Madison's Music (7 page)

Justice Brennan disagreed. He insisted that judges can—and should—use the Constitution to reinforce and protect American democracy. Brennan could have confronted Frankfurter directly, challenging his view that the First Amendment had nothing to do with protecting the right to participate in the democratic process. He could have invoked Madison's music to recognize an implied First Amendment right to democratic participation. Or he could have tried to take the clause guarantying a Republican form of government to the states out of judicial mothballs, where it had languished since 1846.
³
Instead, ever the canny strategist, Brennan took the safest way to “the rule of five” in a very closely contested case arguing that the Fourteenth Amendment's Equal Protection Clause
⁴
could act in democracy cases as both a source of judicial power and a textual check on judicial overreaching.

Supported by a comfortable Warren Court majority, Justice Brennan and Justice Thurgood Marshall developed an equality-based constitutional law of democracy. They argued that if one person enjoys the “fundamental right” to vote, everyone else is entitled to an equal right to vote, unless the government demonstrates a very persuasive justification for treating others differently. Brennan and Marshall called their equality-based approach “fundamental rights strict scrutiny.”

Justice Harlan, a principled conservative who had discovered freedom of association in 1958 and would champion freedom of secular conscience in 1970, warned that relying on strict equality as a one-size-fits-all judicial formula for building a constitutional law of democracy risks blinding judges to larger concerns about the proper functioning of democracy as a whole.
⁵
Harlan warned that enforcing a strict rule of equality as the only way to protect democracy could lead to appallingly undemocratic results, such as denying the vote to everyone. Sadly,
Bush v. Gore
, where five justices used an ostensible concern for strict equality to terminate the 2000 presidential election in favor of the Republican candidate, proves Justice Harlan's point that equality and democracy do not always overlap.

Brennan won the argument back in 1962, ushering in our equality-based law of democracy. In its first decade or so—from 1962 to 1972—the equality-based constitutional law of democracy was a huge success. Relying on strict equality, the Supreme Court imposed the “one person, one vote” principle, requiring each election district to have roughly the same number of inhabitants, on the House of Representatives, both houses of a state's legislature, local school boards, county governing bodies, and city councils, sweeping away years of discriminatory underrepresentation of urban constituencies, often with large concentrations of nonwhite voters. With “one person, one vote” in place, the Court then recognized an equality-based right to vote and to run for office that doomed durational residence requirements, poll taxes, property ownership requirements, and virtually every other formal barrier to voting that had plagued American democracy since its founding.

Because fundamental rights strict scrutiny seemed to do the job of protecting democracy so effectively, Brennan made no effort to follow his initial instinct to ground the emerging constitutional law of democracy in Madison's First Amendment or in the long-dormant clause obliging the federal government to guaranty each state “a Republican form of government.”
⁶
That decision marked a fateful strategic blunder tying judicial protection of American democracy not to the coherent poetry of Madison's democracy-friendly First Amendment or even to the idea of what constitutes a “republican form of government,” but to the vagaries of an unstable and intensely controversial Fourteenth Amendment equality jurisprudence.

THE LIMITS OF EQUALITY-BASED PROTECTION OF DEMOCRACY: DEFINING THE FORMAL ELECTORATE

Despite its justly celebrated status as the world's most successful continuous charter of democratic governance, the U.S. Constitution is guilty of an embarrassing lapse: the original 1787 text says almost nothing explicit about the right to vote, run for office, or
enjoy fair political representation. At the time of the founding, only white men with substantial property could vote. While some of the Founders may have believed that the Republican Form of Government Clause would prevent a state from unduly limiting the franchise, or that the adoption of Madison's First Amendment in 1791 had established a right to participate in the national democratic process, the only explicit guidance we get from the 1787 Constitution about the right to vote and run for office is: (1) a promise in Article VI, section 3 that no religious test will ever be imposed on the right to hold office; (2) a recognition in Article I, section 2 that, initially at least, the right to vote in a federal election would parallel the right to vote for the most populous house of the relevant state legislature; (3) a delegation to the states in Article I, section 4 of the power to set the “time, place or manner” for federal voting, subject to congressional override; and (4) the recognition in Article I, section 5 that “each house shall be the judge of the Elections, Returns and Qualifications of its own Members.”

Whatever democratic gaps may have existed in the original 1787 text, the constitutional amendment process has been overwhelmingly preoccupied with building and preserving democracy, most importantly expanding the franchise. Of the seventeen constitutional amendments that have been added since the Bill of Rights, twelve have dealt directly with the functioning of the democratic process. Five amendments—Section 2 of the Fourteenth Amendment and the Fifteenth Amendment, both of which dealt with race; the Nineteenth Amendment, which enfranchised women; the Twenty-Fourth Amendment, which dealt with poverty; and the Twenty-Sixth Amendment, which dealt with age—expanded the franchise to previously disenfranchised groups. Two amendments, the Seventeenth, which established the direct popular election of senators instead of allowing state legislatures to elect them, and the Twenty-Third, which provided residents of the District of Columbia with the right to vote in presidential elections, expanded the scope of electoral participation by already enfranchised voters. Five amendments—the Twelfth, which required separate electoral
votes for president and vice president;
⁷
the Twentieth, limiting lame-duck presidencies and Congresses; the Twenty-Second, which imposed a two-term limit on the president; the Twenty-Fifth, clarifying presidential succession; and the Twenty-Seventh, deferring any congressional pay raise until the next Congress was in session—corrected perceived structural flaws in the original democratic text.

Of the five amendments that have nothing to do with improving the democratic process, three are important—the Eleventh, limiting the power of federal courts over state treasuries; the Thirteenth, ending slavery; and the Sixteenth, authorizing the income tax. The Eighteenth and Twenty-First amendments, imposing and repealing prohibition, just take up space on the page.

