Spring 2024 - Election Law, Voting Rights, and
the American Democratic System
Class 4 - April 18, 2024
Chief Justice Roberts in Rucho v. Common Cause (2019):
What the appellees and dissent seek is an unprecedented
expansion of judicial power. . . . into one of the most
intensely partisan aspects of American political life. That
intervention would be unlimited in scope and duration—it would
recur over and over again around the country with each new round
of districting, for state as well as federal representatives.
Consideration of the impact of today’s ruling on democratic
principles cannot ignore the effect of the unelected and
politically unaccountable branch of the Federal Government
assuming such an extraordinary and unprecedented role.
Justice Kagan dissenting in Rucho v. Common Cause (2019):
For the first time ever, this Court refuses to remedy a
constitutional violation because it thinks the task beyond
judicial capabilities. And not just any constitutional
violation. The partisan gerrymanders in these cases deprived
citizens of the most fundamental of their constitutional rights:
the rights to participate equally in the political process, to
join with others to advance political beliefs, and to choose
their political representatives. In so doing, the partisan
gerrymanders here debased and dishonored our democracy, turning
upside-down the core American idea that all governmental power
derives from the people. These gerrymanders enabled politicians
to entrench themselves in office as against voters' preferences.
They promoted partisanship above respect for the popular will.
They encouraged a politics of polarization and dysfunction. If
left unchecked, gerrymanders like the ones here may irreparably
damage our system of government.
Class 3 - April 11, 2024
Wesberry v. Sanders (1964):
“We hold that, construed in its historical context, the
command of Art. I, § 2, that Representatives be chosen ‘by
the People of the several States’ means that as nearly as is
practicable one man's vote in a congressional election is to
be worth as much as another’s. . . . It would be
extraordinary to suggest that in such statewide elections
the votes of inhabitants of some parts of a State . . .
could be weighted at two or three times the value of the
votes of people living in more populous parts of the State.
. . . We do not believe that the Framers of the Constitution
intended to permit . . . vote-diluting discrimination to be
accomplished through the device of districts containing
widely varied numbers of inhabitants. To say that a vote is
worth more in one district than in another would not only
run counter to our fundamental ideas of democratic
government, it would cast aside the principle of a House of
Representatives elected ‘by the People,’ a principle
tenaciously fought for and established at the Constitutional
Convention.”
Reynolds v. Sims (1964):
1. “We conclude that the Equal Protection Clause guarantees
the opportunity for equal participation by all voters in the
election of state legislators. Diluting the weight of votes
because of place of residence impairs basic constitutional
rights under the Fourteenth Amendment just as much as
invidious discriminations based upon factors such as race,
or economic status.”
2. “The Equal Protection Clause requires that a State make
an honest and good faith effort to construct districts, in
both houses of its legislature, as nearly of equal
population as is practicable. We realize that it is a
practical impossibility to arrange legislative districts so
that each one has an identical number of residents, or
citizens, or voters. Mathematical exactness or precision is
hardly a workable constitutional requirement. . . .
Lower courts can and assuredly will work out more concrete
and specific standards for evaluating state legislative
apportionment schemes in the context of actual litigation. .
. . Developing a body of doctrine on a case-by-case basis
appears to us to provide the most satisfactory means of
arriving at detailed constitutional requirements in the area
of state legislative apportionment. Thus, we proceed to
state here only a few rather general considerations which
appear to us to be relevant.
A State may legitimately desire to maintain the integrity of
various political subdivisions, insofar as possible, and
provide for compact districts of contiguous territory in
designing a legislative apportionment scheme. Valid
considerations may underlie such aims. Indiscriminate
districting, without any regard for political subdivision or
natural or historical boundary lines, may be little more
than an open invitation to partisan gerrymandering. Whatever
the means of accomplishment, the overriding objective must
be substantial equality of population among the various
districts, so that the vote of any citizen is approximately
equal in weight to that of any other citizen in the State.”
Chief Justice Roberts in Rucho v. Common Cause (2019):
What the appellees and dissent seek is an unprecedented
expansion of judicial power. We have never struck down a
partisan gerrymander as unconstitutional—despite various
requests over the past 45 years. The expansion of judicial
authority would not be into just any area of controversy,
but into one of the most intensely partisan aspects of
American political life. That intervention would be
unlimited in scope and duration—it would recur over and over
again around the country with each new round of districting,
for state as well as federal representatives. Consideration
of the impact of today’s ruling on democratic principles
cannot ignore the effect of the unelected and politically
unaccountable branch of the Federal Government assuming such
an extraordinary and unprecedented role.
Justice Kagan dissenting in Rucho v. Common Cause (2019):
For the first time ever, this Court refuses to remedy a
constitutional violation because it thinks the task beyond
judicial capabilities. And not just any constitutional
violation. The partisan gerrymanders in these cases deprived
citizens of the most fundamental of their constitutional
rights: the rights to participate equally in the political
process, to join with others to advance political beliefs,
and to choose their political representatives. In so doing,
the partisan gerrymanders here debased and dishonored our
democracy, turning upside-down the core American idea that
all governmental power derives from the people. These
gerrymanders enabled politicians to entrench themselves in
office as against voters' preferences. They promoted
partisanship above respect for the popular will. They
encouraged a politics of polarization and dysfunction. If
left unchecked, gerrymanders like the ones here may
irreparably damage our system of government.
Class 2 - April 4, 2024
The Elections Clause - Art. I, Sec. IV, Clause 1:
The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the
Legislature thereof; but Congress may at any time make or alter
such Regulations, except as to the Place of chusing Senators.
