Madison's Music (8 page)

Justice Brennan's equality-based law of democracy has turned out to be a tolerably effective way to deal with blatantly intentional efforts to prevent otherwise eligible people from voting but an inadequate means of dealing with anything else.

Actually, it isn't Justice Brennan's fault. In 1976, the Supreme Court ruled, over Brennan's dissent, that while the Fourteenth Amendment's Equal Protection Clause bars intentional racial discrimination, it has little or nothing to say about laws that disproportionately harm minorities, as long as the racially discriminatory effect is not intentional.
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Brennan argued unsuccessfully that statutes carelessly imposing disproportionate burdens on vulnerable groups should be treated no differently than intentional acts of discrimination. He lost, and equality-based protection of democracy
lost with him. After 1976, in order to win an equality-based constitutional challenge to a law that impedes voting, it became necessary to prove that the law was motivated by an impermissible legislative purpose. Proving disproportionate racial, gender, political, or economic impact isn't enough. Given how adept politicians are in coming up with neutral-sounding smoke screens—such as avoiding nonexistent voter fraud—far too many cynical exercises in voter suppression fly under the equality-based judicial radar.

Two vignettes demonstrate the real-world limits of equality-based protection of democracy. In my younger days, one of my more pleasant duties was to participate in the Appellate Judges' Seminar held at NYU Law School each summer for newly minted appeals court judges. One particularly enjoyable summer, I was delighted to see considerably more African American judges than usual in attendance. The judges cheerfully explained to me that they were the first black appellate judges elected in Louisiana since Reconstruction ended in 1877. When I asked how this could be so, they told me the story of the seven-member Supreme Court of Louisiana. Five Louisiana Supreme Court justices were (and still are) elected from fixed judicial districts throughout the state, white voters comfortably outnumbering blacks in each district. Two justices were—and are—elected from the City of New Orleans. If the single-member judicial system used elsewhere in the state had been applied in New Orleans, one of the districts would have been black-controlled and almost certainly would have elected Louisiana's first black supreme court justice. Instead, beginning in 1921, Louisiana has elected two supreme court justices at large from a multimember district covering the entire city, so that the city's white majority would control the election of both justices.

How, you are probably asking, could anyone get away with such blatant electoral racism? The answer lies in the insistence by the Supreme Court that black voters challenging the scheme were required to prove that the legislature's decision to use a multimember judicial district in New Orleans was motivated by an intentional desire to limit the power of black voters.
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So, savvy Louisiana
lawmakers told themselves—and everyone else—that the reason for the New Orleans multimember judicial district was to establish a unified urban judicial constituency. And they got away with it for decades, because it was impossible to disprove the legislators' bedtime story.
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Years later, I got my own taste of equality-based protection in action. The presidential election of 2000 turned on the disenfranchisement of almost a quarter of Florida's otherwise eligible black male voting population because of past criminal history. In an effort to slam the barn door after the election, or at least repair the door for future elections, I joined a team of Brennan Center lawyers in challenging the constitutionality of Florida's felon disenfranchisement laws. Florida's original felon disenfranchisement provisions were a product of its 1868 constitution. Like Alabama's of 1900, the 1868 Florida felon disenfranchisement provisions had clearly been enacted to undercut the Fourteenth Amendment's guaranty of equal treatment by indirectly suppressing the black vote.
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Faced in 1868 with an ultimatum—ratify the Fourteenth Amendment or don't rejoin the Union—Florida came up with the ingeniously evil device of ratifying the Equal Protection Clause and then eroding its effect on voting by enacting broad felon disenfranchisement rules that would disproportionately affect black citizens. While some poor whites were disenfranchised, the defined crimes (for instance, not paying debts), coupled with racially discriminatory prosecution patterns, were tailored to ensnare a hugely disproportionate number of blacks. That's just what happened.

In 1974, Florida adopted a new state constitution that, without public debate or discussion, simply reenacted the 1868 felon disenfranchisement provisions almost word-for-word, continuing the disenfranchisement of about 25 percent of Florida's black males. Suing on behalf of several disenfranchised black voters, the Brennan Center argued that reenacting a state constitutional provision that had initially been adopted in order to suppress the black vote and that would continue to disenfranchise a quarter of the state's black male voters could not launder the law's original
unconstitutional taint. At a minimum, we argued that Florida had the burden of demonstrating that it had reenacted the originally racist provisions for a legitimate purpose having nothing to do with disenfranchising its black male population. We got nowhere. The Miami federal judge insisted that his hands were tied by the Supreme Court's ruling that a disenfranchised voter must prove discriminatory purpose before invoking the Fourteenth Amendment. It was, he ruled, the job of the black challengers, not the State of Florida, to demonstrate the true motive for the 1868 felon disenfranchisement provision's literal reenactment in 1974. Since the long-dead white politicians who did the deed had been much too shrewd to say anything about why they were reenacting a provision that wiped out a quarter of the state's black male vote, the black voters lost in Miami, just as they had lost in New Orleans.
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Despite a heroic effort by Judge Rosemary Barkett to shift the burden of proof on racial motive to Florida where it belonged,
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the full circuit court affirmed the Miami judge, and the Supreme Court didn't even deem the case worthy of review.
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Contrast that approach with the Supreme Court's treatment of cases where the white majority actually tries to help minority voters. For most of New York City's history, political power was exercised by shifting coalitions of white voters, with blacks and Hispanics all but left out of the power equation. In 1960, for example, despite a massive black population, Brooklyn had almost no black representation in Congress. In the 1960s and '70s, the electoral map of Brooklyn was repeatedly tweaked in an effort to increase black representation. Wearing my ACLU hat, I helped defend Brooklyn's benign racial reapportionment against a challenge by Orthodox Jews who claimed that their local voting power had been sacrificed to aid blacks. I hated the idea of pitting two politically weak minorities against each other in a scramble for scraps from the majority's table, but I couldn't think of an alternative way to provide blacks in Brooklyn with fair representation in Congress. The tweaked Brooklyn electoral lines barely scraped by with a fragmented 5–4 Supreme Court victory,
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but the handwriting was on the wall. A
few years later, when the white-controlled North Carolina legislature sought to redraw congressional district lines to maximize the likelihood that more blacks would be elected to Congress after a century of racial exclusion, five members of the Supreme Court ruled that such an intentionally benign use of race was unconstitutional racism.
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The North Carolina decision may well be doctrinally defensible as a matter of equal-protection jurisprudence. It unleashes withering judicial scrutiny on a purposeful use of race by the government. Even on a purely doctrinal level, though, I believe that the Court erred in refusing to recognize the good faith effort by the white majority to enhance black congressional representation as a justifiable use of racial criteria to correct for past injustices. Whatever its merits as a pure equality case, though, viewed from the perspective of democracy the decision is indefensible. As a matter of democracy, why shouldn't the white political majority be permitted to help marginalized black voters (who had been the target of exclusionary practices for more than a century after emancipation) obtain fair democratic representation as quickly as possible?

