Elections

Elections The American political system is one of representative democracy. Such a government requires a process, held at more or less regular intervals, through which the populace may choose its representative policymakers. Elections constitute the mechanism by which government is held publicly accountable, thus assuring that the will of the people is carried out. The franchise offers a forum for public participation in political decision‐making, legitimizing the state's authority to make policy and exercise coercive power. Without the right to the franchise, all other rights are illusory, subject only to the whim of those who control governmental power.

The Constitution, by its own terms, mandates popular elections only for members of Congress. Article I, section 2 provides that members of the House of Representatives shall be elected by the people of the respective states. The Seventeenth Amendment, ratified in 1913, provides similarly for the election of senators. Other amendments have expanded the scope of the polity generally. The Fifteenth Amendment prohibits the states from impairing the franchise on the basis of race, color, or previous condition of servitude. The Nineteenth Amendment forbids discrimination in electoral qualification based on sex, and the Twenty‐fourth Amendment prevents the state from imposing “any poll or other tax” as a condition of voting for a federal office (see Poll Taxes). The Twenty‐sixth Amendment effectively grants the right to vote to all eligible citizens at eighteen years of age. As a constitutional matter, the president is not elected popularly but, according to Article II, section 1, by an electoral college made up of state delegations equal in number to the sum of each state's senators and representatives and elected on the basis of state law.21

During the modern era, the issue of reapportionment and the impact of the Fourteenth Amendment have led to the constitutionalization of virtually all elections (see Reapportionment Cases). Until the 1960s, courts were reluctant to interfere in the political task of apportionment. Because the first half of the twentieth century had witnessed great changes in the distribution of the population, epitomized by a migration from rural to urban communities, the judicial finding that apportionment was a nonjusticiable “political question” allowed political intransigence to leave unrectified enormous disparities in the number of voters in different districts. The effect was an extreme dilution of the impact of the franchise in urban communities, significantly the residence of an increasing proportion of the nation's ethnic and racial minorities.

In Baker v. Carr (1962), a case that Chief Justice Earl Warren would later recollect as the most significant decision during his judicial tenure, the Court held justiciable a Fourteenth Amendment attack on legislative malapportionment. Only two years later in Reynolds v. Sims (1964), it declared the right to vote a “fundamental right” under the Fourteenth Amendment and adopted a “one man, one vote” standard for constitutional apportionment (see One Person, One Vote). Many of the critics who had heralded the Court's opinion in Baker blasted the Reynolds decision, which allowed for only majority‐rule elections, as bad political theory. “Madisonian democracy,” unlike majoritarian democracy, they argued, was to be based on interest politics—the complex politics of group bargaining that considered the measure of intensity surrounding an issue, the lobbying ability of various groups, the effect of party loyalties, and the rights of minority groups. Unwilling to enter this political morass, the Court chose instead a simple head‐counting procedure that required little beyond a cold statistical record. Representation was to be closely based upon population unless a legitimate state objective demanded otherwise.

Early reapportionment cases left unclear the types of legislatures covered by the one person, one vote rule, the degree of mathematical equality required among districts, and the types of state policy that could justify deviations from mathematical equality. The Court did make clear that its equal population rule applied to both houses of a bicameral state legislature (Maryland Committee for Fair Representation v. Tawes, 1964) and that the burden of justifying deviations from the equal population standard lay with the state (Lucas v. Forty‐Fourth Colorado General Assembly, 1964). Some were dismayed that the Court would hold unconstitutional the very accommodation of majoritarianism and territoriality enshrined in the Constitution's formulation of Congress. The Reynolds Court, however, rejected the federal legislative analogy, stressing that while the states had once been fully sovereign, subdivisions such as counties and cities had—and were—not.

For some time the relevance of the mathematical equality rule to local governments remained unclear. Finally, in Avery v. Midland County (1968) and, more explicitly, in Hadley v. Junior College District (1970), the Court extended the Reynolds rule to any election—whether federal, state, or local—where the “government decides to select persons by a popular election to perform governmental functions” (p. 56). It further refused to distinguish for purposes of the apportionment rule between elections for “legislative” and those for “administrative” officials. However, Hadley excepted from its holding the election of functionaries “whose duties are … far removed from normal governmental activities and … disproportionately affect different groups” (p. 56). Since Hadley, this exception for specialized local bodies has been applied only twice, both cases involving election of water district members. The Court found the districts' activities “so disproportionately” affected landowners as to release them from the demands of the Reynolds rule. Although this determination may be justified in the first of the two cases, Salyer Land Co. v. Tulare Lake Basin Water Storage District (1973), where the district's primary purpose was to provide for the acquisition, storage, and distribution of water for farming in the surrounding river basin, it is not as clearly appropriate in the second, Ball v. James (1981), in which the water district also generated and supplied electricity for hundreds of thousands of state residents—landowners and nonlandowners alike.

Even where the one person, one vote principle holds, courts must still consider how far an apportionment scheme may deviate from precise mathematical equality before it violates the Constitution. Reynolds emphasized that states were responsible to make an honest and good faith effort to construct districts “as nearly of equal population as is practicable” (p. 577). This strict equality standard has been unwaveringly applied in cases involving state apportionment of congressional districts. In *Kirkpatrick v. Preisler (1969), for example, the Court struck down a districting plan where the discrepancy between the most and the least populous district was under 6 percent. Even such slight deviations were permissible only if they were unavoidable despite good faith efforts to achieve absolute equality.

