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

4. Deferring to Political Branches on Contested Equality Claims

Deferring to Political Branches on Contested Equality Claims Who Decides the Validity of Contested Political Equality Measures and Why? Voters in Missouri pass a law limiting individual campaign contributions to state officials to amounts as low as $100.1 Congress decides to suspend state-imposed literacy tests for voting in state and local elections six years after the Supreme Court holds that such tests, if fairly administered, do not violate the Equal Protection Clause of the Fourteenth Amendment.2 The New York legislature, in order to comply with the U.S. Justice Department’s interpretation of the Voting Rights Act and to satisfy demands of its members to protect themselves and gain partisan advantage during the redistricting process, draws majority-minority districts that split a cohesive religious group into two districts.3 At first glance, these three actions have little in common beyond embracing the field of election law. In the first case, voters act through the initiative process to curb the role of money in elections. In the second case, Congress acts to impose a national standard for voter qualifications. In the third case, a state legislature pursues its own self-interested goals in redistricting while complying with federally imposed districting standards . The common thread running through each action is that political actors have come together—at least arguably—to impose a contested version of political equality. There is (or was, in the case of literacy tests) no consensus or near-consensus that political equality requires very low campaign contribution limits, a ban on literacy tests in voting, or the creation of majority-minority districts. 4 101 If my argument in chapter 3 is correct, the lack of social consensus means that a plaintiff should not be successful in a constitutional challenge to a jurisdiction’s failure to impose such measures. The question posed in this chapter is how the Court should approach challenges to political actors’ voluntary decisions to impose a contested version of political equality. It appears initially that the Court should not have a basis for striking down such legislation. The fact that a government action imposing political equality is not constitutionally required in no way indicates that it should be constitutionally prohibited. The problem, however, is that sometimes such legislation may run afoul of certain constitutional provisions . For example, the Missouri campaign finance law might be held to violate the First Amendment’s protection against government abridgement of free speech and association. Congress’s imposition of restrictions on states’ voter qualifications may exceed congressional power. And a state’s creation of a majority-minority district might impinge upon the political equality rights of others, such as by diluting the votes of other groups of voters. Moreover, in all cases where a legislative body acts (as opposed to the people acting through the initiative process), there is a danger that the legislature will take action for self-interested reasons but purport to act in the name of political equality. The competing constitutional values at stake when a legislative body enacts a contested version of political equality suggest (as in the case of core claims) that the Court must engage in a careful balancing of interests . The balancing here is somewhat different, however, from balancing the Court should conduct when the state comes forward with a reason not to impose a core equality condition. In the case of a legislative body’s voluntary imposition of a contested vision of political equality, 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 the legislative body while at the same time be skeptical about the means by which the legislative body purports to enforce the contested political equality right. Court deference to value judgments about the balance between political equality and other interests is appropriate for reasons suggested by the previous chapter. Because of fears of ossification and entrenchment, it is unwise for the Court to constitutionalize contested equality claims. But those fears of ossification and entrenchment are much less severe when such measures emerge from the political process rather than the courts. Legislative enactment requires the support of at least a majority 102 | Deferring to Political Branches of legislators (or voters, in the case of the initiative process) and is relatively easily reversed through a new vote of legislators (or voters). California voters, for example, recently...