Debates about voting rights and elections administration are at the top of the political agenda across the United States right now. One of the results of our federalist system, though, is that we’re seeing diametrically opposed movements depending on where we look. Georgia just passed a law including a broad mixture of restrictions on voting, such as limiting ballot drop boxes and requiring an ID for no-excuse absentee voting. Similar efforts are being spearheaded by Republicans across the country. The election scholar Michael McDonald noted a month ago that “[w]e are witnessing the greatest roll back of voting rights in this country since the Jim Crow era,” and the President echoed that assessment recently.
But on the flip side, Democrats in (bare) control of the national government are pushing for election reform to make voting easier. These efforts have mostly concentrated on the sprawling H.R./S. 1 “For The People Act,” where the key question is whether Senate Democrats will get rid of the filibuster in order to push through a party-line vote in favor of reform. But we should also note that there are plenty of state-level efforts to support the franchise, too. Two interesting proposals are the New York and Virginia laws that mimic the mechanisms of the national Voting Rights Act. (At least California, Oregon, and Washington have passed analogous laws, but I’m not aware of other states — and none of their laws, to my understanding, has preclearance provisions like the New York and Virginia proposals do.)
When thinking about these efforts, my mind keeps going back to a question that Justice Alito asked in oral arguments in Brnovich, the Supreme Court’s big Voting Rights Act (VRA) case this term: what are “the usual burdens of voting”? The essence of the argument, advanced by the Republican National Committee’s lawyer, is that laws that impose “usual burdens” on voting, even if they result in discriminatory effects, shouldn’t violate the VRA’s ban on policies that have the effect of denying or abridging the right to vote based on race.
There’s an intuition to that kind of standard. It means the Voting Rights Act wouldn’t bring “usual” election methods into question, thereby exposing thousands of local jurisdictions to legal risk. But the standard is either normatively conservative (the status quo is pretty good, so the only laws the VRA should ban are those that are outliers and thus impose “unusual” burdens) or indeterminate because it embeds within it some standard of “usual” that isn’t merely the status quo.
Justice Kagan (probably one of the top three questioners on the Court) was able to very effectively push the RNC lawyer into admitting the incoherence of the standard. Consider, she asked, election poll hours: If you have good evidence that opening a poll from 9 to 5 has racially discriminatory effects on accessing voting because people of different races have different ability to get to a poll during working hours, is it unlawful? The response: No, because “that would be pretty much the status quo.” Then comes the obvious next questions — how about 9 to 3? 10 to 6? And there just wasn’t a good answer.
Note that there’s a few separate reasons why Kagan’s questions are so successful, in my opinion. With the first question, she suggests that a conservative (in the sense of status quo preservative) interpretation of the VRA defies common sense. The VRA was written to eliminate racial discrimination in voting. It was, and is, a clearly transformative statute. It defies credulity to think LBJ, signing the VRA into law in the shadow of the Bloody Sunday beatings of voting rights activists, was trying to preserve the status quo. Shouldn’t that purpose and context be analytically prior to the goal of protecting elections administrators from legal risk? Moreover, with the second question, Justice Kagan exposes that even with a conservative interpretation, there are line-drawing issues — how far from “9-5,” if 9-5 is the “safe harbor” standard, does the law have to deviate in order to violate the VRA?
More fundamentally, the idea of “usual” burdens on voting reflects how expectations are (to use an oft-mocked phrase) socially constructed. There’s no objective or neutral way to design an electoral system; elections administration is always a mix of contested principles (equal access! democracy! security! freedom! election integrity!) and the hard realities of policy implementation.
Consider a few aspects of elections administration in the United States. As you’ll have noticed from my opening discussion, elections administration is deeply federalized: the original Constitution assigned primary authority for elections administration to states but provided the ability for Congress to “make or alter” the rules that states set. Over time, the Constitution has provided greater guarantees for voting rights (such as in banning race-, sex-, and over-18-age-discrimination in voting eligibility and in outlawing poll taxes), and each time, it has provided Congress power to enforce those guarantees.
