The Supreme Court’s difficulties with vote dilution have deeper roots as well, roots both theoretical and historical. Justice Thomas was correct to point out that vote dilution cases had drawn the Court into questions of “political theory” and that there was no generally accepted theory of representation undergirding American politics. Historically, structures of representation in the United States had been grounded in the relatively unarticulated (and untested) presumption that both individual and communal interests ought to be, and could be, served through geographically based voting units. The right to vote and to representation inhered in the individual, but the communities to which they belonged also had some collective interests and therefore deserved to have some voice in governance—which was why counties were represented in many legislatures and all states had United States senators. In the course of the nineteenth and twentieth centuries, however, the identification of individuals with their geographic communities declined, while their sense of belonging to other types of communities—religious, racial, ethnic, occupational—became more salient. Concomitantly, the laws governing elections, like most areas of law, increasingly stressed the primacy and protection of individual rights. This trend culminated in the one person, one vote doctrine that emerged from the Supreme Court in the 1960s: voting was judged to be an essentially individual right that took precedence over any communal or collective interests. The equal weighting of individual votes could not be undermined by the representation of “trees, land,” particular economic interests, or any other feature of a geographic community.95
This individualistic conception of the right to vote was a coherent one, and given many features of the nation’s history, it was natural that the Court embraced it. But the conception of voting as a purely individual right could produce a truly egalitarian politics only if one presumed that there were no structural biases in the ways in which individual votes were aggregated. Yet this was not the case in the United States in 1965 or 1970: a host of electoral rules led to the aggregation of individual votes in such a way as to make it extremely difficult for members of long-oppressed minority groups to elect candidates whom they preferred. This lack of representation of minority communities and their community interests became recognized as the problem of vote dilution: what was diluted, after all, was not the individual’s vote but the community’s influence. The Supreme Court’s early decisions in dilution cases, beginning with Allen in 1969, constituted a recognition of this fact, as well as a largely tacit effort to reincorporate communal interests into the structures of representative government.
Doing so, however, raised two inevitable and critical questions. First, which communities were to be represented? The Court dodged most of the hornets in that nest by invoking the language of the Fifteenth Amendment and the Voting Rights Act: only racial and some “minority language” communities, not Hasidim, who were assigned to the white community. The answer was clear, if intellectually unsatisfying.
The second question was more difficult: If representation were to be based even in part on communal interests, how much representation were communities entitled to? This seemingly abstract question had to be answered for judges to decide cases; otherwise, they could not know whether communities already had sufficient representation. As Justice Thomas and others noted, however, there were no guidelines in the Constitution or elsewhere in American law that addressed the issue. The most obvious approach would have been to decide that representation should be proportional to the demographic size of the minority community, but both Congress and the Court resisted such a decision—in part because there were no agreed-on norms that would have justified it, and in part because it would have meant explicitly jettisoning the accepted individualistic theory of representation. As a result, the Court lacked moorings and drifted uneasily for more than three decades between the Scylla of pure individualism and the Charybdis of demographic proportionality. Without a normative theory of representation, the issues before the Court were intellectually insoluble. Either some benchmark—some standard of adequate community representation—had to be adopted, or, as an increasing number of judges seemed to be thinking, the effort to prevent vote dilution would have to be abandoned.96
This impasse led a number of scholars—most visibly, Harvard law professor Lani Guinier—to propose a more far-reaching transformation of American electoral procedures: the replacement of winner-take-all elections in single-member districts with proportional representation and multimember districts. Under proportional representation schemes (and there are many), the losers in elections are not left completely unrepresented; as long as they reach a certain threshold of votes, parties or slates of candidates still win seats in city councils, county commissions, and legislatures. Minorities therefore can be represented without contorting the boundaries of political units. Such arrangements, moreover, can circumvent the hazards of essentialism (e.g., presuming that all blacks have identical interests) and of privileging particular communities. All minority groupings—not simply racial ones—would have a chance at representation, and the groupings (or communities) themselves could be fluid over time, depending on the ways in which individuals defined their own interests. Proportional representation would encourage the emergence of multiple parties, and individuals could vote for a black candidate in one election, a class-based candidate in the next, and a Hasid in the third.97
Whatever the virtues of proportional representation, the nation’s two dominant political parties were, and are, unlikely to adopt such a radical shift in electoral rules—a shift that might threaten their own dominance. As a result, the dilemmas of districting and vote dilution seem certain to persist deep into the twenty-first century: the impulse to insure adequate minority representation coexists uneasily with discomfort about race-conscious policy-making. In the longer sweep of history, however, the dilemmas of districting stand forth as the fruits of progress. Only when racial barriers to enfranchisement came down could the problems of districting come into focus. Only when African Americans (and members of language minorities) had the vote could they become concerned with the value or effectiveness of their votes. The knotty problems that have bedeviled Congress and the courts for several decades are the progeny of an expansion of voting rights that took more than a century to achieve.
