NOTES
Pouring New Wine Into Old Wineskins:
The Guaranty Clause and a Federalist Jurisprudence
of Voting Rights
PATRICK A. WITHERS*
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
186
I. PROBLEMS WITH THE COURT’S FOURTEENTH AMENDMENT
JURISPRUDENCE AS TO THE PROBLEM OF REDISTRICTING AT THE STATE
AND FEDERAL LEVEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
189
A.
Muddled Doctrinal Development and Errant History . . . . . .
189
B.
A Square Peg in a Round Hole: Using Individual Rights
Rhetoric to Protect Competing Conceptions of Inherently
Group Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
194
II. THE GUARANTY CLAUSE: AN ABORTIVE HISTORY . . . . . . . . . . . . . .
196
A.
Dorr Rebellion: Historical Context . . . . . . . . . . . . . . . . . . .
197
B.
The Luther v. Borden Controversy . . . . . . . . . . . . . . . . . . . .
198
III. THE EMERGENCE OF “REMEDIAL ESSENTIALISM” IN SUPREME COURT
JURISPRUDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
201
IV. “POURING NEW WINE INTO OLD WINESKINS”: A RENEWED
INTERPRETATION OF THE GUARANTY CLAUSE . . . . . . . . . . . . . . . . .
204
V. A MORE COMPLETE JURISPRUDENCE: A NEW FRAMEWORK FOR
ADJUDICATING AND REMEDYING VOTING RIGHTS CLAIMS UNDER THE
GUARANTY CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
208
A.
B.
Voting Rights Enforcement Outside of Congressional
Elections and Reapportionment . . . . . . . . . . . . . . . . . . . . . .
208
Voting Rights Enforcement in Congressional Elections and
Reapportionment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
211
* J.D., Harvard Law School, anticipated May, 2012. I would like to thank Professor Lani Guinier for
her invaluable input and assistance in this project. Any errors or oversights are solely my own. © 2012,
Patrick A. Withers.
185
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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
213
INTRODUCTION
There is perhaps no topic more central to the idea of democracy than the
exercise of the right to vote. While allowing a populace to cast a ballot may not
be sufficient to ensure a vigorous democratic society, it is a crucial necessary
condition to any democracy. It is perhaps strange, then, that so little is included
in the United States Constitution about the right to vote. Indeed, although it has
been implied through decades of tradition and jurisprudence, there is actually no
explicit right to vote contained in the Constitution. Also, despite a few vague
provisions scattered throughout the text, there is little guidance for lawmakers
and government officials in governing elections and electoral structures, both at
the state and federal level. Perhaps for this reason, the Supreme Court has been
hesitant to enter into issues of electoral administration and structure.
One of the main areas in which the Court has expressed this extreme
reluctance to engage in the push-and-pull of electoral politics is in the formation
of congressional and state legislative districts. For decades, the Court steadfastly refused to enter into the process of drawing the lines that make political
districts, famously called the “political thicket” by Justice Frankfurter.1 However, with its landmark decision in Baker v. Carr,2 the Supreme Court leapt
headlong into the issue of apportionment of legislative districts. The Court in
Baker held that there was no political question that would render legislative
redistricting cases nonjusticiable.3 Furthermore, in a turn that would be groundbreaking for the future of voting rights jurisprudence in the United States, the
Court ruled that the apportionment scheme in question was unconstitutional
under the Fourteenth Amendment.4
This Note aims to suggest that, in the Guaranty Clause, the Court missed a
prime opportunity to create a much more balanced jurisprudence than currently
exists under the Fourteenth Amendment. Today, seeing the trajectory of voting
rights cases that rely on the Fourteenth Amendment as a basis for decision,5 it
may seem self-evident to many that the Court would get involved in the
political process of voting. However, there is not complete unanimity on this
point in the scholarship. Prominent dissenters, including the esteemed Constitutional theorist Michael McConnell, point out that until the Court announced its
decision in Baker, the Equal Protection Clause of the Fourteenth Amendment
1. Colegrove v. Green, 328 U.S. 549, 556 (1946).
2. 369 U.S. 186 (1962).
3. Id. at 209.
4. Id.
5. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966) (“[O]nce the franchise is
granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection
Clause of the Fourteenth Amendment.”); Bush v. Gore, 531 U.S. 98, 104–05 (2000) (finding that
different recounting procedures in different Florida counties violated the Equal Protection Clause of the
Fourteenth Amendment).
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had never been applied to voting rights cases,6 nor, for that matter, is the Equal
Protection Clause particularly well-suited to the variety of problems that arise
with regards to voting rights.7 Instead, these theorists and others argue for
resurrecting a rarely-litigated provision of the Constitution known as the Guaranty Clause. This provision,8 providing constitutional assurance for all states of
a “republican form of government,” has been “effectively rendered a nullity by
judicial interpretation.”9 The reason for this stems from the Court finding, for
over a century and a half, that the rights implicated by the Guaranty Clause are
political questions which only Congress may remedy.10 As long as political
questions are not justiciable by the courts, the Guaranty Clause will remain
nothing more than a vague, haunting admonition to Congress.
While this Note aims to change this view and, in doing so, breathe new life
into the oft-neglected Guaranty Clause, it endeavors to do much more. The
Court’s reliance on the Fourteenth Amendment rather than the Guaranty Clause
is only part of the problem that afflicts the Court’s jurisprudence in this area.
Despite the United States being one of the global models for the principles of
federalism, neither the Court nor the academic literature has attempted systematically to apply the principles of federalism to electoral structures in this country.
Given the variety of democratic structures used throughout the many states,11 it
may seem logical and, in fact, prudent to consider electoral systems to be
equally flexible to best fit the democratic variations nationwide. However, by
conflating all of these forms of national and local democracy into the Equal
Protection Clause, this Note will show that the Court has confused its analysis
of legislative districts. While state legislative districts and federal congressional
districts both involve drawing lines for the casting of votes, they are distinct
institutions that deserve separate analysis beyond what the Court has been
willing or able to provide under its Fourteenth Amendment jurisprudence.
In Part I, this Note will lay bare some of the problems, both logical and
practical, with the Court’s entering the “political thicket” using the vehicle of
6. Michael W. McConnell, The Redistricting Cases: Original Mistakes and Current Consequences,
24 HARV. J.L. & PUB. POL’Y 103, 106 (2000–2001).
7. See Jesse H. Choper, Observations on the Guarantee Clause—As Thoughtfully Addressed By
Justice Linde and Professor Eule, 65 U. COLO. L. REV. 741, 741–42 (1993–1994).
8. U.S. CONST. art IV, § 4, cl. 1.
9. Erwin Chemerinsky, Cases under the Guarantee Clause Should Be Justiciable, 65 U. COLO. L.
REV. 849, 850 (1994).
10. See Luther v. Borden, 48 U.S. 1, 42 (1849) (“The fourth section of the fourth article of the
Constitution of the United States provides that the United States shall guarantee to every State in the
Union a republican form of government . . . . Under this article of the Constitution it rests with
Congress to decide what government is the established one in a State. For as the United States
guarantee to each State a republican government, Congress must necessarily decide what government is
established in the State before it can determine whether it is republican or not . . . . And its decision is
binding on every other department of the government, and could not be questioned in a judicial
tribunal.”).
11. There are many variations on the basic democratic structure in this country, from the unicameral
legislature of Nebraska to the presence of Executive Councils in New Hampshire and Massachusetts.
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the Fourteenth Amendment. Through the lens of history, this section will show
how the Fourteenth Amendment is ill-suited doctrinally for the challenges
presented in election law. Part II will briefly outline the Court’s history of
interpreting the Guaranty Clause and show why the Court has chosen not to use
this part of the Constitution to enforce electoral rights. Part III will discuss the
concept of “remedial essentialism,” a concept that may seem tangential, but in
actuality plays a major role in this controversy. Remedial essentialism refers to
the judicial tendency to separate the idea of a remedy from that of a right. For
example, remedial essentialism shows that finding that person A is building on
person B’s land is related to but logically distinct from a Court issuing an
injunction to stop the building. As this Article will show, this idea, which did
not even exist at the time of Luther v. Borden, has grown stronger and more
prevalent in recent decades. With this foundation, Part IV will unite the analyses
presented in the previous sections and show that the current jurisprudence
surrounding the Guaranty Clause is akin to pouring new wine into old wineskins. The Court is applying nineteenth century justiciability doctrine to twentyfirst century electoral jurisprudence. Luther v. Borden and subsequent cases are
concerned with the inability of the Court to affirmatively require action by
Congress.12 This practical idea is the essence motivating the political question
doctrine. However, this doctrine should not prevent the Court from finding a
constitutional violation, while not being able to remedy it themselves. While the
remedy may lie with the political branches to decide, the finding of a constitutional violation, especially one so crucial to American democracy, lies squarely
with the Court. The Court would not need to articulate an exact and consistent
standard, something that the Court has been unable to do since it first entered
the “political thicket.”13 Rather, the Guaranty Clause would merely set a
minimum constitutional standard for “republicanism” below which state constitutions could not sink. This approach is not novel; indeed, it is an approach used
in the context of the protections of individual rights.14 Thus, with a revitalized
Guaranty Clause, the Constitution would not constrain but, in fact, “guarantee”
states freedom to innovate while still ensuring that each state can truly claim the
title of democracy.
After establishing a new, more flexible foundation for judicial management of
voting, Part V will outline a new and comprehensive approach to the question of
redistricting. This approach will undo the truncation inflicted by current jurispru12. 48 U.S. 1 (1849).