That federal structure provides the battleground for partisan conflict. A unique aspect of elections in America is that they are run primarily by elected officials. The result is an obvious fox-guarding-the-henhouse problem: The people who benefit from the system are also the ones who run the system. As a result, you’d expect conflicts of interest. Incumbents will manipulate the rules — whether through gerrymandering, vote denial/expansion, or so on — in order to bolster their position. It’s not clear, though, how you fix this problem. You could try to depoliticize the issue and place elections administration in independent, nonpartisan entities, but that might just disguise the problem. In an era of intense partisanship, can you trust “independent” actors? (For what it’s worth, I think that even if independent actors are not as independent as we’d hope, they’re still better than overtly political actors, who have every reason to behave in self-serving manners.)
Overlaid on top of all of this is the fact that political fights are also contests over legal rights. In the political science and legal literature, we sometimes find a distinction between “negative” rights (freedom “from” something, such as freedom of speech from censorship) and “positive” rights (a right “to do” or “receive” something, such as a right to housing or a livable wage). I think that delineation is treated today mostly as an intellectual punching bag. After all, the delineation is quite difficult to maintain. A “negative” right from takings by the government of your property rests on a “positive” right (i.e., that the government protects private property to begin with). A “negative” right to be free from racial discrimination in voting rests on a “positive” right, namely, the ability to vote. Put more abstractly, protecting “against” intrusion on liberty often depends on providing “for” some framework of legal guarantees within which liberty can be conceived; often, there can be no negative right without a prior positive right.
But the distinction is nevertheless helpful in thinking about how courts interplay with elections administration because it draws our attention to specific facets of voting rights litigation. Because voting is a positive right, courts can’t just say “stop doing that” — they must articulate some notion of what is necessary and not just what must be abstained from. In some cases, that’s really easy. A court can ban an all-white primary, and the remedy is pretty obvious (“the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” in effect). But when thinking about contemporary issues of voting rights, these issues become much more complex. With gerrymandering, for example, contesting the way a district is drawn implies a challenge to the entire map. It’s not enough to outlaw a particular district — you also need to create entirely new districts. You have a judicial order that tells you what not to do — but how do you figure out what to do? Similarly, does outlawing a law that requires polling hours to be limited to 9-3 imply that localities must open polling hours from 9-7? Or is 9-5 good enough? Why? How can you know?
In this way, legal rights create boundaries on political fights. We know political parties are self-interested, and they seek to win through whatever methods available — including manipulating the franchise.* As a result, we should be somewhat skeptical that any burdens on voting are “usual”; it seems much more fair to assume that most burdens on voting are deeply questionable! And courts, compelled by their duties under the Constitution’s rights guarantees, must step in at some point to patrol the political process. But how?
Some would say that they just shouldn’t step in unless there are very clear, administrable standards for regulating elections through law. The oft-cited example here is the “one-person, one-vote” principle — if a state is going to draw districts to choose elected officials they need to be, in election-law speak, equally apportioned. The idea here is that if the Court is going to enter what Justice Frankfurter called the “political thicket,” then it ought to take care to articulate precise legal standards for adjudicating disputes, lest courts begin to look like political actors.** That perspective traces its modern roots to Alexander Bickel’s The Least Dangerous Branch, where Bickel argued that judicial override of legislation is deviant in a democratic system. Because Bickel thought judicial review posed a “counter-majoritarian difficulty,” he thought it needed to be highly limited through strict legal standards along with judicial temperance. The most famous response to Bickel was in John Hart Ely’s Democracy and Distrust, where Ely argued the counter-majoritarian difficulty should not bar judicial intervention when majoritarian politics goes wrong — when incumbents entrench themselves, violating the rights of minorities and making it difficult for them to get voted out.
