The Supreme Court and Voting Rights: Time To Intervene
5.25.2021
The past half-century has witnessed wide philosophical swings of the Supreme Court as the court’s constituency has changed. Conservatives invoking the doctrine of “originalism” have steadfastly resisted the judicial implication of “penumbral” rights not in their view promulgated expressly in the Constitution. More moderate and liberal justices have embraced a different approach, attempting to identify core principles and extrapolate what the Constitution means in a modern society. The difference mirrors those between literalists and others in biblical exegesis. One area, however, which has largely eluded that philosophical debate is voting rights, as justices conservative and liberal have consistently punted, construing the 10th Amendment’s reservation of residual power to the states to embrace electoral systems and otherwise declaring the topic “political.” The result has been that the states and Congress have been left to sort out myriad voting systems that give rise to debates and inconsistencies over who gets to vote, how voting may take place and how voting districts are constructed.
This article argues that originalism is a reason for the court to enunciate voting rights parameters rather than avoid the topic, that various paths of review and ongoing political dynamics present a realistic opportunity for the court to do so, and that a fair range of reasonable parameters fashioned by the court, even with its current conservative majority, would help to resolve the growing disarray and inconsistency among states that contribute to the undermining of confidence in the democratic process.
The Guarantee Clause
If originalism is the source for constitutional doctrine and interpretation, then all portions of the Constitution should be logically given effect. And one that has particular import for voting rights issues but has been largely ignored is the provision in Article IV, which “guarantees” that all state governments be “republican” in form. No principle was more central to the Constitution than that government be based on popular sovereignty. The entire legitimacy of the political system depends on this popular participation and sanction. Defending the Constitution, Alexander Hamilton observed that a true republican form of government “derives all of its powers directly or indirectly from the great body of the people.” This notion of popular sovereignty is reflected in other provisions of the Constitution, from the identification of the “People” as the ones that “ordain” and “establish” the Constitution to the ones who have their rights “reserved” and “retained” to alter or abolish the Constitution. Although later edited for stylistic reasons, the draft of the Second Amendment initially described the “militia” as “composed of the body of the People.”
As students of history, the country’s founders were mindful that republics had a history of being subverted. Quoting Montesquieu, Madison in the Federalist No. 43 noted that Greek democracy was subverted when the Macedonian King Phillip was rewarded with two seats among the Amphictyons for assisting in the defeat of the Phoenicians, introducing an autocrat into a democratic forum and ultimately resulting in the subordination of the Greeks to the Macedonians following the battle of Chaeronea. Our founders gave us a means to protect ourselves from the erosion of republican government, even if the political process has been corrupted and failed. So important was this provision that neighboring state republics were to aid an individual state in preserving its self-government. In this way, fellow state republics would be protecting themselves and the collective nation, as a form of government that was not republican in form – e.g., a tyranny or oligopoly – would be a threat to its neighbors. Not only does Article IV guarantee each state’s commitment to a republican form of government, but it also provides protection from “Invasion” or “domestic Violence” initiated by a neighboring state. This would suggest that other states have a cognizable interest in fair elections.
Indeed, a non-republican form of government would arguably undermine and subvert the republican character of the federal government. Federal institutions, such as voting for federal seats and functions, rest on state law foundations. Accordingly, if a state government were to engineer voting laws that corrupted the integrity of that state’s elections to the House, Senate or Electoral College, then harm would be inflicted on the citizens of another state whose representatives would not be legislating with democratically elected representatives from the offending state.
Accordingly, the “guarantee” clause represents a constitutional mandate that, while states have reasonable latitude under the 10th Amendment to craft their respective electoral systems, they may not do so in a manner that threatens their “republican” form of government and in turn the federal republican infrastructure. Yet under current judicial rulings, the constitutional “guarantee” provision has as much weight as provisions in the Russian constitution. To the extent the Supreme Court has discussed its scope, the context has been to respect states’ freedom to fashion disparate systems, rather than enunciating fundamental standards and principles for any “republican” form of government.
