Democracy and Electoral Processes

Democracy and Electoral Processes

Description

For most of American history, the right to vote was part of a contested terrain over the inclusiveness of American politics. Over time, the franchise expanded to include women and, belatedly black and other minority citizens. Indeed for the 100 years between the ratification of the Fifteenth Amendment and the passage of the 1965 Voting Rights Act, the continued frustration of the franchise to black Americans was the defining issue of voting in America. Remarkably, and imperfectly, the combination of the Voting Rights Act and federal enforcement took most of the elementary issues of a formal right of participation off the historical table. Although disputes remain over the sweeping disenfranchisement of released felons and identification requirements for casting a ballot, these are decidedly secondary and would count at best as marginal burdens on the franchise. So long as the critical legal issues in voting were confined to a first-order claim for equal rights of participation, there was little pressure on legal scholarship to refine a law of the political process independent of the standard constitutional categories of equal protection or due process. Two developments, however, began to push toward the emergence of a distinct body of law, now known as the law of democracy or, more generically, as election law. Both of these developments addressed a concept of ‘vote dilution,’ a difficult category of improper burdening of the franchise even where all individuals are given full capacity to register and vote. Vote dilution necessarily implicates the capacity for a vote to be aggregated effectively with those of like-minded citizens to translate into representation and agreeable legislative policies. Once defined in the aggregate, such voting claims (sometimes referred to as second-generation claims in the minority voting rights literature) quickly transcended the customary individual rights claims that dominate equal protection law. The first challenge to push beyond the simple right of participation came with the Court’s great reapportionment cases, beginning with Baker v Carr. In these cases, the grotesque malapportionment of many of America’s legislative districts gave some votes a numerical weight dozens of times greater than those in districts in the same jurisdiction. Although the Supreme Court disingenuously claimed that the equal voting strength claim could be fitted within ‘familiar’ categories of equal protection, this was not the case. In the malapportioned districts, there need not be any formal prohibition on participation by any individual or group. Nor was there a content-basis to the claimed burden such that persons were disadvantaged because of their party affiliation or their race. Either formal prohibitions or burdening disfavored groups would have implicated constitutional categories that were indeed ‘familiar.’ In Reynolds v Sims, the case that enshrined the one person, one vote doctrine, the Court went further to define the constitutional guarantee as being one of an equally ‘effective’ vote. Since no vote can be effective in the absence of potential inclusion in a winning coalition, Reynolds effectively invited the law of democracy to push beyond the customary rights domain that had been the hallmark of the post-Brown Warren Court. While much of the law of political exclusion in America concerned the ongoing and shameful exclusion of black citizens from the franchise, the post-Voting Rights Act period challenged the simple model of exclusion. Once black voters were for the most part ensured the right of participation, the question became why minority voting rights law was not obsolete. Courts, and subsequently Congress in the 1982 amendment of Section 2 of the Act, came to understand that the aim of minority enfranchisement was not simply the ability to cast a vote as a formal matter, no less than that was sufficient for citizens facing the consequences of serious malapportionment. In the case of black citizens, particularly in the Democratic strongholds of the South, the ability to cast a vote revealed secondary obstacles in the form of at-large elections, staggered terms, single-slate requirements, and other mechanisms that had the effect (and often the purpose) of over-rewarding majority coalitions and frustrating the ability of minority coalitions to secure any representation at all. In jurisdictions marked by both the absence of partisan competition and by high levels of voting along racial lines (‘racial bloc voting’), these structural features of the voting systems resulted in the continued absence of elected black officials, even as the black franchise expanded. As with the post-Baker reapportionment cases, the second generation minority voting cases forced the law to confront a richer set of problems concerning the proper allocation of electoral opportunity. This was an inquiry for which the narrow categories of equal protection or due process would serve only as placeholders for structural debates over the nature of representation and the role of courts. In turn, the apportionment and vote dilution cases led to the development of a new field of constitutional law, one that heavily intersected corresponding developments in political science. This chapter will proceed in three parts. The first gives a brief state of the developments in political science from Kenneth Arrow’s pioneering work to the refinements in public choice theory to the emergence of institutional approaches to politics. This review is not intended to be comprehensive but instead is designed to give the background for the emergence of structural approaches (that is, non-rights derived claims) to legal oversight of the political process. Second, we trace the emergence of a distinct approach in law, one drawing more from Joseph Schumpeter and public choice models of political competition, than from classic constructs of equal protection. Despite the centrality of minority voting rights in the development of this area, these issues are treated more fully elsewhere and so our focus will be on the issues of campaign finance, gerrymandering, and the role of political parties. Finally, we conclude with the emerging areas in this field of law, particularly as concerns the institutional dimensions of the political process.

Source Publication

Research Handbook on Public Choice and Public Law

Source Editors/Authors

Daniel A. Farber, Anne Joseph O'Connell

Publication Date

2010

Democracy and Electoral Processes

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