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Chapter 8
Elections, Representation,
and Voting Rights
CHAPTER OUTLINE
I. INTRODUCTION
A. The Democratization of America
B. Policing the Democratic Process
1. Footnote 4
II. RACIAL DISCRIMINATION IN VOTING RIGHTS
A. Grandfather Clauses
B. The White Primary
C. Literacy Tests
G. At-Large Elections
1. The Supreme Court Rules on At-Large Elections
1. The Supreme Court Revisits the North Carolina Redistricting Plan
I. Challenges to Judicial Election Systems
J. Voter Identification Laws
III. REAPPORTIONMENT: ONE PERSON, ONE VOTE
A. The Reapportionment Revolution
B. Reapportionment under the Burger Court
C. The Methodology of Reapportionment
1. Reapportionment after the 2010 Census
D. Assessing the Reapportionment Decisions
IV. POLITICAL PARTIES AND ELECTORAL FAIRNESS
A. Partisan Gerrymandering
B. The Supreme Court and the 2000 Presidential Election
V. THE PROBLEM OF CAMPAIGN FINANCE
A. The Federal Election Campaign Act Amendments of 1974
B. The McCain-Feingold Law
CRITICAL THINKING QUESTIONS
1. Did the Framers of the Fourteenth Amendment intend for the Equal Protection Clause to
be applied to the problem of malapportionment? If not, how does one justify the Supreme
Court’s historic reapportionment decisions?
2. In your opinion, which is more fundamental in a democracy, the right to vote or freedom
of speech? Defend your answer.
3. Is it appropriate for federal courts to scrutinize forms of local government, such as at-
large elections, in order to insure that minority voting strength is not diluted? Is federal
4. Does the Supreme Court’s requirement of uniform statewide standards for recounting
votes in presidential elections follow logically from its reapportionment decisions of the
1960s?
5. In view of the vast expansion of the right of American citizens to elect their
representatives at all levels of government, what justifications, if any, still exist for
retaining the Electoral College?
6. Did the passage of the Seventeenth Amendment, providing for the popular election of
United States Senators fundamentally alter the balance of power between the national
government and the states?
7. Does Congress have the constitutional authority to prohibit state legislatures from
gerrymandering congressional districts? Does the United States Supreme Court?
8. Do longstanding statutory restrictions favoring the two-party system and discouraging the
growth of third parties violate the constitutional rights of voters? If yes, provide examples
9. Could Congress or a state legislature constitutionally require employers to grant
employees “time off” to vote without a reduction in pay?
10. Have the major concerns of the Voting Rights Act of 1965 been satisfied to the point the
Act is no longer necessary? Should Congress continue to extend the Act or allow it to
expire? When will the states have reached the point where such federal oversight is no
longer necessary?
11. What constitutional arguments might political parties rely on to argue that they, and not
the courts, should rightly be able to establish the rules for voting in party primary
elections?
12. Should Congress have the right to regulate campaign contributions of individuals?
Private associations? Corporations? Could state legislatures limit contributions within a
state for national offices?
LECTURE LAUNCHERS
Introducing Students to the SCOTUS Blog
One way for students interested in the Supreme Court to further their study of the institution is to
follow the process of current litigation as it makes its way to the Court, is argued, and ultimately
an opinion is released. One resource that makes this easy to do is the SCOTUSblog that is
operated by Bloomberg Law. Students are familiar and comfortable digesting in blog form today
and this credible and award winning one provides students with a surplus of information on the
day to day activities of the Supreme Court.
The SCOTUS (Supreme Court Of The United States) blog features multiple columnists who
provide previews of issues that the Court is considering hearing in the near future, as well as
updates on oral arguments as they take place, and ultimately coverage when the Court issues an
opinion.
HYPOTHETICAL PROBLEM (FOR CLASSROOM
DISCUSSION OR ESSAY EXAMINATION)
Suppose that in response to a sharp increase in Latin American immigration to the United States,
Congress in the year 2020 passes, and the President signs into law, the Informed American Voter Act
(IAVA). Under the provisions of this statute the “right to vote in all elections—federal, state, and
local”—will be limited to “citizens of the United States who demonstrate written or spoken
proficiency in the use of the English language.” Such “proficiency” will be determined by local
“boards of language examiners” chosen by “election commissions in each of the fifty states” from
lists of persons “certified to teach the English language at the secondary school level.” The act
however will exempt from the new English Language requirement persons who had been registered
to vote prior to the enactment of the IAVA.