The Kirkpatrick decision did not clearly distinguish between state legislative and congressional districts. However, beginning with *Mahan v. Howell (1973), the Court has made clear that there is considerably more leeway in apportioning state legislatures. In Brown v. Thomson (1983), for example, population disparities ranging up to 10 percent were deemed de minimis, not requiring state justification. Even disparities of more than 10 percent have been upheld when justified as furthering the goals of compactness, contiguity, and the preservation of political subdivisions. Although county and other political subdivision lines may be considered irrelevant to the determination of congressional districts because persons in Congress are not primarily concerned with legislation that affects specific counties within a state, the same cannot be said of the actions of state legislators. States, therefore, may have greater legitimate reasons for wishing to keep voter groups in county or other political subdivisions when voting for state legislative positions and may also wish to guarantee representation to small counties so as to assure them legislative input on matters effecting them in unique ways.

Legislative districts, although mathematically consistent with Fourteenth Amendment standards, may still be attacked as a violation of equal protection if they appear to obstruct fair representation by diluting the voting strength of an identifiable racial or ethnic minority or, perhaps, a particular political association. Two distinct apportionment practices most often have been questioned. First, apportionment plans sometimes provide that the residents of certain districts are to elect more than one representative. Such multimember or “at large” district plans may comply with the equal population rule, yet still function to exclude or submerge particular minority groups. The “winner‐take‐all” character of most elections creates the possibility that a specific majority will elect all of the representatives from a multimember district, whereas the outvoted minority might have been able to elect some representatives if the district had been broken down into several single‐member districts. The decision to use multimember districts can thus serve to eradicate the political voice of a minority. Second, apportionment plans often rely on gerrymandering—the drawing of district lines so as to delimit the voting power of cognizable groups of voters. A majority might attempt to abridge or dilute the voting power of a minority by grouping minority voters disproportionately in one or a few districts, thus limiting minority impact to specific designated areas.

Despite recognizing the risk these practices pose to voter minorities, the Court in Whitcomb v. Chavis (1971) refused to hold multimember districts per se unconstitutional. Two years later, however, in White v. Regester (1973), the justices upheld a district court decision invalidating two multimember districts. The Court found that the plaintiffs had adequately proven, through an amalgam of historical and contemporary evidence, that African‐ and Mexican‐Americans had been invidiously excluded from effective participation in political life. Left ambiguous was whether a claim of vote dilution could succeed under either the Fourteenth or Fifteenth Amendments without proving discriminatory intent. In 1980, Mobile v. Bolden resolved this ambiguity by requiring specific proof of discriminatory intent for lawsuits brought under section 2 of the Voting Rights Act of 1965.

Quickly, Congress, concerned that Bolden’s evidentiary requirement might seriously retard the Voting Rights Act's effort to prevent racial discrimination in the franchise, amended section 2 to restore a predominantly effects standard. As amended, claimants need prove only that the challenged practice results in a denial of equal opportunity to participate in the political process and to elect candidates of their choice. The Court, interpreting the amended section 2 in Thornburg v. Gingles (1986), set forth a detailed legal standard for adjudicating such claims. Minority voters must demonstrate that the apportionment scheme “operates to minimize or cancel out their ability to elect their preferred candidates” (p. 48). This claim can be proved by showing that a “bloc voting majority [is] usually … able to defeat candidates supported by a politically cohesive, geographically insular minority group” (p. 49). The standard requires a court to find that significant racial bloc voting exists that has led to minorities suffering “substantial difficulty” in electing their preferred representative. Although proof of intent is not required, the evidentiary mandates remain complex. The Supreme Court recently has decided in Chisom v. Roemer (1991) that the Voting Rights Act's provisions encompass state judicial elections.

Much of the judicial involvement in the election process since Baker has been motivated by a felt need to protect minority ethnic and racial groups from legislative discrimination and ensure them a voice and presence in our legislative halls. Given the nation's history, such a concern is justifiable. The Court, however, has not appeared equally willing to confront vote dilution claims brought by members of political or ideological groups. Initially, the Court viewed political gerrymandering as simply politics as usual. Presumably, any legislative majority will choose, among otherwise equally acceptable districting maps, the one that gives the incumbent party the best chance to retain its majority position. Courts, thus, appeared unenthused about entering the thicket of political gerrymandering that might compel judges to determine the “proper balance” between rival political parties in the legislature.

Still, if one dominant political party can draw legislative districts so as to dilute greatly the representation of the minority party, individuals would have their voting power limited because of their political beliefs and associations. Since the legislature cannot grant or withhold other benefits on such a basis without violating both the guarantees of equal protection and freedom of association, so limiting the effective franchise is difficult to defend.

In Davis v. Bandemer (1986), the Court recognized this apparent inconsistency and ruled that claims of political gerrymandering were also justiciable under the Equal Protection Clause. A majority, however, was not able to agree on the appropriate standard for deciding such claims. The most to be gleaned from the fractured Court opinions is that the mere disadvantaging of a political party in one or two elections is likely to be insufficient to constitute a successful constitutional attack.

Bandemer, like Baker, merely opens courts to hear claims of improper gerrymandering. However, behind Baker loomed the one person, one vote rule soon articulated in Reynolds. No comparable simple standard of review in the Bandemer context is readily apparent. Lower courts have been left with little guidance. One thing is clear: courts are likely to become even more deeply entangled in the political process as elections become more fully constitutionalized and thereby nationalized.

See also Fair Representation; Political Parties; Political Process; Vote, Right to.

Bibliography

Walter L. Carpeneti , Legislative Apportionment: Multimember Districts and Fair Representation, University of Pennsylvania Law Review 120 (1972): 666–700.
Armand Derfner , Racial Discrimination and the Right to Vote, Vanderbilt Law Review 26 (1973): 523–584.
Developments in the Law—Elections, note in Harvard Law Review 88 (1975): 1111–1339.
Ward E. Y. Elliott , The Rise of Guardian Democracy: The Supreme Court's Role in Voting Rights Disputes, 1845–1969 (1975).

Stanley Ingber