Man Without Qualities

Wednesday, April 03, 2002

Down the Rabbit Hole with the Supreme Court II

As noted in the immediately prior post, the Supreme Court’s “one-person-one vote” line of cases insists that total population – not the population of qualified or actual voters – be used exclusively in the creation and definition of voting districts at most levels (other than Federal Senators), an insistence which the Court justifies as needed to preserve the equal voting weight of each qualified voter. But the Court’s rule does no such thing. In fact, the “one-person-one vote” rule actually requires that disproportionate weight be given to voters in districts in which high concentrations of the disenfranchised happen to reside. Nor is the Court’s rule even easy to reconcile with districts with known disparities in voter turn out. If the need to protect the “equal weight” of different votes is paramount (as the Court says it is), then the Court’s rule should seek to maximize the chance that equal numbers of voters in fact vote in the election of their district’s representative. Because the “one-person-one vote” rule does not seek to ensure equal weight be given to each vote, the rule is at odds with its putative justification.

Or, rather, the rule is at odds with its putative justification unless all non-voters are deemed to “vote” notwithstanding their voluntary or involuntary failure to participate in the election. Otherwise, the “one-person-one vote” rule simply does not result in equal weight being given to each “vote.” The “deemed votes” are just necessary accounting entries needed to balance the Court’s rhetorical books.

As discussed in a prior post, “virtual representation” doctrines purport to explain why a set of non-voters (for example, children) should be considered as "represented" in elections by a set of voters. For example, parents and other adults might be deemed to represent sufficiently the interests of the district’s children. Because the Court insists that the “one-person-one vote” rule protects the equal weight of “votes,” the rule embodies an odd and concealed concept of “virtual representation.” It may therefore seem curious that the Court’s “one-person-one vote” decisions do not address the history or applicability of “virtual representation” doctrines in this area. But in another sense that omission is not really surprising at all, since it would have been embarrassing for the Court to explicitly acknowledge its reliance on “virtual representation.” A major cause of the American Revolution was the colonies' refusal to agree that they were “virtually represented” in the British Parliament unless they actually elected members to the House of Commons. “Virtual representation” theories were also used to justify the post-Revolutionary exclusion from the franchise of non-property owners and women. And then there was the unique species of “virtual representation” that informed the so-called “Three-Fifths Compromise.” Since the whole purpose of “virtual representation” doctrines must be to justify partial or total disenfranchisement, the Court cannot easily cite such doctrines as support for its “one-person-one vote” rule, which is purportedly focused on the protection of franchise rights. But while a satisfactory explanation might not be easy or even possible, intellectual honesty requires such an explanation, simply because the “one-person-one vote” rule does in fact partially disenfranchise the voters of districts with low concentrations of non-voters in comparison with districts with high concentrations of non-voters. Why is that allowed?

The intellectual incoherence that suffuses the Court’s Constitutional voting rights cases is not just a curiosity – a fitting metaphor might be that of a land mine. The Court’s entry on Constitutional grounds into this area all but guarantees that it will be obliged to arbitrate election disputes with the highest stakes, with Bush v Gore, whose majority opinion purported to rely on the incoherent "equal protection" precedent discussed above, likely only an early example. That case was by no means as bad or as politically incendiary as a high profile disputed election could be. But, as one commentator put it:

“[L]etters and articles have voiced with varying degrees of indignation a common theme that the legitimacy of the Court has been effectively called into question by its political coup d’état. The Court’s decision in Bush v Gore has been regarded in many quarters as a travesty of constitutional law incapable of rational defense. Recently, for example, 280 law professors have signed a public letter attacking a conservative and mean-spirited Court for its devious and hypocritical judicial activism.”

The Court’s only defenses to such charges of political opportunism are candor, intellectual honesty and coherence. This is especially true in the area of voting rights, but it is in precisely this area where candor, intellectual honesty and coherence are laughably but sadly lacking. The confused opinion which the Bush v. Gore majority based on “equal protection” precedent is to some extent redeemed by likely correct arguments based on other provisions of the Constitution that deal specifically with the election of the President. But such alternative arguments will not always be available – especially in the case of State and Congressional elections. The wake of Bush v. Gore itself has already raised concern about State laws disenfranchising felons – since these laws clearly disenfranchise many black men. The Court should candidly explore whether the equal protection rights of black men disenfranchised by such laws are adequately served by the Court’s odd and concealed “virtual representation” doctrine implicit in the “one person-one vote” rule. That may be painful for the Court, but it should be done. Nor is it wise to ignore the fact that in some parts of the country some districts have increasing populations of non-citizens that are creating substantial distortions in voting rights. It is likely that the Court should abandon the “one person-one vote” rule in favor of a rule that is not internally inconsistent, does not depend so heavily on “virtual representation,” and is expressly directed at protecting the equal weight of votes.

Many commentators have opined that the politics of Congressional and State legislature control have been getting nastier and more polarized in recent years. It is hard to imagine a less desirable, or more potentially explosive, point for the Court to face up to its past incoherence than in a case that delivers control of Congress (or control of the legislature of an inflamed State) to one party or the other. If that happens, the Bush v. Gore ruckus may seem like small beer indeed.

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