Now suppose that Pedro Gonzales, a native of Mexico who became a citizen of the United States in
2018, will attempt to register to vote in the state of Idaho. Since Mr. Gonzales is unable to read and
write, he will be given an oral English Proficiency Examination per the IAVA’s requirements. The
state establishes a committee of three local high school English teachers to administer the test in this
situation. In Gonzales’ case the board decides by a vote of 2–1 that he “did not show sufficient
government best argue in support of the IAVA? What arguments would Gonzales attorneys present
as reason to question the IAVA’s constitutionality? Finally, citing proper case precedent to date, how
would you as Supreme Court justice vote in this case?
KEY TERMS
representative democracy A form of government in which policy decisions are made by
representatives chosen in periodic competitive elections.
universal suffrage The requirement that all citizens (at least all competent adults not
guilty of serious crimes) be eligible to vote in elections.
tyranny of the majority A political system in which the rights of the individual or
minority group are not protected against the will of the majority.
grandfather clause (1) In its modern, general sense, any legal provision protecting
someone from losing a right or benefit as a result of a change in
policy. (2) In its historic sense, a legal provision limiting the
right to vote to persons whose ancestors held the right to vote
prior to passage of the Fifteenth Amendment in 1870.
white primary Historically, a primary election in which participation was
limited to whites.
literacy tests A test of reading and/or writing skills, often given as a
prerequisite to employment. At one time, literacy tests were
required by many states as preconditions for voting in elections.
gerrymander To intentionally manipulate legislative district boundaries for
political purposes.
racial gerrymandering The intentional manipulation of legislative district boundaries in
order to diminish or enlarge the political influence of African-
vote dilution The reduction or diminution of the voting power of individuals
or minorities as a result of malapportionment, gerrymandering,
or some other discriminatory practice.
malapportionment A condition that exists when legislative districts in a state or
subdivisions of a county or municipality contain substantially
INSTRUCTOR RESOURCES
Ackerman, Bruce A. (ed.). Bush v. Gore: The Question of Legitimacy. New Haven, CT: Yale
University Press, 2002.
Ackerman, Bruce A. (ed.). Voting with Dollars: A New Paradigm for Campaign Finance. New
Haven, CT: Yale University Press, 2002.
Baker, Gordon E. The Reapportionment Revolution. NY: Random House, 1966.
Ball, Howard. The Warren Court’s Conceptions of Democracy: An Evaluation of the Supreme
Court’s Apportionment Cases. Rutherford, NJ: Fairleigh Dickinson University Press, 1971.
Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment.
Cambridge, MA: Harvard University Press, 1977.
Bullock, Charles S., and Kathryn S. Butler. “Voting Rights.” In Tinsley E. Yarbrough (ed.), The
Reagan Administration and Human Rights. NY: Praeger, 1985.
Cortner, Richard C. The Reapportionment Cases. Knoxville, TN: University of Tennessee Press,
1970.
Davidson, Chandler, and Bernard Grofman (eds.). Quiet Revolution in the South: The Impact of the
Voting Rights Act 1965–1990. Princeton, NJ: Princeton University Press, 1994.
1964.
Hanson, Royce. The Political Thicket: Reapportionment and Constitutional Democracy.
Englewood Cliffs, NJ: Prentice-Hall, 1966.
1971.
Taper, Bernard. Gomillion v. Lightfoot: Apartheid in Alabama. NY: McGraw-Hill, 1967.
United States Commission on Civil Rights. 1961 Report. Washington, DC: U.S. Government
Printing Office, 1961.
NOTES ON EXCERPTED CASES
SMITH v. ALLWRIGHT (1944).
In this case the Supreme Court overruled its prior decision in Grovey v. Townsend (1927) and
struck down the “white primary” as violative of the Fifteenth Amendment. The Texas courts had
deemed the Democratic Party a voluntary association placing it outside the reach of the Fifteenth
GOMILLION v. LIGHTFOOT (1960).
