Madison's Music (9 page)

As the orgy of gerrymandering unfolded, voters implored the Supreme Court to do something about the virtual elimination of contested legislative elections from American democratic life. From a democracy-centered perspective, the Court's response has been appalling. Initially, six justices voted to condemn excessive political gerrymandering as unconstitutional but required a voter seeking judicial help to show that the gerrymander was so extreme she had been effectively excluded from voting.
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The politicians loved that test because political gerrymandering is never so extreme that it makes it impossible to vote; it just makes it almost impossible for one side to win. After twelve years of futility in the lower courts, during which only one political gerrymander flunked the Court's impossibly strict test, the Court finally withdrew the test, only to substitute something worse.
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Four Republican justices now argue that courts are wholly incapable of providing equality-based relief against political gerrymanders because it is impossible for judges to set an objective baseline from which to measure deviations from politically fair representation. Four Democratic justices advance three different theories arguing that excessive partisan gerrymandering violates the Equal Protection Clause because it unfairly enhances the voting power of the political majority. Justice Kennedy plays the tease, holding out the theoretical possibility of doing something someday about gerrymandering, possibly under the First Amendment, but never going all the way. The net result has been judicial paralysis and the virtual disappearance of genuinely contested legislative elections from much of the American landscape.

Can you imagine what Madison would say about a democracy without contested legislative elections? Ironically, Senate elections, once the province of state legislatures, are often the only place where citizens have a real choice about whom to elect—and that's only because the pols haven't figured out yet how to gerrymander state lines.

The Supreme Court's self-imposed paralysis has led to a field day for professional politicians, as technology increasingly allows sophisticated political line drawing that lets party leaders and lobbyists divide the electorate into preordained slices, leaving only a few genuinely contestable elections. In effect, the Supreme Court's refusal to deal with partisan gerrymandering has made our democracy even worse than that of ancient Athens, which often substituted random choice of officials by lot for actual elections. Instead of trusting to luck, we empower political bosses and incumbents to choose our representatives for us. Bring back Athenian democracy!

If an alien dropped down from Mars and was asked how to deal with two sets of players in the democratic process—racial minorities emerging from almost four hundred years of exclusion from political power and incumbents deeply embedded in the power structure—a reasonable Martian might say, “Don't let the law help either. Leave them both alone. Now that you finally have a fairly structured democracy, everything will eventually work out for the best.”

Another reasonable Martian might say, “Let the law help both. We need the stability and expertise provided by experienced elected officials, and fairness calls for trying to reconstruct the level of minority representation that would have existed but for past racism.”

A truly wise Martian would say, “Let powerful incumbents take care of themselves. It's the racial minority that really needs help to balance the books on past exclusion.”

Even a foolish Martian would never say, “Design your democracy to lock the powerful incumbents into office, but don't give any help to the racial minority.”

Want to bet on what the current Supreme Court says?

SMOKE-FILLED ROOMS

As the Supreme Court sentenced contested legislative elections to death by gerrymander, hope for robust democracy in districts with one-party dominance (natural or artificial) shifted to the nominating process. Even if the general election is a formality, a modicum of democracy still might break out in the primary, where the one-party colossus chooses its nominee. The early Supreme Court precedent was promising. In the 1940s and 1950s, the Supreme Court recognized that the major-party nominating processes are so integral to the general election that, for the purposes of constitutional review, they should be treated as a part of the election itself. So despite the fact that the two major parties are private associations, the Supreme Court treated every part of their nomination process as an integral part of the election itself, even pre-primary private polls. That meant it was unconstitutional to exclude blacks from full participation in the major-party nominating process, no matter how “private” the preliminary proceedings were dressed up to appear.
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Years later, in 1986, the Court also ruled that Connecticut could not forbid the state Republican Party from opening its primary to independents.
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From a democracy standpoint, so far, so good.

When the Republican and Democratic political bosses counterattacked, though, the Supreme Court turned Madison's First Amendment
against
democracy. First, the politicians concentrated on neutralizing closed primaries (those open only to party members), arguing that the parties had a First Amendment associational right to protect themselves from “raiding” by hostile outsiders posing as members. Political leaders in New York and Illinois induced the state legislatures they controlled to impose substantial “ideological” waiting periods before a voter was allowed to vote in a closed primary, making it almost impossible for insurgents to recruit new members in order to contest the party bosses' choice of candidate. In 1972, the Supreme Court upheld a New York State law requiring new party members to wait as long as eleven months before they became eligible to vote in a closed Democratic Party primary.
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Because New York City is largely a one-party town, missing the Democratic primary is the equivalent of missing the general election. The Supreme Court majority didn't ask whether the waiting period was good or bad for democracy. The majority justices asked only whether, under an equality-based law of democracy, New York had a plausible justification for treating new party members differently from longtime party members. Five justices answered yes, holding that a professed concern over potential interparty raiding was a legitimate reason for requiring new party members to sign up eleven months in advance of the primary, even when the new voters were registering for the first time. Illinois politicians tried to push the ideological waiting period envelope even further, imposing a twenty-three-month voting delay in Mayor Daley's Chicago. That was too much even for the Supreme Court.
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In other words, durational residence requirements cannot be imposed on voting in a meaningless general election, the outcome of which has often been preordained by gerrymandering, because waiting periods discriminate against newcomers, but a long waiting period
can
be imposed on the right to vote in the primary election that is the only democratic game in town. Party leaders then reinforced their stranglehold on the nominating process by persuading the Supreme Court that “sore loser” laws, preventing the loser in a major party primary from mounting a third-party or independent challenge in the general election, are constitutional.
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Thus in the name of political stability, leaders of the two major parties were granted a constitutional license by armchair political scientists dressed as Supreme Court justices to perpetuate their personal power and their duopoly of the electoral process. Maybe Frankfurter was right, after all.

