The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v Gore.

Vol. 14 No. 6 (June 2004), pp.481-484

THE SUPREME COURT AND ELECTION LAW: JUDGING EQUALITY FROM BAKER v. CARR TO BUSH v. GORE, by Richard L. Hasen. New York: New York University Press, 2003. 256pp. Cloth $40.00. ISBN 0-8147-3659-9.

Reviewed by Henry Flores, St. Mary’s University School of Law, San Antonio, TX. Email: hflores@stmarytx.edu

This volume is about more substantive questions than are explicitly stated in the title. In addition to being a book about the Supreme Court and election law, this book’s thesis is that the increasing occurrence of the Supreme Court’s intervention in election law is placing the Court in the rather precarious position of playing the role of definer of the American ethos—at least a part of it. This development has the potential to redefine the role of the Court in the American system of government and also to change the role the Court plays in American society.

Richard L. Hasen, who is Professor of Law and William M. Rains Fellow at Loyola Law School in Los Angeles, wrote this concise but substantive volume to assess the history, at least since 1901, of the Supreme Court’s intervention in the political process. Hasen notes at the outset that this is “an initial effort to examine . . . what role the Supreme Court has played and should play in regulating political equality in the United States” (p.ix). Although the author does not specify the relationship between process intervention and the consequences for the substantive orientation of political equality, the two are inextricably intertwined. Fundamentally, Professor Hasen feels that Justice Frankfurter’s dissent in BAKER v. CARR, warning that intervention in the political process could harm the Supreme Court’s reputation was prophetic. Indeed, Professor Hasen feels, as do many others who have written about it, that the Court’s intervention in BUSH v. GORE produced the effect Justice Frankfurter feared. Incidentally, this effect was one of the motivating influences behind Professor Hasen’s penning THE SUPREME COURT AND ELECTION LAW.

Although this represents “an initial effort,” Professor Hasen could and should have taken his analysis at least one step further to consider the twin implications that I mentioned in the opening paragraph of this review. These issues, although not explicitly included in the author’s discussion, are important because, if the Court is increasing its intervention into the political process, it is leaving itself open to the very criticism feared by Justice Frankfurter. Involvement in the political system should be the domain of politicians, not judges who are looked to by society as the chief arbiters of controversies produced by political and legal dysfunction. Concomitantly, by intruding in the political process, particularly to define concepts that are at the heart of the liberal democratic creed, requires the Court to redefine [*482] social relations. The Court then becomes not the arbiter or reviewer of laws and actions but, rather, the determiner of social relations and subsequent structures. I am not sure that this was ever the intent, or foreseen as a future role, by the framers.

My criticism notwithstanding, the author begins this succinct volume presenting data showing the increasing number of election law cases in the 20^th Century decided with written opinion. The data indicate that for the first six decades of the 20^th Century the “Court decided an average of 10.3 election law cases per decade with written opinion” (p.1). Between 1961 and 2000 that average increased dramatically to 60 per decade. As a percentage of all written opinions, election law cases represented just seven tenths of one percent of all cases between 1901 and 1960. Between 1960 and 2000 election law cases accounted for 5.3% of all decisions rendered by the court (pp.1-3).

Professor Hasen’s intent is to assess why the Court has elevated its interventionist tempo, evaluate the traditional legal theories in light of the increased number of election law decisions, and to propose an alternate model for understanding why the Court has decided to enter the political equality debate to such a degree. His view, which he presents in the Introduction, is that the traditional models, market-failure and process theory, simply shed insufficient light on the Court’s enhanced profile in election law controversies.

In the Introduction Hasen addresses the proponents of market-failure theory and their explanations for the Court’s activities in this venue. Put simply, quoting the well known work of Professor Ely, court intervention is intended to unlock “stoppages in the democratic process.” Professor Hasen dismisses the Ely school, suggesting that it has been discredited by most legal scholars. The author does spend more time, however, outlining his concerns regarding process theory.

