Winning Without the Courts Lee Drutman

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Winning Without the Courts

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The Supreme Court and other federal courts are lost for a decade. What is progressives’ recourse? Getting serious about multiparty democracy.

By Lee Drutman Aziz Huq

 from Winter, No. 63 – 24 MIN READ

Tagged ConstitutionDemocracySupreme Court

For two decades, the principle of political equality and the conservative Supreme Court majority have been locked in a struggle over the foundational rules of American democracy. And the principle of political equality is losing. Bigly.

With the Supreme Court (and many lower courts) likely to stay conservative for at least a decade (if not longer), any approach to political equality that depends on the courts is a losing battle. And right now, every approach to political equality in the democratic reformer toolkit, from regulating gerrymandering to enforcing voting rights to attempting to limit money in politics, is vulnerable to activist conservative litigation.

It is time for a new approach that does not depend on the Courts to referee the zero-sum partisan voting wars that now dominate our elections—and will for the foreseeable future. The only way to achieve political equality is to change the rules of the game—in ways that get around the conservative courts. This means breaking out, further, of the binary, two-party system, and becoming a proportional, multiparty democracy.

Such a big change is needed because of three fundamental transformations in the American political landscape, which have devastated the prospects for political equality.

The first transformation is the extent to which conservative jurisprudence has taken a hard-right turn against the very thought of political equality. It instead privileges the autonomy of (partisan) state legislatures and the freedom to spend unlimited money, claiming (wrongly, in our view) that any standard of fairness is arbitrary and, so, unprincipled. This is the plumb line uniting cases involving campaign finance, gerrymandering, and voter suppression, and it amounts to a guiding principle for a new generation of conservative legal scholars and justices.

The second transformation is the extent to which the entire system of American elections now depends on courts to referee “close” electoral calls. Since the 2000 debacle that was Bush v. Gore, we’ve entered a new era in which elections for control of the House, Senate, and presidency are so close, and partisan voting so predictable, that electoral outcomes can easily hinge on the details of the electoral rules. This invites both aggressive manipulation of voting laws beforehand, and then an electoral lawsuit carpet-bombing during and after the election. The main winners here are courts, which take center stage deciding elections. There are also signs that conservative justices are salting away intellectual ammunition to pull another Bush v. Gore under the “right” circumstances: Just look at the warning shot that Justices Gorsuch, Thomas, and Alito fired before the 2020 election, threatening to step in if they didn’t like the way that Pennsylvania counted its votes, and directly citing the 2000 litigation.

The third transformation is the extent to which the courts have become overwhelmingly conservative, and will remain so for the foreseeable future. This is most obviously so at the Supreme Court, where conservatives now have a 6-3 majority that is likely to last for some time. Less visible is the extent to which the lower courts have also been transformed. Roughly a third of all active federal judges on appeals courts were nominated by Trump; almost all are young, Federalist Society-vetted, died-in-the-wool conservatives attentive to the signals emanating from allied politicians, scholars, and activists. If the Republican Party continues to wield state-level power to entrench its minority rule, these courts are likely to green-light the results. To the extent Democratic legislatures in Congress or even in the states attempt to intervene on the side of fairness, they will likely find an activist judiciary bent on blocking them.

The upshot of these three trends is simply this: The contemporary landscape for political equality is a blasted and pitiless one. Since so many obvious paths forward are now closed, a dramatically different approach—superficially more radical, but actually deeply grounded in American history and constitutional norms—is needed if political equality is not to become a mirage.

We think we need now a federal law mandating multimember districts, with proportional voting for the House and the Senate (the House is straightforward, the Senate more complicated). This is no new-fangled or foreign import. The United States has an early, albeit woefully forgotten, history of using such multimember districts in the first half of the nineteenth century. Congress, moreover, has historically employed its unquestioned power over federal elections to toggle between districts and multi-member districts. (It does not have power, though, to impose the same directly on states’ own elections.)

Given this history, we think a federal law implementing multimember districts is plainly constitutional: And while it faces an uphill political path, radical districting reform may well become increasingly plausible, and even attractive, on both sides of the aisle. Or at least that’s what we hope to persuade you of here.

