The previous Weekly Comment compared two prominent cases decided by the same 5-to-4 majority: Bush v. Gore and the recent gerrymander case, Vieth v. Jubilerer. The Comment gave reasons why the dissent had the better view in both cases. But that is not the point this week. Instead, regardless of who was right or wrong, it is a serious concern that these major election law cases are decided by the narrowest of margins.

To be sure, we have come to expect 5-4 decisions in all kinds of cases: affirmative action, abortion, death penalty, and so on. But election law is different. It sets the ground rules for the resolution of political differences. Therefore, even if the nation is deeply divided on social issues, it needs to be united on the means by which it settles these social disputes.

Not all 5-4 decisions in election law cases are equally troubling. Some involve the Supreme Court’s interpretation of the Voting Rights Act or other statutes enacted by Congress. If Congress does not like the interpretation, it can override the Court with new legislation. Assuming Congress reflects the will of the American people, the new enactment will be a democratic resolution of the dispute.

But matters are more complicated when the Court interprets the Constitution in a 5-4 decision, as occurred in both Bush v. Gore and Vieth. In these cases, Congress cannot override the Court’s decision with a new enactment: it takes a constitutional amendment, which is extraordinarily difficult. Thus, if the Court is to settle disputes concerning the Constitution, we must hope that the Court gets these cases right, because we are likely stuck with its decisions.

There is good reason to rely on the Court in these constitutional cases: much of the Constitution is concerned with the procedures necessary to assure that the laws enacted by Congress are themselves the product of a fair and democratic political process. We cannot trust Congress to be the last word on the fairness of these procedures – not when the self-interest of its incumbent members is so directly at stake. The last two Weekly Comments (see archive) have invoked this point.

But when the Court itself is sharply split on whether the procedures for electing the members of Congress are undemocratic, we begin to lack confidence in the Court’s ability to perform this democracy-protecting function. Perhaps the Court is over-intruding into politics, finding flaws where none exist. Perhaps we would be better off leaving Congress to police the procedures for its own elections, because even distrusting the self-interestedness of incumbents, we sense that it is easier for us – the people – to police Congress than the Court.

Therefore, for the Court to continue successfully in enforcing the essential elements of fair and democratic elections, additional 5-4 splits will not suffice. The Court is going to need to develop a wider consensus on these essential elements. Future Weekly Comments will attempt to explain how this wider consensus might develop.

The recent gerrymander case, Vieth v. Jubilerer, was decided by the same 5-to-4 majority as Bush v. Gore: the conservative coalition of Rehnquist, O’Connor, Scalia, Kennedy, and Thomas prevailing over the liberal bloc of Stevens, Souter, Ginsburg, and Breyer. Both cases involved claims that a state’s election procedures violated the federal Equal Protection Clause. In Bush v. Gore, the Court embraced the Equal Protection claim, shutting down the Florida recount in 2000. In Vieth, however, the Court rejected the Equal Protection claim, even if the gerrymander there intentionally and effectively foreclosed majority rule in Pennsylvania elections. (For more details, see archive.)

What principle explains the majority’s willingness to intervene in Bush v. Gore, but not Vieth? Conversely, what justifies the dissenters in desiring intervention in Vieth, but not Bush v. Gore? Must we assume that only ideology, and not principle, explains all nine votes in these two cases? No, there is a principled basis for explaining why the Court’s intervention was inappropriate in the Florida recount, whereas it was called for in the gerrymander case.

First, and paramount, it was unnecessary for the Court to intervene in the Florida recount, as the federal law had already specified a process whereby Congress ultimately would resolve recount disputes in presidential elections. There was no reason to believe, when the Court short-circuited this process, that Congress would have been unable to perform its assigned function. By contrast, in Vieth, there were no alternative means to rectify the gerrymander that blocked the operation of majority rule. Because the gerrymander determined congressional districting, one could not rely on Congress to undo the undemocratic gerrymander.

Second, Bush v. Gore concerned the outcome of one specific election, with the consequence that judicial intervention inevitably amounted to choosing who won the White House. Vieth, by contrast, required the Court only to declare a systemic rule regarding gerrymanders, a rule which could have been applied prospectively, so that the Court never would be in the position of declaring winners and losers, but only in setting forth the minimum requirements for democracy to function. In other words, in Bush v. Gore, the Court intervened in precisely the circumstance in which intervention was most perilous, whereas in Vieth the Court failed to intervene in the situation where intervention was most warranted.

What is worse, the mistaken intervention in Bush v. Gore may have caused the excessive timidity in Vieth. Justice Kennedy, although hesitant in Bush v. Gore, ultimately decided to stop the recount so that Florida could get the benefit of the “safe harbor” under the federal Electoral College law. Justice Kennedy, also the fence-sitter in Vieth, was troubled by the gerrymander, but backed off from permitting any remedy. Was it an instance of “once burned, twice shy?” The criticism of Bush v. Gore has been ferocious. Justice Kennedy, regrettably, seems to have learned the wrong lesson and made himself unavailable to perform a rescue mission for democracy when it is really needed.