13. See Holder v. Hall, 512 U.S. 874, 902 (1994) (Thomas, J., concurring) (“In short, there are
undoubtedly an infinite number of theories of effective suffrage, representation, and the proper
apportionment of political power in a representative democracy . . . . I do not pretend to have provided
the most sophisticated account of the various possibilities; but such matters of political theory are
beyond the ordinary sphere of federal judges. And that is precisely the point. The matters the Court has
set out to resolve in vote dilution cases are questions of political philosophy, not questions of law. As
such, they are not readily subjected to any judicially manageable standards that can guide courts in
attempting to select between competing theories.”).
14. JAMES A. GARDNER, INTERPRETING STATE CONSTITUTIONS 38–41 (2005).
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dence and revive the federalist principles that underlie our constitutional framework. This analysis will begin by focusing on state reapportionment from state
legislatures down to municipal boards. State elections are primarily issues
regarding state citizenship and should be regulated by state law. Therefore,
issues of voting rights and problems of reapportionment in state legislatures
would be handled by state courts interpreting state law. The only need for
federal courts to enter the issue would be if there were a claim of a Guaranty
Clause violation15 or a violation of the Fifteenth Amendment as to racial voting
protections.16 This stands in contrast to enforcement of districting claims for
congressional seats. As permitted by the Constitution, Congress statutorily has
established requirements for drawing congressional districts. The Court can
enforce this or, indeed, any other electoral law just as it would any other statute.
This is very similar to what happens currently. However, if Congress were ever
to repeal this legislation or if a situation would arise which is not covered, the
Court would follow the procedure discussed above for interpreting state election
laws. For, without the intervention of Congress, this is where the right to
establish electoral systems naturally falls. In this way, federalism is respected
while a minimum principle of republicanism under the newly-energized Guaranty Clause can be protected.
I. PROBLEMS WITH THE COURT’S FOURTEENTH AMENDMENT JURISPRUDENCE AS TO
THE PROBLEM OF REDISTRICTING AT THE STATE AND FEDERAL LEVEL
A. Muddled Doctrinal Development and Errant History
Any analysis of the right to vote vis-à-vis political reapportionment would be
incomplete without a basic account of how the Court came to enter the
“political thicket.”17 The traditional narrative for the development of “one
person, one vote” is usually told in a logical, linear fashion. Though the Court
dabbled in the issue of judicial regulation of democratic processes throughout
15. It is true that a potential weakness of this thesis is that, in enforcing the Guaranty Clause, the
Court would need to devise some sort of test, something which this paper argues the Court has been
particularly ill-suited to do. However, the Guaranty Clause test would be one of devising a minimum
standard, namely, what is the least amount of democracy necessary to remain a republic. As this
formulation would merely need to set a floor, not craft a test that would cover any devised scenario, this
task would be much simpler than what has been required of the Court under its current Fourteenth
Amendment approach. While this paper makes no attempt to dictate which standard the Court should
choose, a suitable one, for purposes of example, can be found in Lucas v. Forty-Fourth General
Assembly, 377 U.S. 713, 754 (1964) (Stewart, J., dissenting).
16. It is important to note that this paper does not intend to disrupt the Court’s jurisprudence on
enforcement under the Fifteenth Amendment of racial voting protection including the Voting Rights
Act. This Article’s quarrel is with Fourteenth Amendment enforcement of voting rights, an enforcement
which rests on little textual or historical foundation unlike the Fifteenth Amendment which quite clearly
was intended to combat the evils of racism in this country’s democratic processes.
17. For a more in-depth study of this line of cases informed by historical and political science
analysis, see generally STEPHEN ANSOLABEHERE AND JAMES M. SNYDER, JR., THE END OF INEQUALITY: ONE
PERSON, ONE VOTE AND THE TRANSFORMATION OF AMERICAN POLITICS (2008).
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its history,18 it did not leap into the “political thicket” until the flagship decision
of Baker v. Carr.19 This decision, according to common wisdom, reversed
Colegrove v. Green, which stated that questions of districting are not justiciable
under the Court’s political question doctrine.20 In Baker, the Court followed the
lengthy jurisprudence it had developed over the years for the Fourteenth
Amendment to say that these cases were justiciable; however, they did not
fashion a remedy in this case. Instead, they simply declared the issue justiciable
and remanded the case to the state courts.21 Yet, just a year later, the Court
announced the remedy to be used in these cases in Gray v. Sanders.22 It is this
decision which first announced the now iconic idea of “one person, one vote,”
whereby each legislative district must contain roughly the same number of
people.23 This doctrine was further expanded and confirmed a few years later in
Wesberry v. Sanders24 and Reynolds v. Sims.25 The Court thus moved from a
state of complete disengagement with the political electoral process to a state of
close regulation and protection of voting rights in the period of a few years.
According to conventional wisdom, this was a logical extension of the Fourteenth Amendment to protect a constitutional right to vote during a time when
the Court was very engaged in the process of extending constitutionally protected rights.
This linear, neatly-organized progression towards the inevitable conclusion of
“one person, one vote” quickly begins to unravel if one more closely scrutinizes
the cases above. The question with which the Court grappled in Colegrove was
whether the State of Illinois had to redraw its congressional districts. The Court
declined to decide the case partially because judicial intervention was not the
only method open to correct the political imbalance. Indeed, the Constitution
explicitly permits Congress to direct methods by which states must draw
congressional districts.26 This is not at all the situation that faced the Court in
Baker. Baker was a case in which the Tennessee legislature, bowing to both
influential rural interests and the wishes of a powerful Memphis politician who
controlled a sizeable political machine in the state, defied its own state constitution and refused to reapportion itself.27 At its foundation, this case was not
18. See Luther, 48 U.S. 1; see also infra Part II.
19. 369 U.S. 186 (1962).
20. 328 U.S. 549, 556 (1946).
21. Baker, 369 U.S. at 209, 237.
22. 372 U.S. 368 (1963).
23. Id. at 381. It is interesting to note, however, that, while the Fourteenth Amendment features
prominently in the opinion, at the actual time when the Court announced “one person, one vote,” it
cited many precedents from the Constitution and political history; yet, it did not cite the Fourteenth
Amendment. Id. (“The conception of political equality from the Declaration of Independence, to
Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean
only one thing—one person, one vote.”).
24. 376 U.S. 1 (1964).
25. 377 U.S. 533 (1964).
26. U.S. CONST. art. I, § 4; Colegrove, 328 U.S. at 554.
27. ANSOLABEHERE, supra note 17, at 115.
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about whether it was prudent for the Court to intervene in an area where
Congress had substantial constitutional remedial authority. Rather, Baker asked
whether a state supreme court was prevented from ruling in a case to enforce its
own state constitution.28 While the issues are related ones, when stated in this
manner, it is quite apparent that they are analytically distinct; one relies a great
deal on federal separation of powers, while the other is a question of the powers
of state courts.
With this understanding, the approach of the Court in Baker and the line of
cases it triggered seem much less like a natural progression and more like a
confusing stretch of logic. Baker quite explicitly overturns the Court’s earlier
decision in Colegrove.29 However, a strong argument can be raised that Colegrove merely should have been distinguished in this case. Colegrove was a
matter regarding the federal judiciary and its prudential approach to political
questions given the architecture and division of powers in the United States
Constitution. Thus, the Fourteenth Amendment argument was an unnecessarily
novel and untried approach to political issues30 and, given the judicial canon
against needlessly reaching constitutional issues, imprudent.31
Before moving on to the greater architectural problems created by the
Fourteenth Amendment remedy, it is necessary to discuss some of the textual
and historical problems with the Fourteenth Amendment as a basis for voting
rights. The Fourteenth Amendment was passed as part of the package of
post-Civil War amendments to the Constitution. Building on the distrust of
states fermented by the conflict, the amendment was intended to protect fundamental “privileges” and “immunities” from abridgement by the states in the
future, especially freedom of speech, press, and assembly.32 No longer was
protection of fundamental rights in a state constitution or statute seen as
adequate by the suspicious Congress; more concrete, federal action was warranted.33 It appears, then, that this would be the perfect solution for the Court
eager to find a federal constitutional right to vote. Indeed, in this light, the very
history of the amendment seems to militate for the federal intervention performed by the Court in Baker and its progeny. Yet, a close analysis will show
that, just as with the lead-up to Baker, the application of the Fourteenth
Amendment to this area is not as seamless as it seems.
As stated above, the Fourteenth Amendment was intended to protect alreadyrecognized constitutional rights from state abridgement. It was not intended to
grant new rights, but rather to bind state governments in the same manner that
the Bill of Rights binds the federal government. As the Court did not make
28. Kidd v. McCanless, 292 S.W.2d 40, 43 (Tenn. 1956); ANSOLABEHERE, supra note 17, at 122.
29. 369 U.S. at 249–50 (Douglas, J., concurring).
30. See supra note 7 and accompanying text.
31. See, e.g., Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of
Judicial Review, 78 TEX. L. REV. 1549 (1999).
32. AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 377 (2006).
33. Id.
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non-racial issues of voting and reapportionment into constitutional issues until
Baker, this is a classic example of “putting the cart before the horse.” While the
Fourteenth Amendment could have been used to require states to follow a
federally-recognized right to vote, it logically cannot be used to create this right
sua sponte.
This criticism is not the only problem with the Court’s use of the Fourteenth
Amendment in reapportionment cases; in fact, it is not even the most damning.
