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Basis, Intent, and the Blood Sport Republic: A Voting Rights Framework for a Constitutional Democracy

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This weekend, William & Mary will host an impressive symposium with the daunting task of “lay[ing] a definitive academic foundation” for redistricting law ahead of the 2020 census. The topic could not be more pressing. The Supreme Court continues to consider Bethune-Hill[1] and McCrory, is holding Covington and Harris[2] in limbo pending those decisions, and will almost assuredly see the historic Whitford case land on its doorstep soon. In a weekend that is sure to reveal a number of disagreements on critical questions, perhaps all attendees can agree on one thing: “The most charitable thing to say about the current state of . . . gerrymandering law is that it is a big mess.”

Yet, in the background of almost every major debate lingers a conceptual distinction that could help strike consensus across a range of issues: the distinction between “intent” and “basis.” Intent asks: “Why this district?” Basis asks: “Why this person?”

The concepts intersect on the margins, but each plays a unique and distinct role in the “dilution v. sorting” question, the “race v. party” question, and the balance of powers question, among others. Moreover, the importance of this distinction goes beyond redistricting law—it could play a key role in forming a more coherent, simple, and rigorous voting rights framework at a time when it could not be more critical.

In the field of redistricting law, this distinction makes it possible to reduce a complex body of law into a relatively simple table (assuming the Court is willing to adopt both a political dilution claim and a political sorting claim, as I have advocated and as would address the concerns of the Whitford dissent).[3]  [UPDATE: Aspects of this table have been eclipsed by more recent developments in the law.]

Redistricting
  Racial Dilution (Statutory) Racial Dilution Political Dilution Racial Sorting Political Sorting
Authority[4] VRA & 15th 14th 1st and/or 14th (Whitford) 14th 1st and/or 14th
Intent

(“Why this district?”)

 No showing required

Device may violate VRA despite having political purpose

 Device enacted or maintained “to minimize or cancel out the voting potential of racial or ethnic minorities” (Bolden) Device enacted or maintained to “to minimize or eliminate the political strength of any group or party” (Gaffney; Bandemer (citing Bolden)), or

“to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation” (Whitford)

 No showing required, but relevant evidence to predominance/basis and state showing of tailored justification

Political objective does not change racial basis of sort. (Bethune)

 No showing required, but relevant evidence to predominance/basis and state showing of tailored justification
Basis[5]

(“Why this person?”)

 Evidence of racial basis may favor causation finding, if legally necessary[6] No showing required; but relevant to proving intent No showing required, but relevant to proving intent “State has [predominantly] used race as a basis for separating voters into districts.” Miller

(i.e., racial basis subordinates in fact (Bethune))

Burden shifts on showing of predominant basis (Miller, Bethune)

 State has predominantly used political data as a basis for separating voters into districts (i.e., political basis subordinates in fact (Bethune))

Burden shifts on showing of predominant basis (Bethune)
Effect (Preconditions) Gingles Test (threshold showing that device can impair equal ability to elect)

No strict threshold for finding legally significant polarization (Gingles)

 Gingles Test

See Martinez, 234 F. Supp. 2d 1275 (applying Gingles)

No strict threshold for finding legally significant polarization (Gingles)

 “Modified Gingles” Test (threshold showing could be Whitford efficiency gap, Sam Wang’s approach, Bernie Grofman’s factors, etc.)

No strict threshold is necessary

 N/A N/A
Effect (Liability) Totality of Circumstances Totality of Circumstances

Burden shifts if plaintiff makes prima facie case (Arlington Heights)

 Totality of Circumstances

Efficiency gap is weighty evidence, but not dispositive (Whitford)

Burden shifts if plaintiff makes prima facie case (Whitford)[7]

 No showing required

(Expressive and representational harms implied when predominant basis is race)

 No showing required

(Expressive and representational harms implied when predominant basis is politics)
State Justifications (Permissible)[8]

See generally, Parsons.

 Protect Minority Ability to Elect; Prevent Dilution (City of Rome) Protect Minority Ability to Elect; Prevent Dilution (City of Rome) Competitiveness, Proportionality, Incumbency Pairing Prevention, etc. (Gaffney, Cromartie, Karcher, Bush, LULAC) Protect Minority Ability to Elect; Prevent Dilution (City of Rome) Competitiveness, Proportionality, Incumbency Pairing Prevention, etc. (Gaffney, Cromartie, Karcher, Bush, LULAC)
State Justifications (Impermissible)[9]

See generally, Parsons.

 Racial, Partisan, or Incumbency Advantage (Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune) Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

 Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

 Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

 Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

Below, I explain the basis/intent distinction further, how it resolves a number of redistricting law issues, and how it plays a critical role in preserving foundational principles of constitutional law in our democracy.

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2017 Score: Swamp 1, Drain 0

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On the eve of the 115th Congress, House Republicans have voted to gut the Office of Congressional Ethics – an independent ethics watchdog created in the wake of the Jack Abramoff scandal.  The proposal creates, instead, a new “Office of Congressional Complaint Review” within the House Ethics Committee, giving lawmakers themselves more control over internal ethics inquiries.  Early reports suggest the new office won’t be able to release information to the public, have a communications spokesperson, consider anonymous tips against lawmakers, or even communicate with law enforcement unless the House Ethics Committee approves.

The proposed change will be included in a package of new House Rules governing the incoming Congress, which is scheduled for a vote by the full House tomorrow afternoon.