The Alabama legislature dramatically altered the boundaries of Tuskegee from a square to a
twenty-eight sided figure. The purpose of the gerrymander was obvious in that all but five of the
city’s four hundred black voters were placed outside the city limits, while no white voters were
displaced. A number of the “former residents” of Tuskegee brought suit in federal court, seeking
a declaratory judgment that the redistricting measure was unconstitutional and an injunction to
prohibit its enforcement. The United States District Court for the Middle District of Alabama
dismissed the case for lack of jurisdiction, stating that it had “no control over, no supervision
over, and no power to change any boundaries of a municipal corporation fixed by a duly
SHELBY COUNTY v. HOLDER (2013).
In this case the Supreme Court considered a question of constitutionality of two provisions of the
Voting Rights Act of 1965 as they were applied to certain states 40 years after the VRA's
passage. The Act was passed by Congress during the civil rights era to better protect minority
rights from state legislation, particularly from states that had previously been the most egregious
offenders. Under scrutiny from the Act were Section 5, which required preclearance from the
federal government before certain state jurisdictions could make any changes to their voting laws,
and Section 4, which outlined the formula for determining which jurisdiction needed to obtain
that preclearance. Dividing 5 to 4, the Court struck down Section 4 based on the notion that the
formula was created with data that was no longer relevant as it was 40 years old. Chief Justice
Roberts authored the Court's opinion which highlighted the current usage of Section 4 as
unconstitutional violating state soverngty and the principle of federalism. The Court did not,
REYNOLDS v. SIMS (1964).
In a case challenging the apportionment of the Alabama legislature, the Supreme Court held that
“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.” Prior to the case the scheme of apportionment in Alabama saw discrepancies in
district size sometimes greater than 40-to-1 in the state Senate. Writing for the 8–1 Court, Chief
KARCHER v. DAGGETT (1983).
In this case the Supreme Court invalidated a New Jersey scheme for congressional districts where
the maximum deviation was less than one percent. The scheme was designed by a democratically
controlled state legislature and signed into law by an outgoing Democratic governor, and
although the districts were very equal in population size, the boundaries had clearly been drawn
to create Democratic majority districts and favor future Democratic Party candidates. The 5–4
BUSH v. GORE (2000).
In what some considered to be the most controversial use of judicial power since Roe v. Wade
(1973), the Supreme Court effectively decided the outcome of the 2000 presidential election. The
case arose from a dispute over the procedures to be used and timeable to be followed in a recount
of the popular vote in the state of Florida, where the margin separating candidates George W.
Bush and Al Gore was razor thin. Due to the closeness of the election nationally, Florida’s
electoral votes were decisive in determining the next president, but deciding who should receive
Florida’s electoral votes proved to be anything but simple. Although Bush ostensibly won the
conducting the manual recount appeared “wholly arbitrary.” Under normal circumstances, the
remedy for this constitutional violation would be to order a statewide manual recount under
judicial supervision using standardized procedures. Of course, the circumstances surrounding this
case were anything but normal. By a 5–4 majority, the Court decided to halt the recount and
effectively declare Bush the winner. Exacerbating the controversy was the fact that the five
justices who voted to halt the recount were the court’s five conservatives: Rehnquist, Scalia,
Thomas, Kennedy and O’Connor. All five had been appointed by Republican presidents, making
CITIZENS UNITED v. FEDERAL ELECTION COMMISSION (2010).
In January 2008, Citizens United, a nonprofit corporation, released a film entitled Hillary: The Movie.
Hillary “was a 90-minute documentary about then Senator Hillary Clinton, who was a candidate in the
Democratic Party’s 2008 Presidential primary elections.” The film “mentions Senator Clinton by
name and depicts interviews with political commentators and other persons, most of them quite
critical of Senator Clinton.” The Bipartisan Campaign Reform Act of 2002 prohibited corporations
and unions from using “general treasury funds to make” any “electioneering communication,” which
is defined as “any broadcast, cable, or satellite communication” that “refers to a clearly identified
candidate for Federal office” and “is made within 30 days of a primary or 60 days of a general
election.” Citizens United wanted the film to be available through “video-on-demand within 30 days
of the 2008 primary election;” however, because it feared such distribution would be prohibited by