As if to buttress its logic for applying the Fourteenth Amendment, the Court has
repeatedly announced that, beyond the specifics of “one person, one vote,” the
right to vote itself is enshrined in the Equal Protection Clause of the Fourteenth
Amendment and, on these grounds, the Court has the obligation to intervene
into the political process. In order for society to remain democratic, the Court
must allow the American people to hold their government accountable.34 However powerful this rhetoric may be, the history of the passage and subsequent
approach to the Fourteenth Amendment simply do not support this narrative. It
is often forgotten that the text of what is now the Fourteenth Amendment was
not formed out of whole cloth; it is the product of a very careful and intentional
set of compromises. In his comprehensive history of the right to vote in the
United States, aptly titled The Right to Vote, Professor Alexander Keyssar
details the negotiations entailed in the passage of the Reconstruction amendments, as well as effects these changes had on a nation still healing from the
trauma of war.35 History shows that the Fourteenth Amendment was a measure
of compromise, permitting the disenfranchisement of racial minorities so long
as a state was willing to accept a reduction in its congressional delegation.36
Indeed, numerous Radical Republicans publically denounced the measure as too
weak a remedy.37 Had any person in Congress believed that the Fourteenth
Amendment was to be interpreted as enshrining an affirmative right to vote in
the Constitution, this criticism certainly would not have been made. Even more
interestingly, a historical examination of the passage of the Fifteenth Amendment illustrates how even that measure was a compromise forged at the last
minute by a Radical Republican majority fearful of losing its majority.38 Indeed,
proposals were made for amendments that would, for example, protect the right
to vote of any adult male “of sound mind” who was not engaged in rebellion or
other “infamous” crimes.39 Yet this draft of the amendment, as well as other
broadly-worded versions like it, failed to pass different parts of the elaborate
34. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 872 (3d ed. 2006); see, e.g.,
Kramer v. Union Free Sch. Dist., 395 U.S. 621, 626 (1969); Harper v. Virginia State Board of Elections,
383 U.S. 663, 666 (1966); Wesberry v. Sanders, 376 U.S. 1, 17 (1964).
35. ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED
STATES 64–93 (2d ed. 2009).
36. Id., at 71–72.
37. Id., at 71.
38. Id., at 74.
39. Id., at 75.
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procedure of the United States Congress.40 If the Fifteenth Amendment, which
came after the Fourteenth Amendment, was explicitly intended not to provide a
universal right of suffrage, it logically follows that the Fourteenth Amendment
was not intended to provide this broad right either.
Any argument that the Fourteenth Amendment serves as a constitutional
shield of the right to vote necessarily focuses on the claim that this approach is
not novel and has been a long-time feature of the Court’s jurisprudence. Not
long will pass before the citation is made to a case from the late 1800s, Yick Wo
v. Hopkins.41 In this case, the Court stated in an oft-cited way that voting is “a
fundamental political right, because preservative of all rights.”42 This statement
of voting as a “fundamental right” seems to comport with the modern idea of
“fundamental rights” under the Fourteenth Amendment as liberties not otherwise in the Constitution on which the state may only impugn if satisfying the
requirements of strict scrutiny.43 However, much evidence militates against this
interpretation of the Yick Wo passage. Beyond the fact that strict scrutiny had
not yet been invented as a doctrine of judicial enforcement of constitutional law,
the context of the section in which this passage rests does not suggest that the
Constitution bears an inalienable right to vote, especially one as absolute as to
necessitate the “one person, one vote” rule. The entire passage from Yick Wo
contains a serious qualifier that is, conveniently, not inserted into the defense of
the Court’s current Fourteenth Amendment voting jurisprudence. The entire
quote reads, “Though not regarded strictly as a natural right, but as a privilege
merely conceded by society according to its will, under certain conditions,
nevertheless it is regarded as a fundamental political right, because preservative
of all rights.”44 The full text suggests that, while the Court is not ruling out the
possibility of voting being fundamental in particular circumstances, it explicitly
states that voting is a “privilege” only so far as society sees fit to grant it.
In fact, the interpretation of Yick Wo suggested above squares quite well with
a plain reading of the text of the Fourteenth Amendment when read in its
entirety. The Fourteenth Amendment, as written and ratified, established what
seem to be relatively dramatic restrictions on both the franchise and the right to
40. Id., at 79–83. It is interesting to note that, while all of these measures failed, different bills failed
at different stages in the process. Indeed, there was a broader text of what is now the Fifteenth
Amendment proposed by Senator Henry Wilson of Massachusetts that prohibited discriminating against
the right to vote or hold political office on the basis of “race, color, nativity, property, education, or
creed.” Id., at 76. This styling of the Fifteenth Amendment came stunningly close to being offered up
for ratification; both the House and the Senate had passed similar versions of the Wilson amendment
with similarly broad protections. However, in the conference committee sent to reconcile differences
between the two bills, the broad language of both houses was rejected in favor of the narrow language
seen in the current text. In a hurry to vote on the measure, Congress had no choice but to ratify the
narrower language. See id., at 79–81. Had this version passed, this nation’s voting rights jurisprudence
would most likely look quite different.
41. 118 U.S. 356 (1886).
42. Id. at 370.
43. See CHEMERINSKY, supra note 34, at 792.
44. Id.
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run for office, an analytically related but distinct issue. The Court’s basis for its
protection of the constitutional right to vote is found in the now-famous Equal
Protection Clause of Section One of the Fourteenth Amendment. Yet, most
people forget that Section One, with its establishment of equal protection and
due process rights against the states as well as its groundbreaking definition of
citizenship,45 is followed by four more sections, many of which do not support
the current Fourteenth Amendment narrative. Indeed, before the ink from the
scrivener’s pen used to write section one had dried, Section Two set out a
structure by which both racial minorities and persons convicted of felonies
could be disenfranchised. The Fourteenth Amendment establishes a structure by
which the size of a state’s delegation in Congress may be decreased in proportion to the amount of the “male inhabitants . . . being twenty-one years of age,
and citizens of the United States . . . [excluding those who] participat[ed] in
rebellion or other crime” not permitted to vote.46 While the Fifteenth Amendment in effect repealed this part of the Fourteenth Amendment, this section is
not without modern effect; the Court has used this section of the Fourteenth
Amendment to uphold the disenfranchisement of felons and ex-felons.47 Furthermore, to the despair of many in the burgeoning suffragist movement, this same
section for the first time introduced the word “male” into the Constitution. In
response, one suffragette famously declared, “if that word ‘male’ be inserted
[into the Constitution], it will take us a century at least to get it out.”48 While
much more could be said about this exciting period of constitutional history, the
point that emerges is quite clear. If congressional history is to mean anything—if the struggle of the suffragettes to ratify the Nineteenth Amendment is
anything more than a dilatory exercise—then the Court’s interpretation of the
Fourteenth Amendment to protect a right to vote under the Constitution must be
incorrect. There is simply no basis for the Court’s broad intervention into the
“political thicket” of the electoral process.
B. A Square Peg in a Round Hole: Using Individual Rights Rhetoric to Protect
Competing Conceptions of Inherently Group Rights
The problem with the Court’s interpretation of the Fourteenth Amendment in
Baker is not limited to textual and historical problems, but also extends to
problems with the framework of election law in this country. In Gray v.
45. AMAR, supra note 32, at 380–81.
46. U.S. CONST. amend. XIV, § 2.
47. Richardson v. Ramirez, 418 U.S. 24, 54 (1974).
48. AMAR, supra note 32, at 394. The insertion of the word “male” into the Fourteenth Amendment
created an unfortunate divide between Civil War-era abolitionists and the suffragettes who were, in
many ways, their intellectual successors. Indeed, somewhat paradoxically, furor over the “male”
provision of the Fourteenth Amendment drove many, but not all, prominent suffragettes into the arms of
southern Democrats for a time, united in their opposition to the text of the Fourteenth Amendment, if
not united in their support of the policies behind the text. Id. at 394–95; KEYSSAR, supra note 35, at
143–45.
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Sanders,49 Wesberry v. Sanders,50 and Reynolds v. Sims,51 the Court implemented the “one person, one vote” standard in both state legislative and
congressional apportionments. In this way, the Court took the bait it had laid for
itself in Baker and fashioned a novel remedy for the equally novel constitutional
violation it had found. Furthermore, being rooted in the Fourteenth Amendment,
the Court’s reasoning required equal population requirements for electoral
districts, regardless of location or where they fit into the federal structure.52
However, this is not the only architectural problem with the Court’s Fourteenth
Amendment jurisprudence. “One person, one vote” implies a highly individualistic approach to the field of voting rights, both in terms of discovering a
violation and in remedying these rights. Yet, while the Court repeatedly has said
that the right to vote is one exercised by individuals,53 this right, especially in
the context of the Fifteenth Amendment, in practice functions through the lens
of group outcomes. Because of this, the “one person, one vote” principle
discovered by applying the Fourteenth Amendment to voting cases clashes with
the interpretation and enforcement of the Fifteenth Amendment.
The Fifteenth Amendment’s prohibition against the abridgement of the right
to vote on the basis of race has been central for decades in advancing the rights
of minority voters. Indeed, even Justice Frankfurter, the man who first coined
the phrase “political thicket” in terms of urging the Court to stay out of the briar
patch of political redistricting, was willing to intervene in cases of political
processes that blatantly violated the prescriptions of the Fifteenth Amendment.54 Justice Frankfurter referred in his opinion to the isolation of a “segment” of the population on racial lines as an integral aspect of the Fifteenth
Amendment violation.55 This idea was developed in subsequent decades by the
Court into the principle of “vote dilution” on the basis of race, defined as
49. 372 U.S. 368, 381 (1963).