In the seminal and now quite ancient case addressing the guarantee clause, Luther v. Borden, the Supreme Court simply found that it could not rule on the provision because it presented a “political” question. The Rhode Island state government was controlled by landowners under a charter from the English monarchy. Citizens in the state organized a constitutional convention, and a majority of all registered voters under the charter voted in favor of the new constitution. A new governor, who received a majority of the votes, was elected under this new constitution. At the request of the charter government, the president then threatened the deployment of federal troops and forced out the newly elected government. Subsequently the chartist government was able to have a new constitution approved by less than one-third of the voters and less than half the registered voters. The particular case came to the Supreme Court because Borden had forcibly entered Luther’s house under orders from the chartist government and Luther sued for trespass. So the question turned on whether Borden was acting as a representative of a lawful government. The court declined to determine which of the two regimes was lawful.
The court might have sought to inquire whether the chartist government met some test sufficient to qualify it as “republican” in form. Or the court perhaps could have explored whether the means undertaken by those supporting the new constitution was legally sufficient. The court did neither, however, and the Luther v. Borden decision has since therefore stood for the proposition that the “guarantee” in Article IV is essentially non-justiciable. After the Civil War, the court chose to avoid being drawn into any case challenging a reconstructionist Congress implementing republican governments in the defeated southern states. But the court has, in recent voting cases, signaled that it would not consider the provisions of Article IV and has steered clear of weighing in on individual election results (except in Bush v. Gore, in which the court perhaps without being particularly persuasive was careful to declaim any precedential import).
Giving Meaning to the Guarantee
To the extent the court’s judicial philosophy is to give meaning to the actual constitutional text, it is hard to see how it can choose to simply not adjudicate the very same text. By actually addressing and effectuating the words of Article IV, the court could set the overall constitutional minimum ground rules for voting rights. States would still have latitude under their 10th Amendment reservation of powers to fashion their own systems, but they would at least have notice of the goalposts and limits.
First and foremost, the court could establish parameters for access to voting. In order to have voting be meaningful, people need to have access to the polls. Safe harbors could be established for how to identify and register, how to vote in different media, polling booth concentrations for different population densities and remoteness. Correlatively, an insufficient number of voting stations or hours in a densely populated area or the absence of voting machines on a reservation would arguably violate the basic guarantee of popular sovereignty. These are in some senses logistical issues but ones that keep recurring. Inevitably, it is more likely the dispossessed who need to challenge the status quo, thereby placing a financial burden on those least likely able to bear it. So setting several different modes of accommodating the obligation to satisfy the means of producing a republican government would seem wise. This might not foreclose other means of satisfying the mandates of republican government but might at least narrow areas of contention.
Additionally, the court has been asked to rule on a variety of voting district cases, most recently in Wisconsin, Ohio and Maryland, but as a practical matter has let existing gerrymandering stand. The court and litigants typically approach these cases under 14th Amendment analyses. It would be much simpler and more just to have at it directly. Modern demographic computer analysis has been able to devise voting districts that vastly amplify the voting preferences of citizens of a particular state to such a degree that it distorts the basic preferences of the group in the selection of representatives. As the incumbent political party often sets up the voting districts, it typically does so to amplify its own electoral advantage, which means distorting the vote.
Ranges of “Republican” Form
To be fair, the precise definition of what it means to be a republican form of government probably falls with a range of acceptable answers. We would all agree that the U.S., the U.K., France and Germany are democracies, although the exact form of that democracy varies from place to place. In the same way, there might be any number of ways a state government might qualify as having a republican form of government.
In this light, the court again could enunciate safe harbors for meeting the mandate of Article IV. One way might be for the state to have a non-partisan election commission establish voting districts. Another might be to allow voting districts to be established based on geographic proximity with all voters in all districts not to be further than a prescribed distance from one another subject to the reasonable exigencies of geography. A third might be to allow the legislatures to establish voting districts subject to the constraint that the proportions reflected the allocation of representatives by party affiliation would need to be within a prescribed number of points of the percentages of total voting in the state with the risk that the election would be invalidated if it fell outside those boundaries.