Despite (or perhaps because of) the repeated use of the amendment process to protect and expand the franchise, the Supreme Court declined for over 180 years to recognize a federal constitutional right to vote or to run for office.
⁸
While an occasional case invoked the equality norms of the Fourteenth or Fifteenth Amendments in order to invalidate a particularly blatant refusal to permit blacks to vote,
⁹
no effort was made by the Court until the 1960s to develop a generally applicable constitutional right to participate in the democratic process. As we've seen, one of Justice Brennan's great triumphs in the 1960s was to persuade the Warren Court majority to cobble together a de facto constitutional right to vote based on the protection of equality in the Fourteenth Amendment. Brennan reasoned that if the government allowed one person to vote, denying such a “fundamental right” to someone else required an extremely powerful justification. Using Brennan's equality lever, the Supreme Court quickly eliminated almost every formal impediment to voting, running for office, and equal representation that had plagued American democracy since the founding. Soldiers originally from out of state who were stationed in Texas were granted the right to register and vote in Texas elections.
¹⁰
The poll tax was swept away, signaling the end of property qualifications for voting and holding office.
¹¹
Third-party
candidates were granted a constitutional right to appear on the ballot.
¹²
All residents affected by an election were granted an equal right to vote in it.
¹³
Finally, the Court ended the practice of using durational residence requirements to disenfranchise newcomers.
¹⁴

Even under the Warren Court, however, equality-based democracy protection had its limits. In 1959, literacy was viewed unanimously by the Warren Court as a constitutionally legitimate basis on which to decide who could vote and who could not.
¹⁵
The Supreme Court has not found it necessary to revisit the issue because Congress banned literacy tests in the Voting Rights Acts of 1970 and 1975.

Felon disenfranchisement also survived because, in 1974, the newly established Burger Court majority twisted the language of section 2 of the Fourteenth Amendment. All agree that Section 2 of the Fourteenth Amendment was intended to put pressure on Southern states to permit newly freed slaves to vote. In 1868, when the Fourteenth Amendment was adopted, it was politically impossible to rally support for a constitutional amendment guarantying racial minorities the right to vote. That didn't happen until the adoption of the Fifteenth Amendment in 1870. In the meantime, Section 2 provided that “representatives shall be apportioned among the several States” according to “the whole number of persons in each State,” but that apportionment must be reduced for any persons whose right to vote in a federal election was “abridged, except for participation in rebellion, or other crime.” Although civil rights leaders never got a chance to use Section 2 to reduce the number of representatives from Southern states because the Fifteenth Amendment was adopted within two years, in 1974, Chief Justice Rehnquist twisted the words “rebellion or other crime” in Section 2 to grant affirmative power to states to disenfranchise convicted felons, even though the prison population is—and was—disproportionately black and Latino as the result of systemic racial discrimination in the criminal justice process.
¹⁶
So a constitutional amendment designed to help freed slaves has been hijacked as a device to disenfranchise their descendants. Rehnquist ignored the
fact that the phrase “rebellion or other crime” as used in section 2 of the Fourteenth Amendment probably referred to unlawful activities in connection with the recent rebellion. Otherwise the word
rebellion
would have no purpose because rebellion was already a crime. That's how Florida gets the power today to disenfranchise 25 percent of its male black voters. Forty years later, we still have not found an effective way to reenfranchise the more than 4 million Americans who cannot vote because of a past criminal conviction.

Despite the literacy blip and the persistence of felon disenfranchisement, if we focus solely on the formal definition of the franchise, Justice Brennan's equality-based protection of democracy looks pretty good, though.
¹⁷
Unfortunately, that's where the good democracy news stops.

SUPPRESSING TURNOUT

Even if all formal restrictions on voting were removed, the real-world impact of a universal right to vote would depend on how courts respond to electoral regulations that operate to suppress turnout. Regulation of elections can suppress turnout in three ways: (1) intentional efforts to disenfranchise certain kinds of voters; (2) inadequate consideration of regulations that unnecessarily impede voting; and (3) inaccurate assumptions about the need for and consequences of regulations limiting electoral participation.

Equality-based protection of democracy works pretty well in preventing intentional efforts to keep otherwise qualified folks from voting, but it provides almost no protection against unnecessary or poorly thought out rules that impede voting. Worse, equality-based protection of voting rights turns out to be vulnerable to cynical efforts to suppress turnout that are disguised as legitimate efforts to regulate the electoral process. Sometimes, an intentional effort at suppressing turnout is so transparent that it jumps out of the cake, such as drawing a twenty-eight-sided legislative district obviously designed to exclude black voters
¹⁸
or using a phony “grandfather clause” to exempt voters from literacy tests only if their ancestors
were entitled to vote before the Civil War.
¹⁹
Much of the time, though, election regulations that suppress voter turnout are carefully disguised as “neutral” efforts to deal with an allegedly legitimate issue. For example, the creation of a large district where everyone casts multiple votes to elect multiple representatives can be used to submerge a pocket of black voters within a larger white majority and is often successfully defended as a “neutral” effort to enrich political representation. Similarly, onerous voter identification requirements that disproportionately exclude the poor, such as requiring official voter ID cards or proof of citizenship, are successfully defended as antifraud, devices, even when there's no hint of fraud. Felon disenfranchisement statutes that disproportionately exclude black male voters are defended as efforts to define a trustworthy electorate.

Occasionally the negative impact of a government regulation on voter turnout, like scheduling elections on a workday or requiring voter registration in advance of the election, isn't intentional at all but simply reflects a lack of knowledge or concern about the effect of a given electoral regulation on the working poor. Sometimes, as in literacy tests, a limitation on democratic participation is the result of a good faith mistake about need for a given regulation or a wrong guess as to its consequences.