[EL] More context for Arizona Redistricting

[Kirsten Nussbaumer]

I’d also like to add context for thinking about Arizona Independent Redistricting on the eve of decision.  I can share more formal comments after the opinions are out.  Here, I only want to push back a bit on Rick Pildes’s elegant essay.  (I’d been operating on the premise that the month of June is either too late or too early for a meaningful contribution, but Rick’s insights convinces me this was wrong.)

*****
I take the Pildes historical narrative to be a variant of what political scientists have called the “democratized too early” problem—that if only “the Constitution had not been written at the dawn of constitutional democracy” (that is, before democracy’s institutional bugs were perceived and patched), then the U.S. would look more like the rest of the world.  Then we would have independent electoral institutions like those enjoyed by the younger democracies.  

We are instead sadly cursed with the eighteenth-century’s mistakes—mistakes that the Court may be poised to reinforce (as a sincere matter of fidelity to original constitutional history and text, to be sure, but against all reason and experience).  It seems that we can only hope that the Court will (as with the ‘one-person, one-vote’ revolution) give us the election law that we need over the election law that we have inherited.

As a descriptive matter, I probably agree more than I disagree with this sort of narrative.  (Elsewhere, in fact, I’ve argued that the original choices embodied in the Congressional Elections Clause can’t be understood without reference to the fact that federal elections had to commence at a time when the federal government’s administrative capacity was really limited.  Some of the eighteenth-century drafters and ratifiers themselves understood the Elections Clause’s reliance on the state legislatures to be a consequence of this resource constraint.)  

I do, however, have quibbles about the accuracy of the larger historical narrative, and these may make a difference to prescriptions going forward.  Most important, as a descriptive matter, I strongly disagree with the implication that “popular regulation of the processes of election” is a modern idea that the founders hadn’t yet considered.  

Rick is, of course, right that the founders hadn’t encountered a direct democracy mechanism quite like that of Arizona.  And he’s right to imply that the institutional choices embodied in the Elections Clause were not at all conceived of or debated in terms of a preference for representative democracy over direct democracy (contra the many strong but undocumented assertions to this effect in appellant’s briefs).  

What is missing (in the litigation documents and the commentary generally, not just in Rick’s essay) is that, in a different sense, “popular regulation of the processes of election” was extant at the time of the founding.  Granted, it was only ever imperfectly and unevenly implemented in practice.  But it was the most famous and respected constitutional design principle of the day!  Arguably, the ideal had even more credence then than it does today. 

(In the litigation, we did get erudite, brilliant contributions from historian and political scientist amici, including background on the founding era’s increasing distrust of the state legislatures and the consonance of nineteenth-century developments in direct democracy with the eighteenth-century emphasis on popular sovereignty.  It is only the constitutional theory of popular election regulation as such—and its invocation in the founding debates that I am describing as  not explored throughout the litigation).

According to what was often described in late-eighteenth-century debates as the “republican” theory of election law, a (democratic) republic, by definition, needs to ensure that its important election laws—at least the rules for direct popular elections—are constitutional in nature (“fundamental law”), not ordinary law.  By no means should such rules be left to the self-dealing of ordinary legislatures or ministerial discretion.  (Such election rules were often understood to include the elector and office-holder qualifications, as well as many of the time, place and manner rules, such as the choice between district and at-large elections, apportionment formulae, and the choice between secret and public voting.)

This “republicanism” was a theory that called for a form of “popular regulation of the processes of election” because “fundamental” election law is a body of law said to be authored by “the people” acting in their capacity as constitutional sovereigns.  On this understanding, fundamental election law in a republic (unlike the sometimes overlapping but distinctive tradition of legislative house privileges, or the tradition of a confederation) is not a legitimate subject of alteration or innovation by a legislature (absent a special constitutional mandate).  

The story of the influence of this tradition on the actual practice of election law at the founding is complex—more complex than I can represent here.  (A careful account, for example, requires state-by-state distinctions, and separate consideration of the framing and ratification evidence.)  The republican theory was far from hegemonic.  The Congressional Elections Clause and other election rules in the proposed constitution were many times debated without any mention of it (e.g., with arguments especially focused on the debater’s expectations about the relative likelihood of state versus federal abuses).  And some of the founders could have cared less about any theoretical ideal of any stripe.  Other times, the republican theory was respected or given lip-service but then openly traded off with practical concerns militating against constitutionalization of a particular election rule.  Yet, the fact remains that the notion of election law as a properly constitutional domain—authored by “the people”, emphatically not by the elected legislators—was a very frequent theme in the founding debates.

In this context, the Congressional Elections Clause’s reliance on the state legislatures and Congress (expressly casting the time, place and manner rules as legislative, “by law”) was conspicuous.  Its deviation from the republican theory was many times discussed as such during ratification.  Moreover, the deviation did not favor the cause of ratification, and some of the federalists knew it.  (More than a few federalists privately admitted to dislike of the Elections Clause.) 

