Rights, Structures, and Our Undemocratic Constitution

Guest Blogger

This post was prepared for a roundtable on Voting Rights, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Pamela S. Karlan[1] 

On the eve of the Supreme Court’s hearing Davis v. Bandemer, 478 U.S. 109 (1986), the case where the Court launched its now-abandoned effort to articulate judicially enforceable limits on political gerrymandering, Sandy Levinson published Gerrymandering and the Brooding Omnipresence of Proportional Representation: Why Won’t It Go Away?, 33 U.C.L.A. L. Rev. 257 (1985). There, in characteristically clear language, Sandy explained that “the only thing clear about constitutional meaning in regard to representation is that it is unclear.” This disarray, Sandy suggested, “depend[ed] on whether one gives priority in one’s political theory to rights or structures.” If one were to focus solely on rights—such as the right to cast a ballot and, in the words of the Voting Rights Act “hav[e] such ballot counted properly and included in the appropriate totals of votes cast”—Sandy explained that constitutional values of “fair and effective representation” (the phrase from Reynolds v. Sims, 377 U.S. 533 (1964)) might “require[e] something radically different from the present system.” Single-member geographically based districts, with their winner-take-all character inevitably waste large numbers of votes (all the votes cast for losing candidates) and fail to effectively represent groups that are geographically diffuse. At-large elections are even worse along this dimension. Moreover, a rights-based theory focused on electoral inputs ignores the central fact that voting is a means to an end and that end is decisionmaking within representative bodies. Sandy emphasized that although Reynolds had used soaring individualist rhetoric, it had also rested on the idea of democratic majoritarianism. Thus, Sandy explained, a pure rights-based theory might require some method of proportional representation for electing candidates. 

But, Sandy continued, rights are not everything. Structure matters as well. We might decide to reject proportional election systems because those systems could “create a political structure that would make the maintenance of other central constitutional values more difficult.” They might produce political instability, or deny voters the ability to elect the candidates they prefer. More profoundly, because “electoral systems inevitably help to shape the character of the purported individuals who constitute the polity,” the single- and narrow-issue political parties that a proportional system might produce could cause citizens to think in a more partial and single-issue way across their interactions with one another. 

At the end of the piece, Sandy seemed to adopt the position that the judiciary was not “the best body to cure the discomfort, especially if one doubts that it can be removed with only narrow surgery.” But his “skepticism about the propriety of courts getting involved in assessing the substantive fairness of gerrymanders” hardly left him satisfied with “the way we have chosen to structure our political institutions.” To the contrary. Scholars, citizens, and legislatures might have a duty to seek “significant structural reform” to the electoral process. Much of Sandy’s work over the past two generations has taken up that duty. Works like Our Undemocratic Constitution have powerfully shaped how we think about the profound flaws in our current constitutional structure.

The outlines of those later arguments are already visible in Brooding Omnipresence: Having explained why and how rights and structure are in dialog with one another in the realm of political fairness, Sandy then attached an appendix to the piece in which he discussed “the chief example in our polity of a multi-member, winner-take-all election”—clearly the most flawed method of election if one cares about fair and effective representation. That example was, and is, the Electoral College. In the nearly forty years since Sandy wrote Brooding Omnipresence, the flaws with that institution have only become more evident. Indeed, the Electoral College, along with equal state suffrage in the Senate, are perhaps the two prongs of what Sandy was later to call the Constitution of Settlement that have most inflected how the Constitution of Conversation has addressed voting rights over the last generation.

In two of the six most recent presidential elections—in 2000 and 2016—a candidate who lost the national popular vote won the presidency. And recent work by a trio of University of Texas economists has suggested that these electoral inversions are quite likely to occur given the current geographic distribution of the electorate. They’re far more likely to affect Democratic candidates than Republican ones. In 2016, Hillary Clinton got close to three million more votes than Donald Trump. In the ten most populous states, she received 36,440,207 votes and he received 31,295,308. But because of how their supporters were geographically distributed, Clinton garnered 98 electoral votes, while Trump garnered 138. In 2020, Joe Biden received 7,059,547 more votes nationwide than Donald Trump. But had fewer than one percent of the voters in Arizona, Georgia, and Wisconsin changed their ballots, Trump would have carried those states, the electoral vote would have been tied 269-269, the choice for president would have been thrown into the House of Representatives, and Donald Trump would have been reelected because the Twelfth Amendment gives each state, large or small, the same vote in selecting the president.

Even worse, given our long history of racial exclusion, consider how the Electoral College can minimize Black political power. In the original Constitution, enslaved people were infamously counted as three-fifths of a person for purpose of allocating seats in Congress. While we tend to focus today on the way that that clause reflects the devaluation of their personhood, the original effect of the clause of the allocation of political power was doubly perverse. People who were slaves counted not at all in elections for those seats (or for a state’s electors) given that they were not permitted to vote. Their presence in the apportionment base served only to reinforce slaveholders’ political power in both Congress and the presidency.

What about today? Well, nearly half the nation’s Black population lives in the eleven states of the former confederacy. Black voters in the South overwhelmingly support Democratic presidential candidates. But in this century, of all those states, only Georgia, North Carolina, and Virginia, have ever cast their electoral votes for a Democrat. By contrast, consider Sandy’s adopted home state of Texas. The state has 38 electoral votes and a population that is 40 percent Black or Hispanic. But the last time any of the state’s electoral votes went for a Democrat was in 1976.

The impact of these structural provisions on voting rights is quite direct. In the last ten presidential elections, Democratic candidates have been elected five times and Republican candidates have been elected five times—twice, though, while receiving fewer popular votes than their Democratic rival. But Republican presidents have been able to successfully nominate ten Justices to the Court (six of whom are currently sitting), while Democratic presidents have successfully nominated only five. And this produced the Court that decided Shelby County v. Holder, 570 U.S. 529 (2013), and Brnovich v. Democratic National Committee, 141 S. Ct. 2321 (2021), each of which dramatically undermined the Voting Rights Act and that seems poised, in Merrill v. Milligan to inflict yet another blow. Our Constitution may be undemocratic in the many ways Sandy has explained, but we now have a Court that seems downright antidemocratic when it comes to protections of voting and fair and effective representation. 

Pamela S. Karlan is the Kenneth and Harle Montgomery Professor of Public Interest Law and Co-Director of the Supreme Court Litigation Clinic at Stanford Law School. You can reach her by e-mail at pkarlan@stanford.edu.

[1] Some material in this post is drawn from Pamela S. Karlan, The New Countermajoritarian Difficulty, 109 Cal. L. Rev. 2323 (2021).