UPDATE: After a swift and overwhelming blowback from the public, the plan was scuttled.  Issue One’s press release provides the reformers’ mantra for all of the challenges on the horizon: Victory, then Vigilance.

On “Hamilton Electors” and the Lessig/Hasen Debate

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Professors Lawrence Lessig and Rick Hasen–two titans of the political law world–recently got into a public debate over the legitimacy of presidential electors voting in a way different from how their votes were pledged.  Despite my decidedly non-titan status, this is a blog about government structure and process, so I suppose it’s worth weighing in: both seem wrong in my view.

The debate opened with Lessig writing this article in the Washington Post.  In it, Lessig first notes the historical role and purpose of the electors: to act with independence and exercise judgment in determining who should become president.  The electoral college is, in Lessig’s words, a “safety valve” or “circuit breaker” to ensure that the judgment of the people is “reasonable.”  But then Lessig goes one step further.  He claims that, based on the “fundamental principle of one person, one vote,” the electors should “respect the equal vote by the people” and “ratif[y]” the result of the popular vote outcome on Dec. 19 by voting for Clinton.

In a post on his Election Law Blog, Hasen pushed back on both points.  “First, the electors in the electoral college are not chosen to exercise judgment but to translate the will of the people in each state. If we had a system where we expected them to exercise independent judgment we would spend time vetting them.  Instead, they are generally loyal party members.  Second, relying on the national popular vote to overturn the results of the electoral college seems unfair even if, like me, you believe the electoral college is unfair. The election was run under the electoral college system. Would Clinton have won if both sides were going to run up the popular vote? Perhaps, but it is not a given. This seems to go against rule of law ideas that we all abide by the rules for an election set in advance. Turning the electors into mighty platonic guardians doesn’t seem to be the right way to go.”

The truth, in my view, is somewhere in between: the electors retain a critical function and have a duty to exercise independent and considered judgment, but this does not mean automatically choosing the national-popular-vote winner based on the principle of “one-person, one-vote.”

Professor Lessig gets the history and purpose of the electoral college right.  Regardless of whether we should reform our method of choosing president and adopt a national-popular-vote system, the current system places the actual election of president in the hands of the college.  Hasen argues that we shouldn’t “turn the electors into mighty platonic guardians,” but this misses the point: the electors are, in a limited sense, already platonic guardians.  (As Lessig notes in reply.)  As Hamilton wrote in Federalist No. 68,

“It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. . . . Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it.”

The Founders designed the electoral college system to serve a particular purpose and advance certain values.  They did not choose a method that automatically accorded a certain weight to the popular result in each state, just as they did not choose a method that automatically accorded the presidency to the winner of a national popular vote.  Thus, arguing that the electors should follow the popular result in their own states without any exercise of judgment (as Hasen does) is just as baseless as arguing that the electors should follow the popular result on a nationwide basis based on automatic application of one-person, one-vote principles (as Lessig does).  Both of these arguments defeat the very purpose of having an electoral college in the first place.

Hasen is right to point out that we cannot rely on the national-popular-vote total alone.  As he states, “The election was run under the electoral college system. Would Clinton have won if both sides were going to run up the popular vote? Perhaps, but it is not a given.” But, those who argue that “the rules are the rules,” that the electoral college was in place at the time of the presidential race, and that, therefore, the winner of the electoral college should win the presidency cannot suddenly turn around and argue that the electoral college isn’t allowed to function as it was designed to function.   

This, in effect, seems to be Hasen’s position.  He argues that “the electors in the electoral college are not chosen to exercise judgment but to translate the will of the people in each state” and that if “we expected them to exercise independent judgment we would spend time vetting them.”  The fact that we expect them to automatically adopt the popular result in each state does not mean that they historically have done this or now must do this.  If the popular vote in the state results in a qualified, reasonable candidate–as it historically has–then there would be no grounds for the electors to step in and do anything other than ratify that choice.  But make no mistake, they have retained the option not to ratify that choice since the electoral college was conceived.  And if their historical consistency in ratifying the popular choice has caused us to lapse in our duty to vet them, that would be our fault, not theirs.

After all, many states have passed “faithless elector” laws that provide for the punishment of electors who deviate from the statewide popular vote results.  Why pass these laws at all unless you recognize that the electors, in fact, retain the capacity to vote otherwise?

Hasen also points out that electors nowadays are “generally loyal party members.” But that makes the idea of someone “going rogue” even more important.  If a party loyalist finds his or her party’s own candidate so unqualified that he or she cannot in good conscience vote for the candidate, that should tell us something.  The electoral college need not be comprised of full-fledged “platonic guardians” who completely disregard the popular vote results to still serve its core function: conducting a separate, thorough, discerning evaluation of the candidate to determine whether they are a qualified and reasonable choice for the highest office in the country.

The Constitution was adopted with the electoral college as the method for choosing president.  Unless and until we reform our method of choosing president, that is the process we operate under.  And this approach was specifically devised to ensure the election of a qualified individual.  As Hamilton wrote, in attempting to convince the state conventions to ratify the Constitution and the electoral college process in the first place:

“The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.”

We have all cast our votes.  Now, we must let the electors cast theirs.  As Hasen said: “The election was run under the electoral college system.”  Those electors are charged with a most sober, solemn, and serious duty.  Is that to vote for Trump?  Clinton?  Or another option?  We’ll soon find out.