Closing Doors

For decades, pro-democracy advocacy organizations pursued the same strategy for advancing political equality writ large: Move power from partisans and elected politicians toward independent and nonpartisan experts, commissions, and courts. The logic was simple: Partisans and elected politicians are out solely for their own power. Only nonpartisan and independent bodies can be fair and neutral, and so support and expand political equality. This strategy relied heavily on liberal federal courts in the 1960s for key victories. But its intellectual roots go back even deeper to the Progressive Era, when reformers put similar faith in independent expertise and similarly distrusted partisans and elected officials.

Faith in the ability of independent experts to ensure a fair and equal democracy rests on two premises. First, it assumes that independent experts can agree on and enforce standards of fairness. Second, it assumes independent commissions, courts, and other expert bodies can be truly independent of partisan influence.

Both premises have proved fragile. Conservative jurists have successfully pressed the (false) view that fair standards are impossible in practice. And experience suggests that federal courts—let alone independent commissions, independent agencies, and other supposed nonpartisan bodies—cannot be completely insulated from partisan politics. It is certainly possible to imagine a counterfactual world in which Hillary Clinton won the 2016 election, her appointees set the courts in a more liberal direction for decades to come, and all of the investments in fairness-related reform and litigation strategies paid off. But five years later, our actual political reality is on a very different path. And yet our democracy reform and political equality strategies have not yet adjusted to this new reality, or the brute fact that the reform possibilities of 2022 are very different from the possibilities of 2015.

So just how much has conservative jurisprudence taken a hard-right turn?

Let’s start with voting rights, which has been very much in the news this year. For many decades, voting rights equality has been built upon Congress’s power under Amendments to the Constitution ratified after the Civil War. These were enacted to empower the national government to promote directly both racial and political equality.

The only way to achieve political equality is to change the rules of the game—in ways that get around the conservative courts.

The Roberts Court has pinched Congress’s Reconstruction powers in two different ways. On the one hand, it narrowed Congress’s power to act against discriminatory state law. In the well-known Shelby County decision, it invalidated the coverage formula of the Voting Rights Act. There, Chief Justice Roberts invented a new rule to the effect that Congress had to treat all states equally when it protected voting rights. This “equal footing rule,” of course, has nothing to do with the problem of selective defiance the Reconstruction Amendments were meant to address. It has no basis in constitutional text. And the Court has shown no interest in applying it in any other case or domain.

Where the Court does not have a constitutional makeweight to prevent Congress protecting people’s votes, it uses its power to interpret statutes to gut legislative interventions. Last June, a ruling on Section 2 of the Voting Rights Act made it effectively impossible to bring vote denial claims under that provision. The Court didn’t need to come up with a new constitutional principle to do this. It just read the statute with the acidity of an inborn enmity. Congress can technically revisit that statutory interpretation decision. But in practice judicial rulings tend to be very sticky in the teeth of partisan gridlock.

Next up: districting, or more specifically partisan gerrymandering. Until the 1960s, white politicians kept up the Jim Crow settlement by hewing to discriminatory districting plans. Urban neighborhoods, increasingly packed and dominated numerically by minorities, predictably drew the short straw: They had twice, thrice, or more the number of voters as rural areas—which dramatically reduced the political power of cities and especially the minorities in the urban core.

Neither state nor federal legislators were inclined to break up these racial lock-outs. It fell to the Supreme Court. Starting in 1964’s Reynolds v. Sims decision, the Court’s “one person, one vote” decisions broke down these legislative lock-ups.

Fifty-five years later, the Court still recognizes that partisan gerrymandering—packing, cracking, and stacking voters into units politicians can manipulate—is an Equal Protection violation. But it has refused to remedy such violations beyond the one-person, one-vote context. In effect, Chief Justice Roberts has closed the courthouse door to those locked out of politics by gerrymanders, citing a concern that the Court will be seen as politicized. Of course, this is precisely the same logic that the Court reached for in the decades before it announced the one-person, one-vote rule for refusing to enter the “political thicket.” This logic, moreover, is circular: The Court does not become “apolitical” by refusing to remedy some constitutional violations as it simultaneously leans into the project of addressing others—say, those of wealthy campaign donors. In politics, all decisions are political. Non-decisions are simply decisions to affirm the status quo in ways that benefit one side or another.

A growing number of states have placed districting in the hands of independent commissions, sometimes via referendum. State courts too have started to show some interest in questioning the legality of particularly egregious gerrymanders as a matter of state constitutional law.