50. 376 U.S. 1, 17 (1964).
51. 377 U.S. 533, 558 (1964).
52. It can be argued that, in practice, the Court does acknowledge the federal system in redistricting
cases by permitting more deviation from exact numerical parity in cases of legislative reapportionment
than in cases of congressional reapportionment. See Mahan v. Howell, 410 U.S. 315, 322 (1973)
(“Thus, whereas population alone has been the sole criterion of constitutionality in congressional
redistricting under Art. I, Sec. 2, broader latitude has been afforded the States under the Equal
Protection Clause in state legislative redistricting.”). However, this grant of seeming magnanimity by
the Court does not argue against there still being one underlying legal standard anymore than uneven
enforcement of traffic laws suggests that there are multiple legal standards for different drivers on the
highway. Even the most casual of driver knows the difference between legal standards and human
enforcement of those standards.
53. See, e.g., South v. Peters, 339 U.S. 276, 280 (1950); Reynolds v. Sims, 377 U.S. 533, 561
(1964). Though the Court has referred to the dignitary value of voting, the Court has been explicit that
this dignitary effect is owed to individuals and not to groups as such. Bush v. Gore, 531 U.S. 98, 104
(2000) (“[T]he right to vote as the legislature has prescribed is fundamental; and one source of its
fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each
voter.”).
54. Gomillion v. Lightfoot, 364 U.S. 339, 346 (1960).
55. Id.
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“whether a particular group has been unconstitutionally denied its chance to
effectively influence the political process.”56 This definition is notable in that it
explicitly requires an examining court to look at the effect of the law in question
on a racial group, not just an individual.
The case of Thornburg v. Gingles, decided in the same term, further entrenched this view.57 This case emphasized a variety of factors in finding a
violation under section 2 of the landmark Voting Rights Act, each one of which
relied quite heavily on analysis of the group dynamics of the minority constituency at issue in the election.58 Thus, while not a “group right” in the strict
sense, it would be impossible to perform an analysis of the Voting Rights Act or
the Court’s own interpretation of the Fifteenth Amendment without a close
analysis of racial groups and the role that ethnic groups play in the political
process.
This group-based analysis, shown to be so crucial to vote dilution under the
Fifteenth Amendment, seems to conflict with the individual rights approach to
vote dilution claims made under the Fourteenth Amendment.59 Indeed, the mere
nomenclature of “one person, one vote” evokes this idea of the individual right
as being protected above all else. It is not hard to see the architectural problems
this two-track doctrinal development produces. Before a voter votes, for example, the Court is fiercely protective of whether she is casting her ballot in a
district which strictly adheres to the numerical constraints imposed by the
Court.60 However, once the ballot is cast, the Court suddenly becomes quite
preoccupied not with the mathematics of the election itself but of the group
sociology of the election. It examines the results of the election and asks
whether racial groups were subsumed by a racial majority.61 Indeed, if the
Court’s voting jurisprudence is to be seen as cohesive, then the voting booth
functions much like Clark Kent’s telephone booth; the voter enters protected by
the Fourteenth Amendment as an individual and leaves protected by the Fifteenth Amendment as a member of a cognizable group.
II. THE GUARANTY CLAUSE: AN ABORTIVE HISTORY
So far, this Article has laid out the many logical, textual, and historical
problems that follow from the Court’s foray into the realm of redistricting using
the blunt instrument of the Fourteenth Amendment. History shows, however,
56. Davis v. Bandemer, 478 U.S. 109, 132–33 (1986).
57. 478 U.S. 30 (1986).
58. Id. at 51 (establishing the importance in interpretation of the Voting Rights Act of geographic
compactness, politically cohesive voting on behalf of the minority group, and racial block voting on
behalf of the white majority sufficient to subsume the power of the minority in electing a candidate of
their choice).
59. See supra note 53 and accompanying text.
60. See Kirkpatrick v. Preisler, 394 U.S. 526, 531 (1969); Samuel Issacharoff, Polarized Voting and
the Political Process: The Transformation of Voting Rights Jurisprudence, 90 MICH. L. REV. 1856, 1859
(1992).
61. See Issacharoff, supra note 60, at 531.
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that the Court has not always relied on the Fourteenth Amendment; it has tried
different approaches to voting rights in the past. Before the Fourteenth Amendment was ever written, in fact, the Court dealt with these issues in the littlestudied but groundbreaking case of Luther v. Borden.62 In this case, the Court
was asked to interpret an often-overlooked passage in the Constitution called
the “Guaranty Clause.”63 Though this passage seems tailor-made to the issue of
elections, the Court has refused to interpret it. Instead, as this Part will explain,
the Court has seen the realm of the Guaranty Clause to be coextensive with that
governed by the Court’s jurisprudence under the doctrine of political questions.
Because of this, the Court quite early on arrested its development of the
Guaranty Clause and relegated it to the status of being, in the famous words of
Justice Stone, discussing the Court’s approach to the Tenth Amendment at that
time, “but a truism.”64
A. Dorr Rebellion: Historical Context
In order to understand the Court’s holding in Luther v. Borden, it is necessary
to understand the strange series of events that precipitated the case. While rare,
this country is not immune to periods where states struggle with insurrection.
The most famous example of this is the Civil War when, as schoolchildren
across the country learn, the southern states rose up in an attempt to secede from
the Union. However, though much less well-known, there are other examples of
this political phenomenon as well.
The situation that led to Luther is just such an example. During the first half
of the nineteenth century, Rhode Island struggled with what could be referred to
as an intra-state civil war. Unlike most states that drafted new state constitutions
during the revolutionary era, Rhode Island did not, and, instead, continued to
operate under its original royal charter.65 This charter, like many other colonial
charters, restricted the franchise to “freeman,” defined by the state legislature as
a male citizen who owned or rented property.66 While this voting requirement
started as a low threshold, the speedy urbanization of the state in the early 1800s
changed the proportion dramatically, to the point where, by the 1830s, substantially less than half of the state’s adult white male population was able to vote.67
Not surprisingly, there were many in the state who had problems with such an
outdated and limited construction of the franchise.
Disenfranchised citizens tried a variety of tactics, from petitioning legislators
to militating for a constitutional convention; however, because of the desire of
landowners and sitting legislators to maintain their power, none of these strate62. Luther v. Borden, 48 U.S. 1 (1849).
63. Id. at 42.
64. United States v. Darby, 312 U.S. 100, 124 (1941).
65. KEYSSAR, supra note 35, at 57.
66. Id.
67. Id. It should also be noted that this statistic does not include women and also men of color who,
at the time, were often not considered in debates over the franchise.
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gies seemed to effect real social change.68 So, in the fall of 1841, a large group
of disenfranchised Rhode Island citizens took reform into their own hands and
drafted an entirely new constitution granting broad suffrage rights as well as
reapportioning the legislature.69 In an impressive feat considering that the
telephone was decades away, the collective organized a referendum of the
people in the state who promptly ratified the new constitution.70 Thus, in the
early months of 1842, Rhode Island had two complete governments, each with a
different legislature, different governor, and operating under a different constitution that recognized different citizens as voters.71
It is easy to romanticize interesting historical events such as the rebellion in
Rhode Island. However, the gloss of history should not mask the brutal violence
that these communities were subjected to in the fight for electoral equality.
Local newspapers of the time referred to the leader of the rebellion as “calling
upon armed ruffians from New York” who were enticed to be mercenaries for
the rebellion “induced by the hope of plunder” and expected to engage in
“murder, and rapine [sic].”72 The violence and disruptions were not restricted to
Rhode Island. Reports surfaced during the time of marauders from Rhode Island
crossing the border into states such as Massachusetts to cause trouble in border
communities.73 It may be difficult to perceive in this era of political apathy by
many youth, but these debates over the franchise were more than semantic
debates for policy wonks; they were serious conflicts for which individuals on
both sides were prepared to shed their own blood. Only under this context can
the actions of the Supreme Court in Luther v. Borden make sense. The Court
was not being asked to wade into a mere political conflict, but rather a physical
conflict between two well-armed sides ready to use violence to prevail if
necessary.
B. The Luther v. Borden Controversy
From this bizarre state of affairs rose the quandary at issue in Luther v.
Borden. Borden, the defendant, was a military officer who was sent by the
charter government to arrest Martin Luther, a well-known suffragist and strong
supporter of the new constitution.74 Luther75 sued Borden for breaking and
entering, arguing that the new constitution and the government elected therein
was the true government of Rhode Island so the charter government had no
68. Id. at 57–58.
69. Id. at 58.
70. Id.
71. Id., at 59.
72. Editorial, From Rhode Island — Latest, ALBANY EVENING TIMES, May 19, 1842, at 2.
73. Editorial, THE DAILY MADISONIAN, Feb. 7, 1863, at 2.
74. KEYSSAR, supra note 35, at 60.
75. This story is somewhat confusing because the full names of the parties are “Martin Luther” and
“Luther Borden.” While this should be apparent given that this paper refers to parties by their last
names, “Luther” hereinafter refers to “Martin Luther,” not “Luther Borden.”
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legal authority to arrest him.76 Furthermore, Luther appealed to the Supreme
Court to support his rights against the charter government under the Constitution’s Guaranty Clause; the Court should, in Luther’s opinion, uphold the
“republican form of government” as recently ratified by state referendum
against the inherently anti-republican charter government.77 Even though it
began as a rather mundane breaking and entering case, Luther v. Borden quickly
became something much more. The parties were now asking the Court, in
effect, to decide which government was the legitimate government of Rhode
Island. As national political figures began to line up in support of one of the two
feuding governments,78 the Court was rather unwillingly thrust into the center
of what seemed to be the political crisis of the decade.
