Free States or Red States: The Supreme Court's Role in Recent Election Law Disputes
[*1535] Professor Gardner's wide-ranging essay, Forcing States to be Free: The Emerging Constitutional Guaran-tee of Radical Democracy, n1 is in the best tradition of American legal scholarship. Gardner finds a common narrative in recent U.S. Supreme Court decisions involving the seemingly disparate doctrinal areas of free speech law, equal pro-tection constraints on voting district lines, and election law. He then proceeds to criticize the Court's embarrassing per-formance in Bush v. Palm Beach County Canvassing Board, n2 and its follow-up Bush v. Gore, n3 not as a sui generis effort to manipulate political outcomes, but instead as part of the mistaken trend he has identified. Finally, applying his analysis to a problem that arose surprisingly often in the 2002 election, Gardner concludes that the Constitution will seldom, if ever, require federal courts to interfere with a state's decision concerning late substitution of candidates on ballots for federal office. Gardner's argument is refreshingly straightforward. Federal courts often find themselves asked to supervise the conditions under which Americans elect public officials. Gardner urges us to distinguish between two purportedly quite different situations in which such judicial intervention is sought. In one class of cases, people prevented from participat-ing in certain state political processes seek redress in federal court. In these cases, Gardner argues, courts act properly in the name of constitutionally guaranteed equal protection when they insist that no American may be improperly shut out of the democratic process. Accordingly, Gardner applauds cases such as Harper v. Virginia Board of Elections n4 (poll taxes [*1536] violate equal protection clause); Carrington v. Rash n5 (state may not bar military personnel from vot-ing merely because state residence is based solely on being stationed at in-state military base), and Kramer v. Union Free School District n6 (school board elections cannot be limited to property taxpayers and parents). As Gardner puts it, all these cases involved courts stepping in to make sure that no one is unfairly excluded from politics. n7 A second set of cases arises when individuals are dissatisfied with the way the state permits them to participate in the political process. These aggrieved individuals are not shut out completely, but for a variety of reasons they challenge the constitutionality of the conditions under which their participation is structured. Gardner urges courts to be much less sympathetic to such claims. It is not the job of the federal courts to insist that every election for state or federal office be an unconstrained aggregation of individual votes. Instead, states should be free to place limits on campaigning or draw district lines in ways that further the state's conception of appropriate government. His undeniable point here is that no set of conditions governing elections can be fairly equated with the underlying concept of democracy. An election in which the candidate who receives a plurality of votes earns office is democratic. So too is an election in which the top two candidates are paired in a run-off so that only a candidate who earns a majority actually assumes office. Accord-ingly, it would be wrong for a federal court to invalidate either type of election in the name of the Constitution. Simi-larly, Gardner generalizes, although courts should do all they can to ensure that everyone gets to participate, they should then get out of the way and let states determine how people participate in politics. This includes letting a state decide for itself what matters regarding elections should be determined by state legislatures and what matters decided perhaps by other branches. A principal vice of Bush v. Palm Beach County Canvassing Board then is that the Court failed to adhere to Gardner's basic precept. It is hard not to admire Gardner's effort to credit the Bush v. Palm Beach Court for sincerity, even as he argues con-vincingly that the Court has taken a wrong turn. And, the issues Gardner raises are provocative and should spark reac-tion beyond the fine commentary contributed by Professors Richard Pildes, Burt Neuborne, and Nathaniel Persily in this issue of the Connecticut Law Review. From my vantage point, however, three points mar Professor Gardner's otherwise insightful analysis and prevent him from persuading us that he presents the right way to think about recent judicial in-tervention in political cases. First, I am troubled by complexity and ultimate instability within Gardner's distinction be-tween exclusions [*1537] from politics (for which Gardner demands redress in the name of America's commitment to "radical egalitarianism") and limits within politics (which Gardner argues the contemporary court has mistakenly in-validated in the name of "radical democracy"). Second, I believe the trend Gardner claims to have identified is some-what amorphous and more importantly is inconsistent with the Court's direction in other important areas of law. I thus have grave reason to doubt that the vision of radical democracy is motivating the Court as it confronts the cases Gardner discusses. Finally, Professor Gardner's discussion of the recent U.S. Supreme Court cases that propelled George W. Bush into the White House leaves me unsure of his precise ground for disagreement with these cases and dissatisfied with his explanation that these cases are part of a trend toward radical democracy or any other replicable principle. I shall consider each of these points in turn, closing with a brief comment on how the cases involving candidate substitu-tions just prior to election day help us to better understand a small part of the significance of Bush v. Gore.