No other prescriptive theory of election law even competed with this republican theory at the founding.  Some founders did show their awareness of the existence of a British (Blackstonian) constitutional alternative according to which a supreme legislature should be “sovereign”, holding an “uncontrouled" power to innovate in the area of election law.  But when this alternative was acknowledged, the usual point was to reject it as un-American (probably as un-American and wrong-headed as Parliament’s claims to virtually represent the colonies), or the point was to criticize parliamentary power over election law as evidence of Britain’s loss of its own constitutional traditions (exemplified above all by the “unconstitutional” Septennial Act).  Legislatures couldn’t be “sovereign” over election rules because this is the constitutional people’s domain (a view shared by some of the ‘higher-toned’ federalists as well as some of more populist critics of the constitution).

You may wonder about the relevance of this founding republican theory given that the Elections Clause so obviously does permit election regulation through ordinary legislation (“by law”).  How can I say that no other theory competed at the founding when the Elections Clause clearly does not comply with the theory?  Republicanism’s relevance is easier to see for election rules that were regarded as successfully fixed in the constitution (see e.g., the officeholder qualifications at issue in Powell and U.S. Term Limits).   Yet, on my view, recognition of the founding-era discourse about the Election Clause as a departure from theory does make a hash of the Arizona litigation assumptions about the original meaning and context of “legislature”.  

(These assumptions appear on both sides, but are especially put to work in the briefs for appellants.  Appellees assume that the founders just didn’t know better than to lean towards ordinary legislative control over elections, while appellants raise the choice to a matter of institutional preference and even state sovereignty.  Neither side speaks to the many founding debates about the Elections Clause and the choice between fundamental and ordinary election law. 

It is significant that federalists like James Madison (ordinarily, a consistent proponent of the republican theory of election law) or James Wilson (who probably couldn’t care less about it) could have chosen to defend the legislative character of the Clause in Blackstonian terms of legislative sovereignty.  But such a tack was unpopular.  The Clause was more often defended against the predictable “republican” objection on the ground of impossibility or second-best practicality, not by reference to a competing constitutional ideal.  (“We need to be sure there is an entity that can be deputized to run the federal elections.  And who but the state legislatures?)”

The arguments of the Arizona appellants lean heavily on their contrary assumption that the Clause does embody an affirmative ideal of the founding—to the point that they cast election law as properly the domain of the state legislatures (even as an attribute of their “sovereignty”).  They even claim the founders were thereby favoring representative over direct democracy.  In other words, the leading founding constitutionalism of election law is turned on its head.  The founding Americans didn’t know it but they were really British parliamentary sovereigntists!

I don’t argue that my different historical understanding is determinative of how the litigation should be decided.  It wouldn’t be all that hard to craft arguments for appellants that don’t rely on this fictional history of a preferred state legislative domain.  The Clause does, after all, specify “legislatures” and “Congress” even if many in the founding generation were holding their noses about the choice.  

Nonetheless, I think, the text of “legislatures” even as a text can start to look different (not self-evident) once you approach it as dictated by circumstances, not principle.  (Think, for example, of the fact that some of the “times, places, and manner” electoral rules were already variously constitutionalized or not in the different state constitutions for state elections, and that many of the constitutionalized rules were carried over for the first federal elections while other state election rules couldn’t be carried over given the difference between federal and state constituencies.  That is some rules had to be created de novo even in the absence of opportunity for a state constitutional convention…)

I’ve only just begun to lay out my concerns about the (to me, evidence-free) litigation premises about the founding “legislatures”.  Yet my comment is already much too long.  So I’ll jump to the normative implication that more directly speaks to the Rick’s ends" 

Rick’s narrative effectively casts today’s independent electoral institutions as simply superior to the eighteenth-century options.  Even the “mental toolkit” of the founders is described as crude, now superceded.  Again, I may agree more than I disagree.  (In fact, I do think Rick’s scholarship on a constitutionalized election law is more sophisticated than the eighteenth-century theories.)  Still, I think it is our loss if we don’t also consider that the earlier times may have some wisdom on us.  

In particular, the notion of election law as properly an act of popular sovereignty may lead in a different direction than this preference for apolitical independent electoral bodies or a more legislative Supreme Court.  At least, for the more political choices in election law—judgments that may constitute the body politic itself, we could end up worse off if we get institutions that mask the value-judgments or if the institutions are too insulated from popular control.  (This last point was well-made in appellants’ briefs, but I am thinking in particular of recent examples like Egypt).

thanks,

Kirsten
—p.s., I didn’t know how to write about this case without revealing my dim view of some of the history in the litigation (a big part of my hesitation about commenting).  But the truth is I was blown away by the craft and intelligence in the briefs.  (I read all of them.)  I’m jealous of attorneys who get to do this work regularly!  I don’t even assume the history I criticize is lesser as litigation strategy.  My concern is the non-litigation one that we might get our future options foreclosed because we haven’t remembered our past.  (Hopefully, this will all appear to be much ado.)
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