sustain democratic politics. (15) The purpose of judicial supervision, he contends, is to "address structural problems and enforce structural values concerning the democratic order as a whole." (16) In particular, he maintains that "courts have a distinct calling ... to address the structural problem of self-entrenching laws that govern the political domain." (17)

Whereas Professor Hasen views structural claims as requiring "great intrusion by the judiciary into the political process without sufficient justification" (p. 139), Professor Pildes argues that judicial review is unduly aggressive only when the Court "inappropriately extend[s] rights doctrines into the design of the democratic institutions." (18) This is because the "rights of politics--the right to vote, the right of association, the right of free speech, the right to political equality--are of vast potential sweep, for most features of democratic institutions and elections could, at some level of abstraction, be viewed as implicating one of these rights." (19) Thus, for Professor Pildes, the Court's failure to adjudicate political process claims as structural claims creates "a danger for the practice of democracy." (20)

This Review uses the Supreme Court and Election Law by Professor Hasen juxtaposed against Professor Pildes's recent contribution to explore this rights-structure debate that is dominating the field. (21) One basic point of this Review is that although the debate produces much heat, it does not significantly advance the goal of understanding and evaluating the role of the Court in democratic politics. Additionally, I aim to return election law to a dualistic understanding of the relationship between rights and structure; an understanding that prevailed in the early articulation of structuralism's relevance to judicial review of democratic politics. (22) I shall argue that election law cases cannot be divided into neat categories along the individual rights and structuralism divide. Election law cases raise both issues of individual and structural rights. Therefore, the label attached to election law claims is immaterial. The fundamental questions are what are the values that judicial review ought to vindicate and how best to vindicate those values. These are questions that transcend the rights-structure divide.

Part I of this Review describes Professor Hasen's claims in greater detail. Part II takes on Professor Hasen on his own terms and proposes some modifications to his approach. Part III addresses the rights-structure debate in election law and concludes that not much rides on whether election law claims are styled as sounding in individual rights or as raising structural concerns. Whether styled as individual rights claims or structural claims, courts can, and most likely will and sometimes must, use an individual rights framework to confront the structural pathologies of the electoral process. Part IV examines the costs of the debate to the field.

1. LAW, POLITICS, AND JUDICIAL REVIEW: HASEN'S FRAMEWORK

   1. Core Political Rights

      Professor Hasen's theory of judicial review of democratic politics is driven by three primary and mutually reinforcing values. The first of these, the fundamental idea that drives Professor Hasen's approach to judicial regulation of law and politics, is his departing contention that judicial supervision of the political process is justifiable only to the extent that the Court limits its review to protecting core political-equality rights (p. 7). Core political-equality rights, which he defines in contradistinction to "contested political rights," are the "few basic rights essential to a contemporary democracy" or are political-equality rights that are the product of "social consensus" (p. 81). Thus, an ostensible right becomes a core political right to the extent that it is deemed essential to democratic governance (the essentiality prong) or becomes accepted by a majority of the electorate or political elites (the consensus prong). Both essentiality and consensus are determined by one's subjective observation of what rights are essential or what rights are the products of consensus in contemporary society. Thus, explaining his methodology, Professor Hasen notes that he "derive[s] [his core political-equality] principles from [his] view of the few basic rights essential to a contemporary democracy as well as from [his] observation of social consensus on political equality as a citizen of the United States at the beginning of the twenty-first century" (p. 81).

      From this vantage point, Professor Hasen proposes three principles that he argues are core axioms of political equality: the essential political rights principle (p. 82); the antiplutocracy principle (p. 86); and the collective action principle (p. 88). The essential political rights principle protects the individual from state action that infringes upon her "basic political rights," which includes the right to engage in political speech and the right to organize for political action (p. 82). The essential political rights principle also protects the individual from denial of the right to vote on the basis of literacy, religion, gender, race, sexual orientation, "or on...