Professor Hasen indicates that process theory has three fundamental problems: process theory provides no meaningful deterrent to judicial intervention; it is implicitly normative; and, it is “shallow.” The author’s last assessment is based upon the notion that process theory presents no rationale for “how the courts should intervene in the face of political market failure” (pp.4-6). Professor Hasen points out that, in order to identify an appropriate and adequate model to understand judicial intervention, one must be able to look at the substance of the cases in which the Court has intervened. Thus, Chapter One discusses and evaluates the Court’s interpretation of political equality.

In order to understand thoroughly how the Court interprets the concept of political equality, Professor Hasen reviews the major cases the Court has decided in four substantive areas of equality—“formal equality, race, wealth, and political parties” (p.18). By “formal equality” the author means those cases in which the Court focuses on “questions about who gets to vote and the reasons by which jurisdictions aggregate votes” (p.20). After presenting “a sense of the breadth and depth of the court’s political equality decisions from BAKER to BUSH,” Chapter Two delivers an in-depth consideration of the difficulties the Court faces when deciding political equality questions.

The fundamental difficulties presented [*483] by the concept of political equality are that those who appeal to the courts to solve this problem place too much trust in the courts and that the courts must respond too normatively in order to reach an impartial decision. As a result, the courts avoid a substantive legal definition of political equality and, instead, opt for a solution based on manageability. In other words, because a legal petition requires a substantive decision with concrete guidelines to both sides, the Court cannot expend the energy and time to develop a useful definition for a concept as abstract as political equality. The Court, therefore, must fall back on “manageability criteria” in order to present both sides with guidelines that can be applied in the practical world. What this does, however, is to relegate the entire notion of political equality to irrelevancy and the Court appears to all parties as a political player rather than an uninterested arbiter. This was certainly the case in BUSH v. GORE.

If the Justices insist on continuing to intervene in cases focusing on political equality, then Professor Hasen proposes that they distinguish “between core and contested political equality claims to delineate the proper role and respective roles of the Court and legislatures in deciding such questions” (p.75). Throughout Chapter Three the author persuasively shows how the Court can make the distinction that he says will provide a road map to minimize the cost to political equality when they use manageability criteria in determining election law cases. If the Court follows the path laid out by Professor Hasen, then it should be able to reach substantively satisfactory decisions while protecting the “core of political equality.”

Professor Hasen provides additional guidance in Chapter Four, arguing that the Court should “be deferential to (but not a rubber stamp of) the value judgments about the balance between equality and other interests made by legislative bodies,” yet simultaneously being “skeptical about the means” legislatures “purport to enforce the contested political equality right” (p.102). This is a particularly important notion in that it insures that the Court does not run afoul of changing core values in society and allows it to avoid the twin pitfalls of what the author calls “ossification and entrenchment,” or the problem of long-lasting and binding constitutional decrees. In other words, when the Court renders a written opinion, the decision generally remains law for an extended period of time. The author insists that, if the Court regulates the implementation of an enforcement method rather than trying to make a definitive statement concerning political equality, it can bypass this problem.

In Chapter Five the author challenges a “new school of thought” in the political equality debate exemplified by Professor Paula Karlan’s view of “balancing rights and state interests as passé” and her argument that courts should instead focus their attention on the “‘structure and functioning’ of the election process and make appropriate adjustments consistent with defined systemic goals for the political system” (p.139). Professor Hasen feels that, if they follow Professor Karlan’s formula, the courts will become overly intrusive in the political equality debate.

Professor Hasen concludes his work by [*484] championing methods by which the Court can take a “minimalist” approach, essential to maintaining a position above the political fray and thereby heeding Justice Frankfurter’s warning. After all, the author insists, “Supreme Court justices are well-trained in legal analysis, but that does not necessarily qualify them to make such normative judgments or to assess the strength of empirical evidence” (p.165) in the realm of political equality in election law. What the author fails to recognize, however, is that Supreme Court justices may be well-trained in the law but they are still political appointees and human beings, and therefore subject to all the emotional, psychological, and ideological forces that affect one’s judgment of abstract notions like political equality. It is not clear whether Professor Hasen’s recommended approach would control the power of these other forces and prevent their interference in the political equality debate, as clearly happened in BUSH v. GORE.

CASE REFERENCES:

BAKER v. CARR, 369 US 186 (1962).

BUSH v. GORE, 531 US 98 (2000).

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