Obviously, the precise safe harbors and parameters may shift with the composition of the court. If the Roberts court mustered a 5-4 majority in Shelby County v. Holder to find the 2006 congressional extension of the Voting Rights Act unconstitutional in the context of the current environment, an even more conservative court – broadly characterized as 6-3 today – would arguably scrutinize any similar congressional limitations on state voting systems. And the current more conservative court may be inclined to accord greater latitude to states to the extent their strictures and qualifications are directly challenged.
But the point is not where the parameters are precisely drawn as the court composition shifts. Rather, what is important is that the court recognize and accept the need for establishing parameters, rather than dodging voting issues as “political” or intermittently weighing in only when state systems are constrained by federal intervention, which merely encourages greater state activism and inconsistency.
Paths to Supreme Court Review
A fair question is when and how the Supreme Court might accept a case or cases to develop the law in the ways suggested and if so, how such cases might be decided. The issues are interrelated.
What seems most clear is that the court has no appetite to get involved in individual election results. The court has studiously steered clear of the morass of litigation spawned by the most recent presidential election.
Nonetheless, growing public debate and frustration arising from voting rights issues will inevitably gain the justices’ attention, as they are not hermetically sealed off from the body politic despite functioning in a unique environment. The current political environment has revealed severe structural strains in the constitutional fabric. While rare, we have had a recent election in which the Electoral College legitimately delivered the presidency to the candidate lacking a majority of the popular votes. This structural feature would seem to require one party to effectively garner between 5 to 7 million more votes than the other party in order to claim the White House. That oddity is not lost on the public. In addition, the Senate now is constructed such that senators representing a minority of the population effectively control at least 50% of the votes. In other times less polarized that might not be problematic, but that is not the case today. Beyond the setting of public policy these arrangements have real-world economic impacts on people in different constituencies. It has been the case for some time – Senator Moynihan used to complain about this issue – that blue states have been transferring funds to red states. Kentucky, for example, reportedly receives some $80 billion more from the federal government than it pays in taxes. Those funds come from places like New York and California. The recent tax law changes that capped state and local tax exemptions largely affected blue states and de facto raised federal taxes on them even further. In our history the refrain “no taxation without representation” has been known to carry some weight. The court’s decisions relating to campaign financing have also had the effect of heightening the impact of large donor funding, further straining the constitutional system by calling into question the integrity of the voting process. Notwithstanding the impact of small donors through the internet, the main funding still comes from large dollar donors. The court may well consider it appropriate to alleviate all these pressures and anomalies on the constitutional system by providing guidance on voting rights issues which is at least in its ambit.
Accepting voting rights cases for review would allow the court’s majority to advance their philosophy of originalism. The court’s more conservative majority can underscore its philosophical view that it is bound by the actual words in the Constitution, as the guarantee is as explicit as one could imagine. Here is their opportunity. That should be sufficient. The more liberal minority also can embrace review as an opportunity to advocate broader voting rights. Either way, review is entirely consistent with, not repugnant to, originalism.
Still, appropriate cases must work their way to the court, even assuming its appetite to get involved. Several paths to review are possible.
As the Shelby case demonstrated, one path for review arises from congressional efforts to limit state freedoms. With growing efforts in many states to impose voting qualifications and strictures, some response from the Democratic Congress is to be expected. Indeed, such efforts may be seen as effectuating the guarantee. Having admonished Congress that any burden on state determinations must be justified by compelling and current needs, an even more conservative court would likely subject new federal restrictive legislation to judicial scrutiny.