With closed primaries safely neutralized by long ideological waiting periods and sore-loser laws, party leaders turned to undermining two more adventurous efforts to democratize the major-party nominating process—open primaries, in which all registered voters can vote, and blanket primaries, in which all voters pick the major party candidate they wish to nominate for each office
in a single, unified primary election. Despite the fact that California's adoption of blanket primaries had increased voter turnout by 10 percent and tended to favor moderates of both parties, the Supreme Court ruled that blanket primaries violated the First Amendment because they allowed nonparty members too much power over the selection of a party's nominee.
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The Court pumped a little democratic air back into the nominating process by narrowly upholding Washington State's nonpartisan “top two” primary, in which all candidates for a given office are listed on a single ballot and the top two vote getters advance to the general election.
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The justices warned, though, that evidence of voter confusion over which candidates actually belonged to what party might invalidate the practice.

The Supreme Court's ban on blanket primaries and its equivocal approach to the top-two primary cast doubt on the constitutionality of open primaries, where any voter, regardless of party affiliation, can choose to vote once in one or the other major party's primary. Several lower courts have suggested that open primaries can survive by treating a voter's decision to participate in a party's primary as an “indicia of affiliation,” turning the voter into an instant member of the party. Such formalistic nonsense highlights the absurdity of viewing the two major parties as if they were hermetically sealed private associations when they choose their nominees, especially in areas where securing the nomination is tantamount to election.

The Court's insistence on treating major parties as private associations for the purpose of the nominating process even casts doubt on whether political parties can be forced to nominate through primaries at all, instead of allowing the political bosses to choose the candidate in a “smoke-filled room.” The justices make almost no effort to harmonize recent cases, which treat the major-party nominating process as a purely private exercise, with earlier cases that treated it as an adjunct of the election itself. The two inconsistent lines of precedent simply run side-by-side on parallel tracks. Being on the wrong track can be fatal to reform efforts. For example, New York State purportedly elects its judges. But the reality is that they
are patronage appointments by local Republican and Democratic leaders, ratified by rigged judicial nominating conventions and uncontested general elections where the two major parties often cross-endorse each other's judicial candidates. The lower federal courts put the case on the older track of precedent where the major-party nominating process is viewed as an adjunct of the general election. Both the district court and the Second Circuit had no difficulty recognizing that New York's boss-controlled judicial nominating system denied challengers a fair chance to contest the bosses' choice for the nomination. The Supreme Court simply switched tracks, insisting that the major-party judicial nominating process was a private affair, immune from constitutional review. To add insult to injury, the Court claimed to be protecting the First Amendment associational rights of the very party members who wanted to challenge the nominating process.
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The story of the failed effort to pump democracy into the nominating process closes with Oklahoma's decision to forbid a minor political party from inviting members of the two major parties to vote in its primary. Six justices upheld the ban.
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When the smoke cleared, only independents were able to join with minor-party members in voting in a minor-party primary. Members of the Republican and Democratic parties were imprisoned in their respective ideological spaces. So major parties have a constitutional right to open their primaries to independents and possibly to defecting members of the other major party. But ideological protest parties, seeking to challenge the electoral status quo, can be forbidden from inviting members of the two major parties to vote in their primaries. From a democracy standpoint, it's hard to imagine anything worse.

If political gerrymandering overpowers democracy in the general election and excessive deference to local party bosses erodes democracy at the nominating stage, the only other democratic game in town is competition from third parties. Once again, the early precedents were hopeful. In the nineteenth century, a vibrant third-party political culture posed constant challenges to the major
parties. Abraham Lincoln won a four-party race for president in 1860. In 1968, six justices recognized an equality-based constitutional right to ballot access for third parties.
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Once again, however, equality-based constitutional protection of democracy failed to follow through on its early promise.

Instead of viewing ideologically driven minor parties as dissenting voices with a First Amendment right to participate in the electoral debate, the justices have insisted on treating them as if they were genuine competitors for electoral success. The resulting constitutional doctrine invalidates “unduly burdensome” third-party ballot access regulations but permits rules requiring a showing of significant electoral support before third parties can gain a ballot listing. It forbids participants in a major-party primary from signing a third-party nominating petition. It encourages the major parties (which control the legislatures) to impose the most onerous statutory requirements possible on ballot access for minor-party challengers without triggering the Supreme Court's amorphous constitutional veto.
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The restrictions typically force minor parties to secure a significant number of signatures on nominating petitions during a relatively short period of time long in advance of the election from a shrinking pool of eligible voters who are allowed to sign only one petition but none at all if they voted or intend to vote in a major-party primary.