The Court, not surprisingly, had little desire to play ringleader to the burgeoning political circus. Therefore, as it had in the past,79 the Court masterfully
sidestepped the political minefield. In its decision in Luther, the Court avoided
ruling on which side the Guaranty Clause supported by claiming, for perhaps
the only time in constitutional history, that an entire clause of the Constitution
could not be enforced by the Court. The Court began by establishing that only
Congress could admit states to the Union as well as admit the new state’s
senators and representatives to their respective bodies under Article IV, Section
3.80 The Court then pivoted to Article IV, Section 4, known as the “Civil
Insurrection Clause,” which states “[The United States] shall protect each of
them [states] against Invasion; and on Application of the Legislature, or of the
Executive (when the Legislature cannot be convened) against domestic Violence.”81 The Court admitted that, even though the text of the Constitution at
this part spoke broadly about the power of the “United States” rather than any
particular federal branch, in practice, this section of the Constitution can only be
enforced by Congress or the President. Indeed, as the Court says, it is up to
Congress to determine the “means proper” to enforce the provision against
insurrection, and Congress had made this determination by passing a law
76. KEYSSAR, supra note 35, at 60.
77. Id.
78. Id. at 59.
79. Decades before Luther v. Borden, the Court showed its ability to avoid dangerous political
situations that risk the reputation of the Court in Marbury v. Madison, 5 U.S. 137 (1803). In this case,
the Court struck down a provision of the Judiciary Act of 1789. The common wisdom is that, beyond a
desire to establish judicial review, one of the motivations for this decision was to avoid having to pick a
side in a brewing controversy between the President and Congress.
80. Luther v. Borden, 48 U.S. 1, 42 (1849).
81. U.S. CONST. art IV, § 4, cl. 2. Perhaps for those that are not familiar with the structure of this
particular section of the Constitution a bit of explanation is in order. The entirety of Article IV, Section
4 reads, “The United States shall guarantee to every State in this Union a Republican Form of
Government, and shall protect each of them against Invasion; and on Application of the Legislature, or
of the Executive (when the Legislature cannot be convened) against domestic Violence.” However, this
sentence has traditionally been separated into two clauses: the Guaranty Clause before the comma and
the Civil Insurrection Clause after the comma.
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delegating the authority to the President.82 Furthermore, in the time of an
insurrection, the Court claimed courts could not call witnesses, hear arguments,
or decide certain matters of law.83 In other words, in situations such as insurrection, courts have no actual power to fashion a remedy. The only remedy lies
with the President and his ability to use militia to suppress anarchy.84 The Court
admitted that, in this case, the President never sent the militia into Rhode Island,
and the concern that the Court presents about not being able to fashion a remedy
in times of military intervention is, in this instance, hypothetical.85 However,
somewhat remarkably, the Court in Luther said that this deviation from the facts
of the case did not matter.
[I]f this right does not reside in the courts when the conflict is raging, if the
judicial power is at that time bound to follow the decision of the political, it
must be equally bound when the contest is over. It cannot, when peace is
restored, punish as offences and crimes the acts which it before recognized,
and was bound to recognize, as lawful.86
Returning to the Guaranty Clause, the Court relied on its interpretation of the
second half of Article IV, Section 4 to inform its reading of the first. Just as the
courts had no power to fashion remedies in cases of civil insurrection, the Court
ruled that they had no power to determine what constituted a “republican” form
of government under the Guaranty Clause, despite the Constitution’s grant of
this authority to the government of the United States as a whole.87
Based on the Court’s decision in Luther, the Guaranty Clause has been
deemed coextensive with the political question doctrine of the Court. Thus, as
opposed to parts of the Constitution such as the Due Process Clause of the
Fourteenth Amendment, which has been subject to reams of judicial opinions
and scholarly ink, the Guaranty Clause has remained frozen in time and
undeveloped since the middle of the nineteenth century.88 Any attempt by parties to
invoke the constitutional protections of the Guaranty Clause has been dismissed by
the Court.89 Therefore, any attempt to reinvigorate the Guaranty Clause as an alternate
to the Court’s Fourteenth Amendment jurisprudence surrounding redistricting and the
right to vote in general must propose an alternate method of thinking about the
82. Luther, 48 U.S. at 43.
83. Id.
84. Id.
85. Id. at 44.
86. Id., at 43.
87. Luther, 48 U.S. at 46–47.
88. It is true that the political question doctrine itself has been subject to a great deal of judicial and
academic interpretation. However, as these interpretations only affect the Guaranty Clause in the most
general of ways, these issues and debates fall outside of the scope of this paper. For a robust, yet
condensed account of the development of and controversies surrounding the political question doctrine,
see CHEMERINSKY, supra note 34, at 128–49.
89. See, e.g., Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 149 (1912); Baker v. Carr, 369
U.S. 186, 218 (1962); Vieth v. Jubelirer, 541 U.S. 267, 277 (2004).
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Guaranty Clause. It is exactly this task, namely the reinvention of the Guaranty
Clause, to which Parts III and IV of this Note now turn.
III. THE EMERGENCE OF “REMEDIAL ESSENTIALISM” IN SUPREME COURT
JURISPRUDENCE
It is necessary at this point to briefly leave behind Baker, Luther, and tales of
Rhode Island insurrections and venture into a seemingly unrelated area of
Constitutional law called “remedial essentialism.” Remedial essentialism refers
to the logical process of sharply severing a cause of action from its subsequent
remedy.90 When the modern Court, utilizing the paradigm of remedial essentialism, begins an inquiry into an issue, it undertakes a two-step process. First, the
Court determines issues of “substantive rights.” Then, if necessary given the
violation, the Court fashions an appropriate remedy. Indeed, in a very real way,
the rights associated with remedies are “secondary” procedural necessities
related to, but distinct from, the substance of the violation.91 The “substance” of
the right consists of what is hoped for or protected by a certain law or
contract.92 Thus, rights in this pure sense exist independent of the litigation as
an effect of living in a world governed by laws and policies.93 In other words,
by virtue of our legal relationships to the state and to others, people have rights
and, as a logical corollary to these rights, duties.94 Remedies are very much
“secondary” to these sorts of rights. While even the great expositors of this
approach to substance and remedy acknowledged that remedies are very important, remedies exist only as a method of enforcement and sanction after a
substantive right has been violated.95 This sort of relationship implies that,
while it is impossible to have a remedy without the violation of some sort of
substantive right, there is no logical bar to having a substantive right exist
without an immediate remedy.
In modern times, the Court has readily and broadly accepted this idea of
remedial essentialism in its constitutional jurisprudence.96 Furthermore, this
treatment of rights as distinct from remedies is not limited to one particular
topic or sub-branch of legal thought, but is found throughout the spread of the
Court’s constitutional jurisprudence. One need look no further than the issue of
abortion and reproductive rights to see the effect of remedial essentialism on
90. Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 857
(1999).
91. Tracy A. Thomas, Congress’ Section 5 Power and Remedial Rights; 34 U.C. DAVIS L. REV. 673,
680 (2001) [hereinafter Section 5].
92. Id. at 682.
93. Tracy A. Thomas, Proportionality and the Supreme Court’s Jurisprudence of Remedies, 59
HASTINGS L.J. 73, 76 (2007) [hereinafter Proportionality]; Levinson, supra note 90, at 861.
94. For a much more in-depth analysis of this logical interplay between rights and duties, as well as
an analysis of the different ideas encapsulated by the term “right,” see generally Wesley Hohfeld, Some
Fundamental Legal Conceptions as Applied in Legal Reasoning, 23 YALE L.J. 16 (1913).
95. Section 5, supra note 91, at 682.
96. Id. at 683; Proportionality, supra note 93, at 89.
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constitutional law in this country. In Ayotte v. Planned Parenthood of Northern
New England, the Court was asked to hear a case involving a New Hampshire
statute requiring parental notification in all cases of an abortion being performed
on a minor.97 The lower court struck down the statute under prior Supreme
Court precedent, saying that the statute must contain an exception in case of
medical emergency.98 The lack of an exception seemed to violate an allowance
of abortion in case of medical emergency to the mother that traces back to Roe
v. Wade itself.99 Indeed, the Court in Ayotte explicitly chose not to revisit the
Court’s previous precedents on the right to abortion when “necessary, in appropriate medical judgment, for the preservation of the life or health of the
mother.”100 However, in the end, the Court vacated the lower court’s previous
decision to strike down the parental notification statute in its entirety and
remanded the case.101 The Court walked this logical tightrope by claiming that,
while it had no desire to reconsider its abortion jurisprudence as a whole, the
Court did hope to scrutinize the remedies associated with an abridgement of the
right to an abortion.102 Indeed, the Court’s decision implied that the lower court,
by inferring that the infringement of the right to an abortion (a substantive right)
required an in toto invalidation of a statute (a remedial right), committed such
an egregious conflation of two distinct legal concepts that it necessitated a
vacation of the decision.103 This case, then, while having dramatic ramifications
in other areas of the law, stands strongly for the proposition that the Court takes
the idea of remedial essentialism quite seriously.