Yet even here trouble lurks on the horizon. There are hints that the Court might shut down the path of reform that runs through the people, rather than the federal courts, by use of a novel federal constitutional theory. The emerging theory goes as follows: Both the Elections Clause of Article I and Article II’s account of the Electoral College mention the word “legislature,” and therefore state courts cannot block extreme gerrymanders, elections officials cannot make discretionary decisions to address unexpected contingencies (such as pandemic conditions), and voters cannot be certain that their choice of presidential electors won’t be revoked post-election by the state legislature.

In 2015, the Court rejected a challenge to independent redistricting commissions on the theory that the Elections Clause of Article I gave state legislatures a monopoly on election-related matters. Justice Kennedy was the “swing” vote in that case. Chief Justice Roberts dissented. There is almost certainly a majority now for a reversal of that ruling. Another such challenge before the Court would almost certainly spell an end to independent redistricting commissions.

Worse, passing references in Articles I and II to state legislatures could be key to Bush v. Gore Mark II. A trio of conservative justices in 2000 cited the Election Clause to block presidential vote counting. In November 2020, some of the Court’s most conservative justices made noises suggesting the Election Clause or Article II could bar state courts from engaging in election-related rulings. Logically, the same would hold true for state election administrators. Hence, this “independent state legislature” theory offers conservative justices a blank check for intervening after a presidential election on the theory that the state legislature would have done the vote counting differently.

Finally, we come to the sordid question of money in politics. Since the 1970s, Congress and the states have used prohibitions on spending and contributions as devices to keep politics open to all, against the risk that super-wealthy individuals, corporations, and PACs will crowd out the concerns of less wealthy Americans. A Court sensitive to the risks of political suppression might have recognized and accommodated this concern, even as it guarded against self-dealing by incumbent politicians. Not so the Roberts Court. It has hidden behind a mechanical, airily decontextualized reading of the First Amendment to disallow most expenditure limits and some contribution limits.

The 2010 decision in Citizen United v. Federal Election Commission on corporate expenditures sucks up a lot of the oxygen in criticisms of the Court’s campaign-finance caselaw. But greater harm has been done by a subsequent decision from the District of Columbia Court of Appeals, which extended its prohibition to PACs, and a later Supreme Court ruling, striking down aggregate contribution limits for individuals. The Court has not only suppressed the constitutional difference between speaking and spending. It has added the even more pernicious idea that the government “suppresses” speech simply by offering matching funds to financially outmatched candidates. In effect, the Mercers and the Adelsons of the world are treated as delicate flowers that wilt at the state’s hostile glance.

Thanks to judges backed by the Federalist Society and its big-dollar donors, campaign finance now stands in tattered disarray. But the Roberts Court is not done. Until now, it has praised disclosure rules while killing spending and contribution caps. But a bait-and-switch is on the horizon. In July 2021, the Court in Americans for Prosperity v. Bonta granted a sweeping injunction against disclosure mandates in charity regulation. Bonta applied an “exacting” form of constitutional scrutiny not seen in campaign finance-related cases before. It seems a likely prelude to finding that many campaign disclosure laws are therefore invalid under the First Amendment as forced disclosures.

Notice two common threads: First, political equality loses at the Court’s hands, but Republicans consistently gain. Citizens United, an increasing volume of evidence suggests, has helped Republican candidates for office and moved state policy in a more conservative direction. Shelby County directly precipitated a “rash” of voting restrictions that also aided Republican candidates. And a recent study finds that Republicans have used their control of the redistricting process to increase their seat share in Congress by an average of 9.1 percent in the ensuing election. In contrast, Democrats did not see a significant overall increase in congressional seat share even when the party did control redistricting. Finally, we don’t need to explain which party gained from Bush v. Gore, or from a do-over by this Court.

Second, the Court is consistently unwilling to treat fairness or equality as manageable standards that might constrain incumbent office-holders. Conservative majorities of the Court, in other words, breezily claim to be merely calling balls and strikes, even as they disclaim any power to decide on the scope of the strike zone—except, of course, when it interferes with the liberties of powerful actors to shape the political process.

The Path Left Open

At this point, a dejected liberal may be tempted to toss this journal (or close their browser window) in hopeless disgust. But we draw a different conclusion: Radical, reactionary moves of the sort the Court has made demand new, equally radical thinking—a whole new imagination of political equality. Here’s where our proposal for multimember districting of Congress comes in.

