Democracy and Law


Elections, Political Parties, and Multiracial, Multiethnic Democracy: How the United States Gets It Wrong

Lee Drutman

How can self-governance work in a diverse society? Is it possible to have a successful multiracial, multiethnic democracy in which all groups are represented fairly? What kinds of electoral and governing institutions work best in a pluralistic society? In the United States today, these are not just theoretical concerns but fundamental inquiries at the core of an urgent question with an uncertain answer: How does American democracy survive?

This Article looks for an answer by placing the United States in a broader context of multiracial, multiethnic democracies around the world. The basic argument is straightforward: The majoritarian politics of single-winner electoral districts and the two-party system it produces is bad for both minority representation and, by extension, for democracy itself. A more inclusive and stable democracy requires a proportional system of voting and more than two parties. This Article thus proceeds in three parts. Part I takes a broader look at the theory of multiracial, multiethnic democracy, with a particular focus on the role of parties and elections in sustaining or undermining multiracial, multiethnic democracy. Part II looks more closely at minority representation in the United States through the lens of the American party and electoral system and its deep inadequacies in supporting multiracial, multiethnic democracy. Part III argues that proportional representation is the logical solution for the United States if it wants to have a chance at being a stable multiracial, multiethnic democracy.

The Penalty Clause and the Fourteenth Amendment’s Consistency on Universal Representation

Ethan Herenstein, Yurij Rudensky

Many judges and scholars have read Section 2 of the Fourteenth Amendment as evidence of the Constitution’s commitment to universal representation—the idea that representation should be afforded to everyone in the political community regardless of whether they happen to be eligible to vote. Typically, this analysis starts and stops with Section 2’s first clause, the Apportionment Clause, which provides that congressional seats are to be apportioned among the states on the basis of “the whole number of persons in each State.” Partly for this reason, the Supreme Court’s lead opinion in Evenwel v. Abbott rejected the argument that “One Person, One Vote” requires states to equalize the number of adult citizens when drawing legislative districts, affirming that states can draw districts with equal numbers of persons.

But skeptics of the universal representation theory of the Fourteenth Amendment, most notably Justice Alito, have complained that this analysis is flawed because it ignores Section 2’s less-known and never-enforced second clause: the Penalty Clause. Under the Penalty Clause, states that deny or abridge otherwise qualified citizens’ right to vote are penalized with a reduction of their congressional representation. Any theory of representation drawn from the Fourteenth Amendment, the skeptics argue, must grapple with all of Section 2.

This Article takes up that call and explains how the Penalty Clause is not only consistent with but also reinforces the Fourteenth Amendment’s broader commitment to universal representation. Contrary to common misconceptions about the Penalty Clause, the Clause is structured so that the state as a whole loses representation in Congress, but no individual within the state is denied representation. In other words, the Penalty Clause does not operate by subtracting those wrongfully disenfranchised from a state’s total population prior to congressional apportionment. Rather, it imposes a proportional reduction derived from the percent of the vote-eligible population denied the vote that is scaled to an offending state’s total population. The Penalty Clause thus does nothing to upend Section 2’s advancement of universal representation. If anything, the Penalty Clause actually reinforces Section 2’s commitment to that idea. By reducing a state’s representation proportionally, it contemplates the representational interests of nonvoters, a key feature of the universal representation theory.

Failed Elections and the Legislative Selection of Presidential Electors

Justin Levitt

Questions about the state legislative role in determining the identity of presidential electors and electoral slates, and the permissible extent of a departure from regular legislative order, have recently reached peak prominence. Much of the controversy, including several cases to reach the Supreme Court, has concerned the constitutional delegation of power over pre-election rules. But a substantial amount of attention has also focused on the ability of state legislatures to appoint electors in the period between Election Day and the electors’ vote.

An asserted legislative role in the post-election period has two ostensible sources: one constitutional and one statutory. The constitutional provision—the portion of Article II allowing states to appoint electors in the manner the legislature directs— has received substantial scholarly and judicial attention. In contrast, there has been no prominent exploration of the federal statute, 3 U.S.C. § 2, despite text similar to the constitutional provision. This piece is the first to explore that federal statute as an ostensible basis for a legislature’s appointment of electors beyond the normal legislative process, in the aftermath of an election that has “failed to make a choice.” After reviewing the constitutional controversy, the Essay canvasses the history of the statute and its context. And it discovers a previously unreported historical anomaly, which might well affect construction not only of the statutory text, but also the constitutional predicate, in the event of a disputed presidential election.