When the case of Vieth v. Jubelirer was pending before the U.S. Supreme Court earlier this year, some observers hoped that it would be an antidote for one of the most debilitating ailments to inflict American politics in recent years: the Hyperactive Gerrymander Syndrome. This malady is marked by two distinguishing features: first, the calculating use of increased computer power to determine exactly what district lines will give one political party the greatest possible electoral advantage over the other; and second, the redrawing of these district lines every year rather than every decade. The consequence of this disease is that American politics have become much more ideologically polarized and polemical than previously, with moderate swing voters unable to control the outcomes in most districts.

By a 5-4 vote, however, the Supreme Court refused to offer a remedy. Essentially, the Court said that it could discern no democratic principle for determining when a gerrymander might be impermissible. The Vieth plaintiffs had proposed a test that would require proof of two facts: first, that the redistricting was motivated primarily by the desire to keep one political party in power even when that party had lost its support from a majority of the voters; and, second, that the redistricting was effective in achieve this purpose, with the consequence that the majority of voters were unable to implement their will through the political process.

One would have thought that the basic democratic principle of majority rule would have been enough to convince the Court to adopt this test. But the Court professed that it knew no way to determine whether the intentional and successful frustration of majority rule had occurred. This professed ignorance is remarkable in light of the many parallels between the proposed test in Vieth and other areas of law. One such parallel was offered by Harvard professor Einer Elhauge, in “a friend of the court” brief, where he observed that this proposed test is the equivalent anti-monopolization rule for the operation of the political process that the Court has long enforced for economic markets through antitrust laws.

Vieth is a far cry from the 1964 decision of Reynolds v. Sims , where the Court articulated the one-person-one-vote principle in the face of naysayers who claimed that the Court had no business interfering with malapportioned legislatures, even when a city of a million citizens would receive the same amount of representation as a rural county of 10,000. The lesson of history is that the Court was right to intervene in Reynolds , reinvigorating political processes that had become incapable of self-correction. Forty years from now, Vieth will be viewed as a painful mistake, where the Court missed an easy opportunity to follow in the footsteps of Reynolds . A political process that has become so stricken by extreme gerrymandering that it is unable to heal itself democratically by the ordinary operation of majority rule requires judicial medicine to remove this cancer from the body politic.

As we approach the nation’s birthday on July 4, we are reminded that the founders were revolutionaries, who declared “[t]hat whenever any form of Government becomes destructive of these ends [i.e, the security of basic human rights], it is the Right of the People to alter or to abolish it.” By saying also that “Governments…deriv[e] their just powers from the consent of the governed,” the Declaration of Independence seems to put the people first, and the law second. The founding idea seems to be, in other words, that the law and its authority follow from democracy, and not the other way around.

Yet the founders knew that, without law, there would be no democracy. At the top of the list of the “long train of abuses” that the Declaration cites against King George, first and foremost is the fact that he suspended the legislative powers of the Colonies, with the consequence that they could not rule themselves democratically. By “taking away our Charters, [thereby] abolishing our most valuable Laws,” King George disabled the Colonies from even organizing themselves in a form that would permit authority to flow peaceably from the people. Without what we today would call the organic or constitutional law that establishes the authority of the Legislature, and determines the procedures by which its members are elected, civil society is subject to the mercies of internal “convulsions,” as the Declaration puts it. Revolution, in the eyes of our law-venerating founders, was but a temporary and extraordinary measure to avoid the lawlessness of arbitrary tyranny and restore the constitutive power of the people to form legislative bodies by means of an organic Charter of Government.

Today, perhaps even more than then, we recognize the necessity of law to specify the procedures that make democracy possible. We have learned that we need the constitutional rule of “one-person-one-vote,” or else our state legislatures fail the first principle of democracy. We know, too, that democracy does not exist if it is a crime to criticize the government and the Constitution contains no freedom of speech to protect against prosecutions for this crime.

The lesson of the 2000 election is that we need more democracy-defining law, not less. The problem that the Supreme Court perceived in Bush v. Gore was that Florida had failed to specify the rules for determining when a “chad” gets counted as a vote. Had Florida adopted a law stipulating that a chad gets as a vote when, but only when, light shines through a puncture in the ballot, there would have been no need for the Court to find a flaw in the recount procedures ordered by the state’s judiciary.

Democracy, alas, is not self-executing. It needs rules to operate. In creating Election Law @ Moritz, we are dedicating ourselves to identifying and explaining the rules that make democracy work and, where necessary, proposing reforms or new measures to make it work better. We hope that, in doing so, we can make some small contribution to the “sacred Honor” of self-rule that our forebears have bequeathed to us.