Note that Ely doesn’t necessarily resist Bickel’s original premise — that judicial review is fundamentally deviant. Some scholars today, including the eminent Pamela Karlan, have argued that Bickel’s premise is actually flipped, because the legislation he was defending is today made by counter-majoritarian forces. A legislature that disenfranchises huge swaths of the population, people like Karlan would say, can hardly be thought of as having “democratic legitimacy.” So the idea that judges should abstain from overruling “majoritarian” institutions is wrong because those “democratically elected” officials don’t have a legitimate stake to majoritarian support.
At a high level, I think Karlan and Ely are right to resist the “counter-majoritarian difficulty” framework at least in the context of election law, where foxes routinely guard the henhouse. It seems like politicians should be less legitimate than judges when deciding on what election rules are “fair” given that the politicians directly benefit from those rules. That conclusion, of course, is not enough. We still need an affirmative understanding of what “electoral fairness” constitutes.
In this context, process is intimately linked to substance. If we think back to Justice Alito’s question about the “usual burdens on voting,” we might say that that’s a substantive standard — something like, if most states do [X], and it’s a well-established practice, then it’s lawful because we regard its limitations on voting as “usual.” But Justice Alito’s question embeds also a procedural standard because it provides a method by which to discern unlawful behavior — in effect, the standard says that a standard is lawful if politicians at the state and federal level come to normalize that practice, and potentially not otherwise.
Ely’s “political process” argument, as one of my professors once explained to me, is limited to when courts should get involved; it doesn’t actually determine how courts should act once they’ve injected themselves into a case. Ely seeks to maintain solely a procedural standard rather than a substantive one. There’s a way to tie his procedural argument to something approaching a substantive standard, though.
The key issue is that even if in the abstract we have intuitions about what’s a “fair” electoral system, it’s very hard to know how those ideals get applied in reality — predicting the effects of electoral reform is a difficult business.*** The problem, in other words, is that we need to create a system that’s “fair,” but we don’t know how to tell if a proposed system is “fair.”
One answer to the dilemma is to say that even if we don’t know how to assess a system on the merits, we can assess a system by the process in which the system came to be proposed. From there, we might be able to compile factors that go into determining whether a process is fair: whether certain interest groups had a role to play, whether the information about the process was transparent, whether there were expert analyses of the effects of an election system and whether any such analyses were published. In other words, we might require inclusive and transparent processes for making electoral changes.
Current federal voting rights laws protect racial and language minorities (the Voting Rights Act), overseas and military citizens (Uniformed and Overseas Citizens Absentee Voting Act), and voters with disabilities (VRA and Voting Accessibility for the Elderly and Handicapped Act). We might say that if an electoral change was conducted in consultation and input with organizations that meaningfully represent such interests, then the process was inclusive. Similarly, if the electoral change was published, subject to open comment, and understandable to the public, then we might say the process was transparent. A law could be written to provide local jurisdictions with “safe harbors” from litigation on the merits of their election changes so long as they meet such procedural requirements. Such a law, which is inspired by proposals laid out in a 2004 essay and a 2009 book by Heather Gerken, would use legal threats to promote more inclusive democracy while also sidestepping the negative/positive rights issue. Rather than having courts decide what is fair as a matter of substance — for example, identifying what constitutes a “usual burden” — they might focus on whether the process for getting to the outcome sufficiently promoted the interests of minorities that Congress has said ought to be protected.
In doing so, courts would take the Elyian role of creating guardrails for a democratic process. But such a perspective on the role of courts wouldn’t assume the Bickelian idea that judicial review is deviant; rather, it begins from the premise that political bargaining is almost certainly going to be unequal and that incumbents will try to protect themselves from minorities and out-groups, such that the backdrop of judicial action to protect the integrity of the political process is ever present. Such a law would understand that the idea of a “fair election system” is always in the eye of the beholder, and so rather than trying to identify what is actually required to create a “fair” election system, it would strive to “stack” the political process in favor of ensuring that different interests get their say in what counts as a “fair” system.
* This “both-sidedness” doesn’t imply moral equivalence: even if both parties are acting in self-interested manners, that doesn’t mean their methods are equally justified. One party, to put it bluntly, believes that it is easier to win if it suppresses racial minorities’ votes; the other party believes it is easier to win if it lowers barriers for racial minorities to vote.