We take a first step toward a more inclusive and fairer kind of democracy by questioning a taken-for-granted premise of American politics: That our politics must be framed as a battle between Democrats and Republicans—two parties with roughly equal support in the electorate, whose ability to gain unified control of government can hinge closely on how particular election and campaign rules benefit one party. Because certain legal shifts help Democrats on the margins, while others help Republicans in close cases, election litigation has become central to our politics. Were elections less close, or were the stakes of elections lower, what Rick Hasen calls the “Voting Wars,” in which each party turns to the federal courts seeking to find some edge or other that will eke out a victory, would not have escalated. And—notice—there would have been less pressure to staff the Court with “safe” (in partisan terms) hands.

A knife’s-edge winner-take-all partisan politics gives courts inordinate power to decide elections—and hence drives the politicization of the federal bench. As partisan divides subsume racial divides, statutes such as the Voting Rights Act lose their sense of common purpose. The quest for partisan advantage is taken as legitimating racial discrimination, undermining the victories of the Second Reconstruction.

But what if this binary, all-or-nothing kind of politics could be refashioned? What if it’s not constitutionally hardwired, but an accident of congressional design? Imagine what might happen if instead of having single-member districts (which tend to reinforce just two parties), representatives to Congress were elected in larger multimember districts. In a five-member district, for example, the top five finishers would go to Congress. Using a proportional voting rule, this would allow parties to earn representation with 20 percent of the vote. This would create space for more parties to compete, offering voters more choices, and making every vote matter equally. The larger the district size, the lower the threshold, and the more parties competing. Israel, with one single district for the entire country, offers an extreme version that creates too many parties. We favor something rather more moderate, like Ireland’s system, which might generate around five or six viable parties.

How would this change the possibilities for political equality without relying on courts?

The path forward involves multi-member districts for the House with ranked-choice voting, and an increase in House size to 700 members.

Start with gerrymandering. Put simply, proportional multimember districts make partisan gerrymandering irrelevant and useless as an instrument of defeating democratic choice. Decennial districting allows partisan legislatures in many states to maximize their party’s representation in both Congress and the state legislature by distributing their voters as efficiently as possible, while “packing” the opposing party’s voters in as few districts as possible.

This works because single-member districts make the geographical distribution of voters a supremely consequential matter. Any electoral margin greater than 51 percent in a district is effectively wasted votes. Especially in today’s highly polarized context, partisan voting is predictable enough that complex computer models can, in seconds, generate maps with the desired, reliable partisan outcomes. In addition, the single-member districting system tends to elicit just two parties simply because in a plurality election votes for third parties are “wasted.”

In a system of single-member districts, 60 percent of the vote in a district gets your party everything, 40 percent gets your party nothing. In multimember, proportional districts, 60 percent of the votes means 60 percent of the seats, and 40 percent of the vote means 40 percent of the seats. The quiddities of district line drawing lose their majority-making power. Shorn of the limits of single-member districts (which render third parties “spoilers” and votes for them “wasted”), many more political shades will bloom. Different parts of the public can band together to select a wider range of voices. With more parties, voting outcomes become less predictable—and so entrenchment gets harder, and equality closer within reach. Consider the recent elections in Germany, in which the center-left SPD surged back, winning the election with 26 percent of the vote. But the center-right CDU/CSU (Merkel’s party) got 24 percent of the vote, leaving it in a strong position to be part of a coalition government. However, with no party anywhere close to a majority, there was neither incentive nor opportunity to entrench power. Compare that to Hungary, where Viktor Orbán’s Fidesz party increased the share of lawmakers elected by single-member districts (and reduced the share elected by party list) to strengthen its advantage as the largest party, making Hungary’s voting system more majoritarian, and thus easier for a ruling party to entrench its power.

In a recent line of partisan gerrymandering cases, the lawyers and legal scholars arguing against partisan gerrymandering have hoped to persuade justices that districting should treat both parties fairly, and proposed a number of tests for fairness that track proportionality. The Roberts Court rejected the possibility of such a standard, and closed off the possibility of finding one in the future. Yet if reformers believe proportionality should be the standard (as we do), proportional multimember districts are a more direct path—and they don’t turn on the Court’s willingness to act.

Independent redistricting commissions, also popular among reformers, do not entirely solve the fairness problem either. Rather, they rely on independent experts to trade off among competing values. Partisan proportionality is one such value. But so are district compactness, keeping communities together, competitiveness, and minority representation. These values are frequently at odds when mapmakers are constrained by single-member districts. So even if the Court finds independent redistricting commissions constitutional, they are at best a partial fix.