Class 1 - Mar. 28, 2024
14th Amendment, Section 3:
No person shall be a Senator or Representative in
Congress, or elector of President and
Vice-President, or hold any office, civil or
military, under the United States, or under any
State, who, having previously taken an oath, as a
member of Congress, or as an officer of the United
States, or as a member of any State legislature, or
as an executive or judicial officer of any State, to
support the Constitution of the United States, shall
have engaged in insurrection or rebellion against
the same, or given aid or comfort to the enemies
thereof. But Congress may by a vote of two-thirds of
each House, remove such disability.
14th Amendment, Section 5:
The Congress shall have power to enforce, by
appropriate legislation, the provisions of this
article.
15th Amendment
Section 1
The right of citizens of the United States to vote
shall not be denied or abridged by the United States
or by any State on account of race, color, or
previous condition of servitude.
Section 2
The Congress shall have the power to enforce this
article by appropriate legislation.
South Carolina v. Katzenbach:
Congress exercised its authority under the Fifteenth
Amendment in an inventive manner when it enacted the
Voting Rights Act of 1965. First: the measure
prescribes remedies for voting discrimination which
go into effect without any need for prior
adjudication. This was clearly a legitimate response
to the problem, for which there is ample precedent
under other constitutional provisions. Congress had
found that case-by-case litigation was inadequate to
combat widespread and persistent discrimination in
voting, because of the inordinate amount of time and
energy required to overcome the obstructionist
tactics invariably encountered in these lawsuits.
After enduring nearly a century of systematic
resistance to the Fifteenth Amendment, Congress
might well decide to shift the advantage of time and
inertia from the perpetrators of the evil to its
victims. . . .
Second: the Act intentionally confines these
remedies to a small number of States and political
subdivisions . . . .This, too, was a permissible
method of dealing with the problem. Congress had
learned that substantial voting discrimination
presently occurs in certain sections of the country,
and it knew no way of accurately forecasting whether
the evil might spread elsewhere in the future. In
acceptable legislative fashion, Congress chose to
limit its attention to the geographic areas where
immediate action seemed necessary. The doctrine of
the equality of States, invoked by South Carolina,
does not bar this approach, for that doctrine
applies only to the terms upon which States are
admitted to the Union, and not to the remedies for
local evils which have subsequently appeared.
The Electoral College
U.S. Constitution Article II, Section 1:
Each State shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors, equal to the whole
Number of Senators and Representatives to which the State may be
entitled in the Congress: but no Senator or Representative,
or Person holding an Office of Trust or Profit under the United
States, shall be appointed an Elector.
The Electors shall meet in their respective States, and vote
by Ballot for two Persons, of whom one at least shall not be an
Inhabitant of the same State with themselves. And they
shall make a List of all the Persons voted for, and of the Number
of Votes for each; which List they shall sign and certify, and
transmit sealed to the Seat of the Government of the United
States, directed to the President of the Senate. The President of
the Senate shall, in the Presence of the Senate and House of
Representatives, open all the Certificates, and the Votes shall
then be counted. The Person having the greatest Number of Votes
shall be the President, if such Number be a Majority of the whole
Number of Electors appointed; and if there be more than one who
have such Majority, and have an equal Number of Votes, then the
House of Representatives shall immediately chuse by Ballot one of
them for President; and if no Person have a Majority, then from
the five highest on the List the said House shall in like Manner
chuse the President. But in chusing the President, the Votes shall
be taken by States, the Representation from each State having one
Vote; A quorum for this Purpose shall consist of a Member or
Members from two thirds of the States, and a Majority of all the
States shall be necessary to a Choice. In every Case, after the
Choice of the President, the Person having the greatest Number of
Votes of the Electors shall be the Vice President. But if there
should remain two or more who have equal Votes, the Senate shall
chuse from them by Ballot the Vice President.
The Congress may determine the Time of chusing the Electors, and
the Day on which they shall give their Votes; which Day shall be
the same throughout the United States.
Twelfth Amendment:
The electors shall meet in their respective states and vote by
ballot for President and Vice-President, one of whom, at
least, shall not be an inhabitant of the same state with
themselves; they shall name in their ballots the person voted
for as President, and in distinct ballots the person voted for
as Vice-President, and they shall make distinct lists of all
persons voted for as President, and of all persons voted for as
Vice-President, and of the number of votes for each, which lists
they shall sign and certify, and transmit sealed to the seat of
the government of the United States, directed to the President
of the Senate;--The President of the Senate shall, in the
presence of the Senate and House of Representatives, open all
the certificates and the votes shall then be counted;--the
person having the greatest number of votes for President, shall
be the President, if such number be a majority of the whole
number of electors appointed; and if no person have such
majority, then from the persons having the highest numbers not
exceeding three on the list of those voted for as President, the
House of Representatives shall choose immediately, by ballot,
the President. But in choosing the President, the votes shall be
taken by states, the representation from each state having one
vote; a quorum for this purpose shall consist of a member or
members from two-thirds of the states, and a majority of all the
states shall be necessary to a choice. And if the House of
Representatives shall not choose a President whenever the right
of choice shall devolve upon them, before the fourth day of
March next following, then the Vice-President shall act as
President, as in the case of the death or other constitutional
disability of the President. The person having the greatest
number of votes as Vice-President, shall be the Vice-President,
if such number be a majority of the whole number of electors
appointed, and if no person have a majority, then from the two
highest numbers on the list, the Senate shall choose the
Vice-President; a quorum for the purpose shall consist of
two-thirds of the whole number of Senators, and a majority of
the whole number shall be necessary to a choice. But no person
constitutionally ineligible to the office of President shall be
eligible to that of Vice-President of the United States.