Perhaps the strongest endorsement of the idea of remedial essentialism arises
not in the realm of reproductive rights, but rather in the realm of rights to free
speech and religious practice. In City of Boerne v. Flores, the Court held that
Religious Freedom Restoration Act (RFRA) exceeded the enforcement powers
of Congress under the Fourteenth Amendment.104 Congress enacted RFRA to
effectively reverse a prior precedent holding that general and facially neutral
laws are not violations of the constitutional right to religious freedom, even
when they interfere with such a right in practice.105 Not surprisingly, this move
to undo the Court’s own interpretation of the First Amendment by means of
legislation did not prove effective. However, of interest to this Article are not
the substantive ramifications of this decision on First and Fourteenth Amendment jurisprudence, but rather the means by which the Court struck down the
statute at issue. Rather than merely relying on the Court’s centuries-old power
97. 546 U.S. 320 (2006).
98. Id. at 324–25.
99. See 410 U.S. 113, 164 (1973).
100. Ayotte, 546 U.S. at 327–28 (quoting Planned Parenthood v. Casey, 505 U.S. 833, 879 (1992)
(plurality opinion)).
101. Ayotte, 546 U.S. at 332.
102. Id. at 323.
103. See id.
104. 521 U.S. 507 (1997).
105. Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 878 (1990).
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to “say what the law is,”106 the Court attacked Congress’s interpretation of the
Fourteenth Amendment on which it relied to justify promulgation of the statute.
The Fourteenth Amendment permits Congress to enforce through legislation the
prohibition of state violations of the “privileges and immunities of citizens of
the United States.”107 Relying on this precedent, Congress passed RFRA, which
“enforced” Congress’s belief that no state should enact laws with the effect of
burdening religion, as opposed to the Court which, post-Smith, decided that the
free exercise clause was concerned only with the purpose of the law in
question.108 The Court decided that Congress did not have this sort of authority
under the Fourteenth Amendment because “legislation which alters the meaning
of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress
does not enforce a constitutional right by changing what the right is.”109 While
not using the language of remedial essentialism, the implication is quite clear.
Though Congress believed that it had the implicit authority to enforce its own
interpretation of the First and Fourteenth Amendments, in effect to define the
substance of these provisions, through its explicit grant of remedial authority,
the Court disagreed.110 As in Ayotte, the Court divided constitutional issues into
the realms of substantive right and remedial right; while Congress clearly had
authority over remedial rights in the Fourteenth Amendment, this did not affect
the power of the Court to be the exclusive interpreter of the substantive rights
protected by the Constitution.111 Thus, remedial essentialism, far from being a
novel theory in the Court’s jurisprudence, seems to have an effect on separation
of powers and the very core of this nation’s constitutional structure.
While there are many more examples of the division between substantive
rights and remedial rights throughout a wide spectrum of constitutional decisions,112 there is no need to follow the doctrine of remedial essentialism through
every line of constitutional thought to demonstrate its effect on constitutional
theory as a whole. With this division between substantive rights and remedies
squarely anchored in the mind, attention may now return to the topic of the
Guaranty Clause and the effect, if any, a renewed interpretation of this clause
would have on the problems associated with congressional and legislative
reapportionment. As further analysis will show, remedial essentialism as currently employed by the Court will have dramatic effects on the ways of
interpreting the Guaranty Clause, effects that could, potentially, revolutionize
how courts view elections across the country.
106.
107.
108.
109.
110.
111.
112.
Marbury v. Madison, 5 U.S. 137, 177 (1803).
U.S. CONST. amend. XIV, § 1.
Levinson, supra note 90, at 864.
Flores, 521 U.S. at 519.
Levinson, supra note 90, at 864.
Id.
See Section 5, supra note 91, at 674–75; Proportionality, supra note 93, at 77–79.
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IV. “POURING NEW WINE INTO OLD WINESKINS”: A RENEWED INTERPRETATION OF
THE GUARANTY CLAUSE
The Court’s interpretation of the Constitution is not always a linear progression, where, once a matter is decided, it is permanently fixed in the constellation
of constitutional jurisprudence. Rather, just as the stars of the heavens burn
brightly for a time before dying, so too are constitutional doctrines born and,
oftentimes, die. Sometimes, this change is exogenous and political pressures
outside the Court’s control necessitate a change of course.113 Sometimes,
however, the Court can motivate this change internally by creating new tests
and doctrines and applying them to cases, which can have dramatic effects on
parties both within and outside the government.114 Indeed, history shows that
stare decisis has its limits. Given this history and the importance of democracy
as the bedrock of this nation, it is perhaps curious, therefore, that the Court has
made no attempt to reexamine the Guaranty Clause in light of over a century of
developments in constitutional thought. As there has been so little litigation
over the Guaranty Clause, in order to revisit the place this clause may have in
the modern constitutional framework, it is necessary to return to the seminal
case on which all future Guaranty Clause interpretation is based: Luther v.
Borden.
As discussed in Part II, Luther v. Borden stands for the proposition that the
Guaranty Clause cannot be interpreted by the Court. Indeed, the Court held, in
essence, that the Guaranty Clause is coextensive with the territory covered by
the political question doctrine. This proposition has not been challenged, for the
most part, since the Court handed down the Luther decision over a century ago.
Yet, a brief analysis shows that changes in constitutional interpretative norms
dramatically alter this assumption.
Throughout the opinion, the Court in Luther employs numerous arguments to
show why it cannot enforce the text of the Guaranty Clause and, in so refusing,
cannot rule on which Rhode Island government was legitimate. Furthermore,
the Court seems to group its arguments using a structural kind of metric; the
Court moves from constitutional provision to provision, almost as if it were
proceeding down a list. Using this method, the Court’s decision seems some-
113. See, e.g., NOAH FELDMAN, SCORPIONS: THE BATTLES AND TRIUMPHS OF FDR’S GREAT SUPREME
COURT JUSTICES 103–21 (2010) (discussing the internal and external politics of the court packing plan
and the “switch in time that saved nine” that led to the beginning of the end of the “freedom of
contract” doctrine during the Lochner era). See also Cass R. Sunstein, Constitutionalism After the New
Deal, 101 HARV. L. REV. 421, 437–38 (1987) (discussing the political and social changes which led the
American public to lose faith in laissez-faire economics, the main premise of the Court’s Lochner era
jurisprudence).
114. See, e.g., E. Donald Elliott, Chevron Matters: How the Chevron Doctrine Redefined the Roles
of Congress, Courts and Agencies in Environmental Law, 16 VILL. ENVTL. L.J. 1 (2005) (“Chevron
[U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984)] signified a fundamental paradigm-shift [in administrative law] that redefined the roles of courts and agencies when construing statutes over which agencies
have been given interpretive rights.”); Cass R. Sunstein, Law and Administration After Chevron, 90
COLUM L. REV. 2071, 2085–88 (1990).
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what logical. However, a completely different narrative emerges if the filter of
remedial essentialism is applied to the arguments made in Luther. If this is
done, it quickly becomes clear that, in Luther, the Court is mainly concerned
with the issue of remedy. Though the Court makes a variety of arguments, they
are mostly reducible to the proposition that the Court, because of its institutional
competence and lack of physical enforcement power, is unable to shape a
remedy. For instance, the Court gives in the opinion the excuse that the Court
should avoid ruling on the proper government of Rhode Island because the
President had already declared his support and his decision, if need be, could be
supported by the military.
The interference of the President, therefore, by announcing his determination
[of which government was legitimate in Rhode Island], was as effectual as if
the militia had been assembled under his orders. And it should be equally
authoritative. For certainly no court of the United States, with a knowledge of
this decision, would have been justified in recognizing the opposing party as
the lawful government; or in treating as wrongdoers or insurgents the officers
of the government which the President had recognized, and was prepared to
support by an armed force.115
The Court deduced that because the President, with the full force of the
military, had made up his mind, the Court could not interfere, as “[j]udicial
power presupposes an established government capable of enacting laws and
enforcing their execution.”116 This is not an argument about rights, but rather
remedies. In the heady prose of legal discourse, the Court is basically saying
that no right can be found in this case as the Court is impotent to provide a way
to remedy that right.
While the proposition that the Court was unable to fashion remedies in the
case of Luther can be investigated further, the key problem with the Luther
decision given modern constitutional jurisprudence is that it poses a logically
dubious proposition. It would be scandalous to many people both inside and
outside the judiciary to imply that rights are a necessary corollary to remedies
and not the other way around. It would imply that this country, at its core, is not
a society of rights but rather ex-post remedies and exigencies. This certainly
cannot be true. Indeed, since the Court penned its decision in Luther, the Court
has seen itself stand up multiple times for principles of rights, even when armed
forces were arrayed against it.
The Court, relying on its own gravitas and moral power in the constitutional
framework, has ruled and given orders it saw fit and expected the armed
resistance to fall in line. In its landmark ruling in Brown v. Board of Education,
the Court did not facially consider remedy or physical force into account when
115. Luther v. Borden, 48 U.S. 1, 44 (1849).
116. Id. at 39.
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it made its ruling.117 In fact, the unanimous Court explicitly declined to decide
on a remedy in the case, instead choosing to hear arguments on remedy at a
later date.118 When the Court ruled in Brown, there was no guarantee that the
public would heed the words of the Court; in fact, many were arguing even
years after the decision that the exhortations of the Court would not be
heeded.119 Indeed, Brown did prove contentious in its enforcement, necessitating in certain instances that federal troops be sent in to overcome armed police
and National Guard members sent by state governments to prevent the implementation of the Court’s decision.120
Nowhere in Brown did the Court hint that the balance of military power in the
streets served any role in its determination of the constitutional rights in the
case. This same lack of deference, as well as the Court’s inability to physically
defend its decision against armed forces, is continued in recent years by cases in
which the Court has struck down a variety of military actions, from forbidding
military detainees to file writs of habeas corpus121 to not according enemy
combatants due process rights in military tribunals.122 Thus, it seems that the
Luther Court’s reasoning that the Guaranty Clause could not be enforced
because the Court is physically unable to create remedies is an anachronism and
stands blatantly out of step with current Court jurisprudence.