Parsing Partisanship and Punishment: An Approach to Partisan Gerrymandering and Race

Janai Nelson

The threat of extreme and punishing partisan gerrymandering has increased exponentially since 2019 when the Supreme Court held partisan gerrymandering claims nonjusticiable. Although the Court was unanimous in recognizing that partisan gerrymandering can undermine the fair functioning of the electoral process, neither Rucho’s majority nor its dissent acknowledged the unique harm partisan gerrymandering visits upon the operation of our multiracial, multiethnic democracy when coupled with the upsurge of conjoined racial and partisan polarization. The Court’s failure to establish a limiting principle for the degree to which partisanship can usurp the redistricting process means that there is no federal guidance to cabin partisan gerrymandering and no measure to take account of the race-driven effect of the group lockout that partisan gerrymandering often produces. Absent this critical instruction from the Supreme Court, lower courts, civil rights advocates, and affected voters must turn to racial gerrymandering jurisprudence to discern first principles to guide a judicial response to partisan gerrymandering’s particular relation to and compounded effect on account of race. Fortunately, there is a through line from Rucho to the Court’s racial gerrymandering jurisprudence that plausibly permits federal courts to address hybrid racial and partisan gerrymandering claims and parse pure partisanship from punishment—if they are willing.

Constructing the Right to Vote

Joshua S. Sellers, Justin Weinstein-Tull

The right to vote is foundational to our democracy, but it lacks a strong foundation. Voting rights litigants are constantly on their heels, forever responding to state-imposed impediments. In this regard, the right to vote is decidedly reactive: directed and defined by those seeking to limit the right, rather than by those who advocate for it. As a consequence, the right to vote is both deeply fragile and largely impersonal. It is fragile because voters must reckon with flimsy electoral bureaucracies that are susceptible to meltdown from both intentional efforts to limit the franchise and systemic strain. The right to vote is impersonal because, with few exceptions, it is shaped through litigation, rather than comprehensive consideration of voters’ circumstances and needs.

To address these weaknesses, this Article champions the idea that a robust right to vote must be constructed. Unlike most other rights, the right to vote relies on governments to build, fund, and administer elections systems. This obligation is not ancillary to the right to vote; it is foundational to it. Drawing from state constitutional law, electoral management theory, federalism scholarship, and rarely examined consent decrees, we argue that a constructed right to vote incorporates three essential features: electoral adequacy (including the right to adequate funding of elections, the right to competent management, and the right to democratic structures), voting rights legislation tailored to individuals’ experiences, and voting rights doctrines that require states to build their elections systems in rights-promoting ways.

Ostracism and Democracy

Alex Zhang

The 2020 Presidential Election featured an unprecedented attempt to undermine our democratic institutions: allegations of voter fraud and litigation about mail-in ballots culminated in a mob storming of the Capitol as Congress certified President Biden’s victory. Former President Trump now faces social-media bans and potential disqualification from future federal office, but his allies have criticized those efforts as the witch-hunt of a cancel culture that is symptomatic of the unique ills of contemporary liberal politics.

This Article defends recent efforts to remove Trump from the public eye, with reference to an ancient Greek electoral mechanism: ostracism. In the world’s first democracy, Athenians assembled once a year to write down on pottery shards, ostraka, names of prominent figures they wished to exile from their political community. I argue that this desire to banish powerful figures from political participation is, in fact, sign of a well-functioning, legitimate democracy. In particular, ostracism emerges as an effective procedure during an erosion of the perceived legitimacy of one’s political adversaries, and it is grounded in a hope to restore a once-shared commitment to the foundational norms of democratic contest.