So under current equality-based rules protecting democracy, cynical motives often triumph because they can't be proved, while benign motives are penalized. Under Madison's democracy-friendly First Amendment, the outcomes would be reversed. Laws making voting more difficult would be invalidated under a First Amendment that is concerned with the
effect
of a challenged law on voting, not merely its
purpose
, while a law enacted by a white majority making it easier for historically marginalized groups to obtain fair representation would be welcomed as an effort to enhance democratic fairness.

PARTISAN GERRYMANDERING

Once the electorate has been formally defined and the scope of the political majority's power to suppress turnout has been established, the quality of any democracy is dependent on its mechanics.
Unfortunately, as Justice Harlan warned, a formal equality test fails to provide adequate constitutional underpinning for the mechanics of democracy. It turns out that everything can be equally awful.

Under the Supreme Court's formal equality test, the “one person, one vote” rule is vulnerable to the massive partisan and incumbent gerrymandering that has distorted fair representation, rendered votes substantively unequal, and turned far too many American legislative elections into meaningless charades. The problem begins and ends with Justice Brennan's strategic decision to use the Fourteenth Amendment, not the First, as the vehicle to police fair democratic representation. Under pressure from Justice Frankfurter, who insisted that unelected judges lack the capacity to develop a constitutionally enforceable right of fair democratic representation, Justice Brennan fell back on formal mathematical equality. He asked us to imagine two legislative districts—District A with 10 voters and District B with 100 voters, each electing one representative to a legislative body. In such a radically malapportioned world,
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each voter in District A has a tenth of a say in who wins, while the District B voters have only a hundredth of a say. After doing the math, Brennan triumphantly announced that malapportioned election districts inevitably result in votes of unequal mathematical value. It was as though voters in the sparsely populated rural district had ten votes each, while those in the densely populated urban district each had only one vote.

The math was fine and the outcome welcome, but the Court's failure to recognize a First Amendment principle of fair representation severely weakened the ability of the Constitution to protect the democratic process. The real problem in most malapportionment cases isn't highly attenuated mathematical voting differentials in different districts. Is there any real-world difference between a congressional vote that counts 1/675,000 and one that counts 1/665,000? The real-world problem is that less than 50 percent of the population can wind up controlling much more than 50 percent of the votes in the legislature. That's not merely unequal, it's undemocratic. But without a theory of what it means to have fair
representation in a democracy, judges can't confront the problem directly. The fate of the “one person, one vote” test demonstrates the point.

An unintended effect of the “one person, one vote” cases was to require, beginning in 1962, a full-scale redrawing of all legislative lines every ten years to keep pace with population changes reflected in the constitutionally required decennial census. Politicians lost no time in exploiting such a recurring opportunity for self-protection and partisan advantage. Before you could say “one person, one vote,” equally populated election districts were being redrawn everywhere with the lines carefully jiggered to make sure that incumbents always won and to maximize the partisan advantage of the political party in power. Democrats gerrymandered California, Texas, and New Jersey. Republicans made a mockery of fair representation in Pennsylvania, taking a swing state with a roughly fifty-fifty party affiliation and delivering more than two thirds of the state's congressional seats to the Republican Party. When Republicans got control of Texas, they did to the Democrats what the Democrats had done to them, resulting in the spectacle of Democratic legislators unsuccessfully trying to hide out in Oklahoma in the hope of preventing a legislative quorum in Texas. In Colorado and Texas, the pols couldn't wait for the ten-year reapportionment bonanza. They decided to rejigger the lines every five years. In recent years, Republicans made a mockery of fair representation in North Carolina and Ohio, packing huge numbers of black Democratic voters into a few landslide districts, enabling white Republicans to win safely, if more narrowly, elsewhere. Democrats hit back in Maryland and Illinois. The best guess is that about half of the Republicans' current thirty-four-seat majority in the House of Representatives is attributable to carefully gerrymandered districts. The partisan gerrymandering toll in state and local legislative elections is far higher. In New York State, for example, the major parties cut a sweetheart deal just after World War II. Election districts in the lower house (the state assembly) were rigged to ensure control by Democrats, while the district lines in the State Senate races were
drawn to ensure control by Republicans. Since New York politicians worship at the Church of Our Lady of Perpetual Reapportionment, the New York lines were constantly redrawn over the years so that in a state that swung periodically from Democratic to Republican control and back, Democrats controlled the Assembly and Republicans controlled the Senate for more than a half century. New York's political establishment reached its epiphany when the incumbent legislative reelection rate in the state approached 100 percent.