Two Uneasy Pieces
Felons and Ex-Felons
The impulse to expand the franchise in the 1960s and early 1970s was strong enough to reach even the most unpopular and least powerful group of disfranchised citizens: men and women who had been convicted of crimes. In 1974, all but a handful of states continued to impose the penalty of disfranchisement on felons or those convicted of “infamous” or specified crimes. In roughly half the states, this disability was permanent, although in many it could be lifted, at least in theory, through a pardon or an appeal to designated state officials. Elsewhere, the deprivation of political rights was for a fixed period or coincided with a criminal’s period of incarceration (or probation); in some states, it stretched through parole, and in many, absentee ballot rules effectively barred even detainees awaiting trial. The precise list of crimes that triggered disfranchisement varied considerably from state to state. Major crimes were on the list almost everywhere, but lesser offenses—including vagrancy, breaking a water pipe, participating in a common-law marriage, and stealing edible meat—could do the trick in particular states.98
The heightened interest in suffrage, sparked initially by the civil rights movement, led many lawmakers as well as prisoners’ rights advocates to question the validity and utility of such laws. Permanent disfranchisement in particular seemed to be a draconian response to a single offense, and the fact that convicted felons were disproportionately nonwhite sharpened sensitivity to the issue. Once closely examined, moreover, the lack of a compelling rationale for criminal disfranchisement was difficult to miss. As a penal measure, disfranchisement did not seem to serve any of the four conventional purposes of punishment: there was no evidence that
it deterred crimes; it was an ill-fitting form of retribution; it did not limit the capacity of criminals to commit further crimes; and it certainly did not further the cause of rehabilitation. Indeed, many critics argued that it did just the opposite, preventing ex-felons from resuming a full and normal position in society.99
Equally shaky were the arguments—inherited from the late nineteenth century—that felon disfranchisement was necessary to safeguard the political system. The vision of felons and ex-felons banding together to elect officials who would soften the criminal code seemed divorced from reality. Nor was there evidence to support the claim that a man or woman who once had broken the law would be particularly likely to engage in electoral corruption or permanently lacked the moral competence to make political judgments. The purity of the ballot box did not appear to be threatened by the prospect of felons or ex-felons participating in elections.100
The weakness of the old rationales, coupled with a new emphasis on the ideal of rehabilitation, prompted numerous states to reconfigure their laws. The primary thrust of these reforms was the elimination of lifetime disfranchisement: more than fifteen states took this step between the late 1960s and 1998. In addition, some states narrowed the range of crimes that resulted in disfranchisement, while others tried to iron out inconsistencies—for example, different treatment for convicted felons who were or were not incarcerated. These changes were significant but did not sever the link between suffrage and criminal convictions; the idea of lessening the burdens imposed on criminals was hardly popular, and amending state constitutions could be an arduous procedure. In both Rhode Island and Idaho, the electorate rejected proposals to restore the franchise to felons or ex-felons.101
Meanwhile, the transformation of voting rights law opened the door to challenges to criminal disfranchisement in both state and federal courts. (There were remarkably few court cases dealing with this issue prior to the 1960s.)102 The first wave of challenges was based on the equal protection clause of the Fourteenth Amendment. In 1966, in California, two conscientious objectors who had served prison terms during World War II sued to be reinstated as voters: they had been permanently disfranchised under a California law that barred all those convicted of infamous crimes, a category interpreted to mean all felonies. The California Supreme Court, in Otsuka v. Hite, found that their refusal to enter the armed forces had been based on religious grounds and therefore could not reasonably be construed as a crime so “infamous” that it branded the perpetrators as “morally corrupt and dishonest men.” The Court concluded that the phrase infamous crimes in the California Constitution ought to be interpreted to disfranchise only those who could “reasonably be deemed to constitute a threat to the integrity of the elective process.” Although the Court implicitly recognized the state’s right to bar some criminals, the blanket disfranchisement of all convicted felons was not permissible under the Fourteenth Amendment.103
A year later, a federal appeals court reached the opposite conclusion in a challenge to New York’s law by a man who had been convicted under the Smith Act for conspiring to overthrow the government. In a frequently cited opinion, Judge Henry Friendly concluded not only that the plaintiff’s crime was potentially linked to the integrity of the electoral process but also that there was nothing unreasonable or unconstitutional about criminal disfranchisement statutes. Invoking Lockean principles, Friendly declared that “a man who breaks the laws he has authorized his agent to make for his own governance could fairly have been thought to have abandoned the right to participate in further administering the compact. . . . It can scarcely be deemed unreasonable,” he continued, “for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws . . . the prosecutors who must try them . . . or the judges who are to consider their cases.” This “is especially so” given the “heavy incidence of recidivism and the prevalence of organized crime.” The equal protection clause, according to Friendly, did not require New York to permit “convicted mafiosi to vote for district attorneys or judges.”104
Mafiosi aside, equal protection challenges gained new teeth as a result of the Supreme Court’s assertion in Dunn v. Blumstein that any statute limiting the exercise of the franchise (a “fundamental right”) ought to be subject to the “strict scrutiny” of the courts. This meant that proponents of such laws had to demonstrate that they served a compelling state interest and were both necessary and narrowly tailored to satisfy that interest. In 1972, accordingly, a ninth circuit appeals court sustained the claim of a paroled felon who had been denied the right to vote by the state of Washington. Invoking strict scrutiny, the court observed,courts have been hard pressed to define the state interest served by laws disenfranchising persons convicted of crimes. . . . Search for modern reasons to sustain the old governmental disenfranchisement prerogative has usually ended with a general pronouncement that a state has an interest in preventing persons who have been convicted of serious crimes from participation in the electoral process or a quasi-metaphysical invocation that the interest is preservation of the “purity of the ballot box.”