The Continued Relevance of the Equal Access Theory of Apportionment

J. Colin Bradley

The one person one vote doctrine contains a core ambiguity: Do states need to equalize the voting strength of voters in each district? Or do they need to equalize the total number of people in each district? This difference matters when demographic trends lead to large numbers of noncitizens living in some districts but not others. When that happens, equalizing the total population across districts leads to large differences in the number of voters in each district and differences in the voting power of voters across districts. In 1990 the Ninth Circuit held in Garza v. County of Los Angeles that the First and Fourteenth Amendments together require states to equalize the total population across districts, no matter the distribution of noncitizens and other ineligible voters. But that approach has not caught on, and recently the Supreme Court signaled that it thinks the Garza approach is inconsistent with the leading Supreme Court precedent of Burns v. Richardson, which allowed Hawaii to equalize the number of registered voters rather than the total population across districts. This Essay provides a reading of Burns according to which it holds that the goal of apportionment is to fairly distribute representatives across the to-be-represented population—the group of more or less permanent residents who belong to the political community—and that sometimes the total population reported in the Federal Census is an inaccurate measure of this. Thus, Burns should not stand as an obstacle to a modern acceptance of the Garza approach if the Court is forced to revisit these issues after the 2021 redistricting of state legislatures.

Battle Lines/Ballot Lines: Democracy Stabilization and Election Administration

Joseph Krakoff

The prelude of the 2020 election is marred by dark projections of large-scale violence that could disrupt voting or a prolonged count of mail-in ballots requested due to the COVID-19 pandemic. Academics agree that this situation is unlikely to be an isolated occurrence. Rather, extreme polarization risks making violent elections a new norm in American life. Even if violence fails to materialize in November 2020, it is still worthwhile to engage in legal scenario planning to ask the question: What if? This Essay sketches a preliminary, incomplete answer to that question from the perspective of courts.

Taking as an example a complaint seeking to enjoin the Trump campaign from inciting violence, this Essay begins from the assumption that existing Fourteenth Amendment doctrine, forged in the era of 1960s desegregation, lacks a register to fully conceptualize the novel assaults on American democratic institutions today. Specifically, courts tend to employ a strict individual rights focus, which lacks the ability to conceptualize assaults on democracy that do not intentionally target any particular voter and, uncomfortably, asks courts to step into an ex ante regulatory role more familiar for a federal agency than the judicial branch. To fill that gap, courts could learn from international democratic backsliding. Specifically, the concept of a “strategy of tension” lends analytical rigor to scenarios in which regimes actively seek to foment civil unrest, cracking down on opponents and encouraging extrajudicial violence. This framework allows one to recognize such harms as injuries to democracy itself that endanger the supreme democratic principle of the state’s monopoly on the legitimate use of violence, a foundational principle of liberal governance. With that conceptualization in hand, this Essay concludes by forwarding a potential role for courts “in the breach” as exercising emergency powers to stabilize democracy under extreme stress.

Congress’s Article III Power and the Process of Constitutional Change

Christopher Jon Sprigman

Text in Article III of the U.S. Constitution appears to give to Congress authority to make incursions into judicial supremacy, by restricting (or, less neutrally, “stripping”) the jurisdiction of federal courts. Article III gives Congress authority to make “exceptions” to the Supreme Court’s appellate jurisdiction. Article III also gives Congress discretion whether to “ordain and establish” lower federal courts. Congress’s power to create or abolish these courts would seem to include the power to create them but to limit their jurisdiction, and that is how the power has historically been understood.

Is Congress’s power to remove the jurisdiction of federal courts in effect a legislative power to choose the occasions on which federal courts may, and may not, have the final word on the meaning of the Constitution? That is a question on which the Supreme Court has never spoken definitively.

In this Article I argue that Congress, working through the ordinary legislative process, may remove the jurisdiction of federal and even state courts to hear cases involving particular questions of federal law, including cases that raise questions under the Federal Constitution. Understood this way, the implications of Congress’s Article III power are profound. Congress may prescribe, by ordinary legislation, constitutional rules in areas where the meaning of the Constitution is unsettled. Or it may displace otherwise settled constitutional rules by ordinary legislation.

To be clear, Article III does not permit Congress to escape accountability. Rather, Article III gives to Congress the power to choose whether it must answer, in a particular instance, to judges or to voters. Compared with judicial review, the political constraint is, of course, less formal and predictable. But that does not mean that the political constraint is weak. A successful exercise of its Article III power will require a majority in Congress, and, in most instances, a President, who agree both on the substantive policy at issue and on the political viability of overriding the public expectation that Congress should face a judicial check. In such instances, we should welcome the exercise of Congress’s Article III power. In the push-and-pull between judicially-enforced constitutional rules and the desires of current democratic majorities, the potential for Congress’s exercise of its Article III power helps legitimate both constitutionalism and judicial review.

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