Otherwise, the paths to the Supreme Court must emanate from challenges to individual state systems. In that respect, given the latitude of the “guarantee” clause, the particular fact pattern will need to be extreme and elicit broad attention. Examples that the court might consider as being beyond the reasonable latitude to be afforded the states might be the limitation of voting stations in relationship to the populations served or limits in voting times or methods that are unduly constrained or seem to lack a substantial and substantiated state interest. It was reported that on one Native American reservation, no polling booth was available other than by driving hours away, and most residents did not have transportation or the means to do so. In another recent media report, newly enacted voting restrictions would reduce the number of voting boxes from 38 to eight in an urban area. These seem to be beyond that which the state needs to for voting integrity. Although the court has declined to interject itself with respect to gerrymandering if the incumbent party is attaining representation far in excess of its actual voting percentage, this should also be challengeable under the “guarantee” clause as compared to other constitutional provisions. Having cited these more extreme examples it should be clear that challenging voter identification and other ministerial issues absent some demonstration of extraordinary harm would be seen as falling outside of the “guarantee’s” protections. The court is due to rule on certain cases that challenge more ministerial aspects of voting, and it is hard to imagine that the court will be inclined to overturn such state statutes and regulations.
It is also possible that the court could be attracted by a threat to the integrity of federal elections occasioned by extreme variations in state systems. While state systems may vary within the “republican” form of government without offending the overall federal integrity, one can imagine such widespread deviations and disarray that the court feels duty bound to weigh in to restore some sense of confidence and order.
Another way that a case might find itself before the court is if one state sued another over its voting mechanisms. As reflected in the court’s recent dismissal of the case brought by the attorney general of Texas, among others, relating to results in Pennsylvania and other states, the court is not likely to be amenable to such claims. The case might be different had there been any substantive evidence offered of fraud of sufficient order of magnitude and so it remains a possibility albeit a distant one in the future. In addition, a number of the justices have expressed the view that merely because there is a dispute between states the court may not be obligated to accept such a case for disposition. This may be concerning for other reasons but also may limit this pathway to the court.
A final traditional path to court review might come from a federal circuit split. If the Supreme Court will not readily enunciate parameters and safe harbors, perhaps circuit courts will do so, resulting in conflicts inviting Supreme Court review.
Whichever path proves fruitful, the result is not preordained in favor of unfettered state sovereignty even with the current 6-3 conservative composition. While the court is broadly understood to have a conservative majority, there remain different strands of thought even under that banner, and several newer justices who are still solidifying their philosophies. In the recent immigration case of Niz-Chavez v. Garland, those commonly identified as the conservative justices split over the interpretation of the statutory phrase “a notice,” with some holding that meant a single notice and others several notices that had all the relevant information. Those who predicted the unconstitutionality of the Affordable Care Act were gravely disappointed. Indeed, even in striking down the coverage formula of the Voting Rights Act in Shelby, the majority did not foreclose a less burdensome alternative, offering that “Congress may draft another formula based on current conditions.” There is no reason to believe that a compromise consensus would not emerge on such critical issues for the nation’s citizens and future.
Conclusion
Every once in a while, democracy gets stuck with political authorities trapped in a dead end. Our country is wracked now by concerns relating to the validity of voting and reflexive measures to impose qualifications on voter eligibility. The court could and should render a real service in helping alleviate such instability. The Warren court did so for civil rights when needed (or even long after it was needed). It’s not often and the court is well advised to exercise caution before weighing in. Yet we are now at one of those junctures where the court needs to play its critical role.
While from time to time there are surprises in electoral outcomes for select offices (as in the recent close Georgia senatorial races) most states have effectively turned into a one-party state, including by effecting voting rules that serve to perpetuate those in power, thereby throttling competition and innovation. It is possible these parties might voluntarily relinquish power, but history cautions against such hope. As suggested here, it is time for the court to give effect to that explicit constitutional provision to prevent effective disenfranchisement and to promote a more constructive democratic dialogue in a way that is consistent with its efforts to get decision making focused on the political branches of government.
Michael Glanzer is currently a principal at Glanzer and Co., which develops special situation investments in the U.S. and internationally. After practicing transactional law with Davis Polk and Wardwell during the 1980s, he spent the next several decades serving in senior roles at various institutional private equity and financial advisory firms. He has also been an adjunct professor at NYU School of Law, lectured at various other law schools and universities and published articles on a range of public policy issues, including privatizations, restructurings and corporate affairs.