Those who wish to rehabilitate the reasoning in Luther, by holding the
Guaranty Clause nonjusticiable, seem to have only one option available to them,
namely that while the reasoning is outdated, the Guaranty Clause still belongs
squarely within the Court’s political question doctrine. However, without the
unquestioned assumption of the Luther decision being correctly decided to
bolster the argument, this idea also struggles to find a solid constitutional
foundation. The foundation of what is now the political question doctrine rests
in the iconic Marbury v. Madison.123 The actions of the President in Marbury
were based not on individual rights, but on purely discretionary powers controllable only by the political process and the President’s “own conscience.”124 The
Court held these decisions “political” in nature and unreviewable by the Court.125
117. 347 U.S. 483 (1955).
118. Id. at 492 (“[B]ecause of the wide applicability of this decision, and because of the great variety
of local conditions, the formulation of decrees in these cases presents problems of considerable
complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the
primary question—the constitutionality of segregation in public education . . . . In order that we may
have the full assistance of the parties in formulating decrees, the cases will be restored to the docket,
and the parties are requested to present further argument.”).
119. See Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma,
93 HARV. L. REV. 518, 520 (1980).
120. Raymond T. Diamond, Confrontation as Rejoinder to Compromise: Reflections on the Little
Rock Desegregation Crisis, 11 NAT’L BLACK L.J. 151, 157, 159 (1988).
121. Rasul v. Bush, 542 U.S. 466 (2004).
122. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
123. 5 U.S. (1 Cranch) 137 (1803).
124. Id. at 165.
125. Id.
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However, interestingly, the Court in Marbury believed that these questions of
power between branches of government stood in sharp contrast to questions of
individual rights in relation to specific constitutional provisions which seem to
be justiciable under the Marbury decision.126 As issues of voting rights are
considered by the Court to be issues about individual rights and redressing
individualized wrongs, this definition of political question would clearly not
support inclusion of these cases under the political question doctrine.
Ironically, one of the lengthiest statements of the modern political question
doctrine can be found in the case which began the electoral rights quagmire in
which the Court finds itself: Baker v. Carr.127 The Baker decision gives a rather
lengthy definition of what constitutes a political question, one that bears repeating here:
Prominent on the surface of any case held to involve a political question is
found a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding without
an initial policy determination of a kind clearly for nonjudicial discretion; or
the impossibility of a court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already
made; or the potentiality of embarrassment from multifarious pronouncements
by various departments on one question.128
There are many scholars who believe that definition is fundamentally fluid,
based on the case-by-case determination by the Court of the merits and issues.129 This may, in fact, be true. However, even assuming that the Court has
created a “judicially discoverable and manageable standard” in this formulation,
a quick review shows quite clearly that, on its face, the text does not apply to
the determination of rights in Guaranty Clause cases. The Guaranty Clause
explicitly refers to the “United States” in entrusting its enforcement power and
not to any branch of government per se. There is no requirement that the Court
do anything in political controversies other than a simple determination of rights
being violated, which must be considered the province of the Court given the
interpretation of the judicial power by the Court.130 Indeed, the appropriateness
of the Court to intervene in the interpretation of rights disputes surrounding
democratic elections is exactly what the Court was to declare in Baker v.
126. Id. at 170; see CHEMERINSKY, supra note 34, at 130.
127. 369 U.S. 186 (1962).
128. Id. at 217.
129. CHEMERINSKY, supra note 34, at 131. See also, Louis Michael Seidman, The Secret Life of the
Political Question Doctrine, 37 J. MARSHALL L. REV. 441, 446–48 (2003); Mark Tushnet, Law and
Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question
Doctrine, 80 N.C. L. REV. 1203, 1204 (2001).
130. See Marbury, 5 U.S. at 177.
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Carr.131 Though it could be done rather succinctly, it would be repetitive to go
through the quotation point by point, stating why each element is not met in the
case of Guaranty Clause adjudication. Yet, this illustrates that the only obstacle
to renewed Court interpretation of the Guaranty Clause is the antiquated text of
Luther v. Borden, a decision on whose continued reliance requires pouring new
wine into old wineskins.
V. A MORE COMPLETE JURISPRUDENCE: A NEW FRAMEWORK FOR ADJUDICATING
AND REMEDYING VOTING RIGHTS CLAIMS UNDER THE GUARANTY CLAUSE
While this Note goes to great lengths to tear down the Court’s current errant
jurisprudence on voting adjudication under the Fourteenth Amendment, it only
does so to lay a foundation for a more complete jurisprudence for voting rights.
As stated earlier, the Court’s current jurisprudence has hamstrung the judiciary
in its remedies, constraining the rich universe of democracy with the fetters of
the doctrine of equipopulation, a principle which is found nowhere in the
Constitution. It is for the purpose of freeing the Court’s conception of democracy more than pure academic musing that this Article endeavors to revive the
forgotten Guaranty Clause. Now, this final Part shall sketch briefly how a
newly-revived Guaranty Clause jurisprudence would decide and resolve cases
of voting rights. While it would function slightly differently than the Court’s
procedure under the Fourteenth Amendment, the process as outlined here will,
hopefully, not only be novel but also prove to free voting rights jurisprudence
from many of the maladies from which it currently suffers.
This Part is divided into two sections to deal with congressional elections
separately from state and municipal elections. While they are interrelated
processes that share common principles, they are distinct in the role they serve
in the federal system. Besides being more faithful to the principle of federalism
than the current jurisprudence, this method has the added benefit of presenting a
more holistic form of adjudication and remedy. For, this country does not have
one judiciary, but rather a multitude, from state district and appellate courts to
federal magistrate courts. This section will elucidate how these courts play a
role in defending democracy and upholding voting rights under this new
jurisprudence.
A. Voting Rights Enforcement Outside of Congressional Elections and
Reapportionment
Though it may seem odd at first glance, it is most helpful to look at the
process of voting rights, both substantive and remedial, outside of the context of
congressional elections. This process would literally include all elections beyond that of members of Congress, from state governor all the way down to the
board of directors of a municipal water treatment district. With the clutter of
131. 369 U.S. at 209.
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equipopulation standards and the baggage of the Court’s elaborate Fourteenth
Amendment jurisprudence brushed aside, the issue of voting rights appears to
be a much simpler issue. Except for cases such as those where racial discrimination is alleged132 or where a state deviates from fundamental principles so much
that the state is, in effect, no longer a democracy,133 these cases involve the
relationship between citizens and their state governments vis-à-vis the state
constitution and, therefore, should be handled by state courts. As history has
shown, one theory of this relationship cannot be generalized across the nation;
each state depending on its own size, location, and history conceives “representation” differently.134 Furthermore, in those circumstances where claims of
violations do arise in federal court but are, in fact, suits under state constitutional rights, federal courts should not be hesitant to certify questions to state
courts for decision. Even if the text of a state constitutional provision is
textually identical to a provision in the U.S. Constitution, the federal courts
should not assume they were intended to be interpreted the same way.135
Indeed, often times, state constitutions provide a heightened protection of
individual rights and liberties than does the federal Constitution, a principle that
has been acknowledged by the Court.136 Whatever procedural mechanism is
used, however, it should be clear that, except for the limited cases outlined
above, the right can only be adjudicated under the federal Constitution. Therefore, the federal courts are best able to determine the boundaries of this right;
voting rights should be adjudicated according to the dictates of state constitutions and with the maximum involvement of state judges who are most experienced with interpreting their particular state’s constitution.
Regardless of the court that hears the voting rights case in this new scheme or
132. See supra note 16 and accompanying text.
133. See supra note 15 and accompanying text. Again, while it falls beyond of the scope of this Note
to dictate exactly what would constitute a complete deprivation of democratic government, it would
behoove the Court to set the threshold rather low (e.g., a state law declaring governors are to be
appointed rather than elected), lest in creating its new doctrine it creates something that hamstrings it as
much as the Fourteenth Amendment doctrine from which it is escaping. The author would recommend
the Court follow the often-quoted exhortation of Justice Potter Stewart in his concurrence in Jacobellis
v. Ohio that, when it comes to defining pornography, “I know it when I see it.” 378 U.S. 184, 197
(1964).
134. See SAMUEL ISSACHAROFF ET AL., THE LAW OF DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL
PROCESS 1192 (3d ed. 2007). Analyzing the electoral structures before large-scale intervention by courts
and Congress shows a dramatic difference between electoral structures in states with small populations
versus those with large populations. Smaller states tended to see representation in spatial terms and
therefore apportioned according to geographic boundaries while larger states tended to see representation as less community-based and more based on pure numbers and population. That led the former to
adopt systems emphasizing officials representing places while the latter adopted systems primarily
concerned with representatives representing equal numbers of people. Id. Furthermore, there is some
evidence that Congress realized this and passed the Apportionment Act of 1842 for the purpose of
imposing the equipopulation principle across the board for political reasons; delegations from smaller
states tended to vote more cohesively and, therefore, more effectively in the House to the detriment of
larger state delegations. Id. at 1192–93.