** Note that even one person, one vote raises non-trivial administrative questions. How close do you have to get to equal apportionment? The Court has said that for federal congressional districts, their populations must be “as close to perfect equality as possible,” whereas for state and local districts, the equal population requirement is presumptively met if the maximum population deviation is less than 10%.
*** In fact, I’d believe Harry Enten’s argument that efforts to restrict the vote in Georgia won’t necessarily benefit Republicans. The political science literature is, I think, relatively clear that restrictions on voting often have very small short-term effects (basically, they mobilize opposition, especially if the media covers these efforts intensely), but over time, they can build up and have lasting disproportionate outcomes. Two threads from Brendan Nyhan are, I think, helpful in that they convey a sense of balance, in terms of what the literature shows, and also emphasize the separation between moral/ethical concerns from empirical outcomes. I think he doesn’t note, though, how competitive these elections are, which raises the stakes on reforms that could upset election outcomes even if the net result on votes is quantitatively equivalent to noise.
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Rose: This week was basically my last week of real classes, so now I’m starting to get more time to focus on dissertation work (you might’ve been able to guess that fact given my post this week!), which is exciting. I went down to Borough Market with my LSE friend and we walked around the area. Fun fact: you can get £36/kg asparagus (!!!) at that market. As you might guess, I did not buy anything. But it was fun to look at all the produce. Also, she introduced me to hot cross buns. It turns out these are real delicacies, and not just an elementary-school music-class tune. I can’t say they’re my favorite pastry, but they’re pretty good. Plus, it’s nice to get some sense of British seasonal foods (mulled wine and mince pie at Christmas, hot cross buns at Easter) so that I can feel like I’m fulfilling some aspect of the whole “cultural exchange” part of this scholarship.
One of my flatmates is looking into buying a property in London, and so I went with him to check out a potential place. It’s in East London, right north of the Thames, in Whitechapel.
Whitechapel — and the spot he was looking at — is a liminal space. It’s just a short walk east of the City of London, the financial hub, where skyscrapers, fancy restaurants, and people in suits abound. Whitechapel, and further east, is historically an impoverished and squalid district. You can still see some of that legacy, especially when juxtaposed with the City. But the place also looks fascinating. It’s filled with immigrants, especially Bangladeshi immigrants, and is home to the largest mosque in Britain (the East London Mosque). I got the sense that my flatmate felt that the location was a bit dodgy, so I don’t think he’ll end up buying the property. I thought it was a cool neighborhood, though.
Here are some pictures from the walk back.
Bud: I’m going on an Easter trip to Somerset, in South West England, with some other Marshalls. I’m a bit nervous, but hopefully it’ll be a chance to meet some of the other folks in my cohort and to get a break from sitting around and reading in my flat/walking around central London.
Thorn: I’ve been feeling rather inefficient at getting work done. I can’t tell if it’s a subset of the more general “things always take longer than you expect,” or if I’m actually getting slower at reading and processing information, though. Also, LSE released our exam schedules. The exam period runs from the beginning of May through the middle of June. I have four exams and, alas, three of them are in the first week, and the last is a month later (in June). It’s just a bit of an unfortunate schedule. But it does mean I’ll get finished with exams fairly early, which I think is good.
Gratitude: My other flatmate returned yesterday, so the flat is back to full capacity! I’m hopeful that life will be a bit more lively.
Future topics:
* You will likely get more about voting rights in the near future. There’s a good analogy from competition law and IP law, I think, to voting rights bargaining as I argued would be desirable, so I might lay out that analogy next week.
* The Supreme Court is hearing a case called Cedar Point Nursery v. Hassid, which deals with the Takings Clause of the Fifth Amendment (“nor shall private property be taken for public use, without just compensation”). This case could be hugely important, but the question it raises seems so technical and boring (I’m sure you zoned out a little when I wrote the phrase “Takings Clause”) that I’m not sure the case is getting as much attention as it deserves.