The court concluded that the state had not established the necessity of such laws, and it quoted Justice Douglas’s opinion in Harper (doing him one better in terms of rhetoric) as grounds for application of the Fourteenth Amendment.
Earlier in our constitutional history, laws disenfranchising persons convicted of crime may have been immune from attack. But constitutional concepts of equal protection are not immutably frozen like insects trapped in Devonian amber. “Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.”105
A year later, the California Supreme Court reached a similar conclusion, after hearing another equal protection challenge to the state’s lifetime disfranchisement of persons convicted of infamous crimes. (California’s constitution had been modified in 1972, giving the legislature more leeway to determine the scope of the exclusion; perhaps aptly, in a state combating smog and so reliant on automobiles, operating a motor vehicle with a faulty muffler could put one at risk of disfranchisement.) The case was initiated as a class action by three ex-felons who had served their prison terms but were still unable to vote. The court, building on federal decisions, concluded that any deprivation of this critical right should come under strict scrutiny; although it conceded a compelling state interest in preventing electoral corruption, the disfranchisement statute was too blunt and ineffective an instrument for furthering that goal. The statute caught in its web far too many individuals who posed no threat whatsoever to the integrity of the electoral system; besides, the state had available more precise and efficacious methods of protecting the sanctity of the ballot box. Going beyond its earlier decision in Otsuka, the court found that the criminal disfranchisement clause of the California Constitution violated the equal protection provisions of the federal Constitution.106
The decision was appealed to the U.S. Supreme Court, where it was overturned. The ruling, in Richardson v. Ramirez, was based on section 2 of the Fourteenth Amendment, which specified that representation in Congress would be reduced for any state that denied the franchise to adult male citizens “except for participation in rebellion, or other crime.” The Court (with Justices Brennan, Douglas, and Marshall dissenting) construed this clause—the interpretation of which was heatedly debated—as a constitutional license for states to disfranchise convicted criminals. Acknowledging that “the legislative history bearing on the meaning of the relevant language . . . is scant indeed,” Justice William Rehnquist, speaking for the majority, concluded that the authors of the Fourteenth Amendment must have intended to permit the states to disfranchise convicted criminals. Since the exclusion of felons had an “affirmative sanction” from the Constitution, it differed from “other state limitations on the franchise which have been held invalid under the Equal Protection Clause.” California’s law therefore was not subject to strict scrutiny and not unconstitutional. The Court did ack
nowledge that a “more modern view” of the issue, stressing the rehabilitation of ex-felons, might well lead to different laws, but it regarded that as an issue to be addressed in a “legislative forum.”107
Soon thereafter, California’s legislature modified its criminal disfranchisement provisions, limiting the disability to the terms of a person’s sentence.108 But the Court’s ruling in Ramirez effectively closed the door on equal protection challenges to the disfranchisement of criminals.109 In 1985, however, the Court carved out an exception after examining the remarkably detailed criminal disfranchisement provisions that had been in force in Alabama since 1901: these provisions disfranchised (among many others) all persons convicted of any crime involving moral turpitude, a characterization that included numerous nonfelony offenses such as vagrancy. Based both on the details of the law and on the overt statements of its sponsors, the Court concluded in Hunter v. Underwood that Alabama’s criminal exclusion did violate the equal protection clause because it was designed to discriminate against blacks. States had the right to disfranchise criminals but not with a racially discriminatory intent.110 (See Table A.15.)
The reach of Hunter was limited, since few states—and none outside the South—had legal codes and track records that demonstrated intent as clearly as did Alabama’s. In the 1990s, a district court even upheld Mississippi’s ban on felon voting because its law, although originally adopted with discriminatory intent, later had been amended and reenacted: this “removed” the “discriminatory taint” from the disfranchisement provision. (One of the more remarkable changes in Mississippi’s law was the 1968 addition of murder and rape to the list of crimes that resulted in disfranchisement: these had not originally been believed to be “black” crimes.) Nonetheless, the ruling in Hunter pointed toward a new avenue of approach to the issue: the claim that criminal disfranchisement statutes were illegal because they discriminated against blacks and Hispanics. This argument was put forward but rebuffed in Wesley v. Collins in 1986: in a sketchy decision, the courts ruled that when Tennessee’s disfranchisement law was “viewed in the context of the ‘totality of circumstances,’ it is apparent that the challenged legislation does not violate the Voting Rights Act.”111
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