135. GARDNER, supra note 14, at 15–18.
136. See id. at 98–100. See Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 91 (1980).
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under whose law the violation is found, the true strength in decoupling voting
rights from the Fourteenth Amendment lies in the remedies that courts can use.
A person who studies the law of democracy for any length of time will quickly
see that there are few constants within Court opinions on the subject. However,
as stated earlier, one of the few constants has been a wariness of the Court to
craft remedies in voting rights cases. In fact, this is the concern which first
motivated Justice Frankfurter to coin the “political thicket” phrase. Under the
theory of voting rights posited by this Article, however, there is no need to tie
the court-fashioned remedy to the ruling on the violation of the right. The idea
of courts delegating remedial solutions is not new. Indeed, courts have remanded issues to other courts throughout the existence of the judiciary. Yet, the
legal flexibility advocated by this Article would permit courts, especially federal
courts, to remand for remedy to state courts which, because they are comprised
of local citizens, often have a superior understanding of local politics and
exigencies.
Courts could also remand to legislatures for the purpose of properly addressing the concerns of the court in question. If a court is fearful that the process of
designing electoral systems is inherently political, it could simply make the
determination that a certain electoral system violated a certain federal or state
threshold and send the plan back to the legislature to try again. Though this may
raise a question about the power of a court to require action by a coequal branch
of government, this should not pose any serious concern, especially in the case
of a state court. In practice, courts have not traditionally enforced their own
judgments; they require the action of an executive or other official to enforce
the judgment. Thus, the argument that the Court cannot require things of the
legislature, as it cannot enforce them if necessary, is facetious. There is also a
strong argument that courts have other means to enforce their will beyond
handcuffs and clubs. Legislatures, in the end, are accountable to voters through
the ballot box. It has been argued since the Jacksonian era that state judges
possess a certain amount of legitimacy in the eyes of citizens because, in most
cases, they are not protected by life tenure but are electorally accountable to the
people.137 Therefore, an order by a court, especially a state court, would have a
sway of legitimacy that legislators would be foolish to ignore, lest they be seen
as unconcerned with a legal order and punished at the ballot box. Political
pressure in this way can ensure that courts can require legislatures to craft
remedies to violations of voting rights. Indeed, this method is also quite
appropriate, as it is only fitting for remedies to democratic infirmities to be
enforced through democratic means.
Much more could be written about different combinations of courts and
legislatures that could serve as adjudicators and sources of remedy to voting
rights claims. However, it is important to note that, under a Guaranty Clausebased voting jurisprudence, all of these combinations are possible. The Guar137. GARDNER, supra note 14, at 211–12.
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anty Clause would provide, in cases excluding racial discrimination, a minimum
threshold of democratic protection in the Constitution. Beyond this, each state is
free to establish different requirements for what democracy means in the
context of that state’s geography and history. Furthermore, and in many ways
most importantly, finders of a voting violation would be free to allow local
courts and legislatures to decide the specifics of a remedy under the supervision
of the adjudicating court. This would permit judges to serve more as umpires,
the role in which they most often excel, and less like scriveners and mapmakers,
drawing lines on maps and defining crucial democratic theories and systems that
cause many both inside138 and outside139 the judiciary to feel uneasy.
B. Voting Rights Enforcement in Congressional Elections and Reapportionment
The issue of elections to Congress, in particular the House of Representatives, is a distinct, albeit related, problem. The Constitution explicitly grants to
Congress the authority to intervene and dictate the “times, places, and manner”
of choosing members of Congress.140 Indeed, unlike some traditionally unexercised constitutional grants,141 Congress has a history of using this provision to
intervene and create rules for congressional elections.142 Furthermore, since
1842, Congress has developed a set of requirements for congressional elections
that would seem familiar to many who are aware of current Court election law
jurisprudence; in various acts, Congress has required the use of single member
districts, compactness, and contiguity in all elections to the House of Representatives.143 Therefore, under the system proposed by this Note, congressional
district litigation will look similar to how it does under the current regime. Yet,
138. See, e.g., supra note 13 and accompanying text.
139. See, e.g., Samuel Issacharoff, Racial Gerrymandering in a Complex World: A Reply to Judge
Sentelle, 45 CATH. U. L. REV. 1257, 1263 (1995).
140. U.S. CONST. art. I, § 4.
141. See U.S. CONST. art. V (stating that Constitutional amendments may be made by a convention
after petition by two-thirds of the state legislatures). The lack of use of this provision has led scholars to
wonder what would happen if a new convention were called and what authority this body would have
and question the particular wisdom of the procedure given its uncertain nature. See generally Walter E.
Dellinger, The Recurring Question of the “Limited” Constitutional Convention, 88 YALE L.J. 1623
(1978); Lawrence H. Tribe, Issues Raised by Requesting Congress to Call a Constitutional Convention
to Propose a Balanced Budget Amendment, 10 PAC. L. J. 627 (1979).
142. See Reapportionment Act of 1842, 5 Stat. 491. It is interesting to note that elections were seen
as such a function of local government that, even after this Act was passed by Congress acting with a
clear constitutional imprimatur, New Hampshire, Georgia, Mississippi, and Missouri conducted their
elections using at-large systems, a process incongruous with the Reapportionment Act. ISSACHAROFF,
supra note 130, at 1193. Furthermore, despite this blatant violation of federal law and clear authority to
remedy this violation by refusing to seat delegations elected under processes that violated the Act, the
House seated all the delegations in question. Id.
143. ISSACHAROFF, supra note 134, at 1193. It is interesting to note that Congress did not state all of
these requirements at once; they have developed over a slow evolutionary process. While the use of
single-member districts was required in the original Apportionment Act in 1842, Congress did not write
this same requirement into its 1929 Apportionment Act and the Supreme Court declared that this
omission should be seen as Congress letting the requirement lapse. Wood v. Broom, 287 U.S. 1 (1932).
While Congress did eventually reinstate the requirement formally in 1967, between 1929 and 1967
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this should not suggest that the thesis of this Note is completely inapplicable to
congressional reapportionment cases. While the cases and outcomes may appear
similar in practice, their theoretical foundations are completely different. Under
the current jurisprudence, the Court does acknowledge the differences in constitutional foundation between congressional and legislative reapportionment cases.
In effect, though, because of the tight grip of equiproportionality, the only
difference in the two bases is how strict the Court will be in permitting variation
between districts.144 Indeed, to the Court, it seems that the only difference
between these fundamentally different sections of the Constitution is a variance
term.
This would not be the case once the Gordian Knot of the Fourteenth
Amendment is unwound from questions of voting rights and reapportionment
cases. Standards such as single-member districts and equity in population are
only being used in litigation surrounding congressional representation because
Congress has chosen such a system. While Congress has full authority to do so
and this Note makes no claims about the merits of this choice, the courts, in
cases of congressional reapportionment and non-racial “vote dilution,” are
simply carrying out the will of Congress as they would in the interpretation of
any other statute. No implied constitutional principle is “discovered” in these
cases, but rather they are limited in scope to issues of statutory interpretation
and legislative intent.
This difference in theoretical approach would have three powerful effects on
this area of the law. First, the system chosen by Congress in federal elections
has no import in cases of purely state elections, as discussed above. They are
distinct systems, and courts have no more reason to use the federal factors to
decide issues of purely state elections than they would have to use the election
code of California to determine an election dispute in Maine. Second, just as
Congress was free to mandate the current system, it is perfectly free to change
its collective mind and institute a new system. Provided that this new system,
whether it be multi-member districts, cumulative voting, or any alternative
system, does not violate racial equality and does not defeat a population’s
ability to vote in genuinely democratic elections under the Guaranty Clause, the
judiciary’s main role would be to enforce, not dictate, policy decisions. As with
state-based elections, this would permit the political process, rather than the
courts, to make political determinations, allaying the fear of courts wading too
far into the “political thicket.” Third, it should not be forgotten that remedial
essentialist principles apply in these cases as well. The Guaranty Clause says
that enforcement is left to the “United States,” so courts have leeway to decide
the best means of remedying congressional apportionment cases. While a
federal court could choose to remedy the case itself if a typical judicial remedy
many states, both large and small, used multi-member districts to elect at least part of its congressional
delegation. ISSACHAROFF, supra note 134, at 1193.
144. See, e.g., supra note 52 and accompanying text.
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were most appropriate (such as an injunction), federal courts could still allow
state courts, legislatures, or even Congress itself to remedy these cases following the process outlined above. While the courts must supervise these remedies,
they are under no obligation to fashion the remedy themselves. Thus, the
approach outlined in this Note would allow the forces of democracy to play the
lead role in fashioning the political process.
CONCLUSION
This Note has outlined what is, in many ways, a revolutionary approach to
defining and remedying questions of election law. However, there is nothing
radical about this formulation. It takes into account the foundational principles
of federalism, the Constitution, and the reality of changing methods of constitutional interpretation. The real virtue of this system, though, is that it would free
states to be once again laboratories of democracy.145 No longer would states be
bound to solve the intricacies of elections using the crude tools of “sixth grade
arithmetic.”146 Rather, states could determine what systems work best for them,
all within the bounds of a basic, unifying guaranty that, regardless of the
system, democratic values and choices would be respected. While no system
may be perfect, in democracies, this choice belongs to the people. Thus, rather
than threatening democracy, unwinding elections from the Fourteenth Amendment would restore the democratic and pluralistic principles on which this
nation was founded.
145. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
146. Avery v. Midland County, 390 U.S. 474, 510 (1968) (Stewart, J., dissenting).