This basic dynamic of corrupting binary competition goes beyond districting to other voting rules. In a zero-sum binary party system, a party in power has powerful incentives to tweak the law to make the other party’s voters count for less. The more polarized the party system, the stronger the push to do so.

If majority control in one election confers the power to change rules for the next election, then elections are no remedy. And if majority control in turn influences lifetime judicial appointments, courts are no long-term solution. And if the Court refuses to recognize any standards of fairness, a win in one election can insulate one party from popular will for years or decades, even if it becomes a political minority. Given today’s demographics, it happens to be Republicans who see their political advantage from restricting the franchise. But the boot can easily be on the other foot.

On one view, the behavior of the current Republican Party is puzzling. For the most part, Republicans continue to support unpopular policies, particularly on economic issues, and now on COVID: The broad public support for raising taxes on the wealthy is just one example. Despite losing the 2020 election, the party has doubled down on extremism, instead of pivoting to the center. Instead of being welcomed, the party’s would-be moderates are being purged.

All this is because, in a two-party system, Republicans, even under the control of extremists, can win elections simply by not being the Democrats. Because many citizens vote on identity and social status issues, not economic issues, Republicans have a strong incentive to keep a focus on (non-)issues like critical race theory, portraying Democrats as far more radical than they are.

In a two-party system, with just two issue bundles, cross-pressured voters must trade-off their economic interests and their cultural values. In contrast, given a multiparty system, more parties can offer different bundles allowing voters to vote both their economic interests and their social values. No party can get away with being merely the lesser of two evils.

Similarly, in a two-party system, the power of wealthy donors is significantly magnified because it is easier for a party to succeed with an unpopular economic agenda as long as it focuses on cultural issues. With multiple parties, however, it is much harder to accomplish this sleight-of-hand.

It’s also easier for wealthy donors to capture two parties than it would be for them to fully capture five or six parties. Because most money in politics goes to negative campaigning, and because negative campaigning works much less well in a party system where being the lesser of two evils is not enough to win, outside money matters less in a multiparty system: Volunteers, party organization, and positive, policy-first messaging matter more. Our proposal is, in other words, campaign finance reform by other means.

How We Do This

If the Court won’t brook political equality, we need to advance it by a law that is beyond judicial challenge. The path forward with this law, we think, involves a mandate for multi-member districts for the House with ranked-choice voting, and an increase in House size, to 700 members. Ideally, we would use five-to-seven-member districts, although this may not be possible in many states. For the Senate, we’d install ranked-choice voting to gain some of the same benefits for state-level elections.

The first and obvious objection, of course, is that incumbents aren’t about to change the system that got them elected in the first place. And yes—we agree that current legislators have a powerful interest in the status quo. And we concede that, historically, major electoral reforms are indeed rare. But they do sometimes happen. Indeed, multi-member districts were common until 1842, when Congress used its unquestioned constitutional power under Article I, Section 4, to make a single rule for districting. At that moment, Whigs were trying to stave off a midterm rout, and hoped a districting rule change would save them (it didn’t). Although Congress went for single districts then, the 1842 Act confirms Congress’s power to choose the form of districting. Indeed, we think there is no serious constitutional argument that Congress cannot do what we propose given the sheer breadth of congressional power over federal elections.

The history of American politics tends to consist of extended periods of stasis punctuated by bursts of rapid change. Major voting reforms hence happened during the Progressive Era (e.g., direct election of senators, binding public primaries, referendums, and initiatives) and the civil rights era (voting rights laws). All were viewed as improbable even a few years prior to enactment. Political systems work like other complex systems: Pressures build up over time, but the existing status quo usually can absorb the pressure—until it can’t. Then big change happens.

At a more mundane level, there is a super-majority coalition for electoral reform hiding in plain sight: the pro-democracy, anti-authoritarian coalition. This includes almost all Democrats, who face an inhospitable redistricting cycle and the increasing realization that any system of single-member districts is stacked against the party of the cities, because the urban party inevitably “wastes” too many votes in lopsided safe seats. It also reaches that shrinking portion of Republicans still struggling to carve out a role in a party hijacked by its (growing) extreme illiberal and authoritarian wing, which is a clear majority within the party (probably around 60 percent at this point), but also a clear minority nationally (at best, about a third of the electorate, though it would likely be less if there were other parties on the political right that could offer competing conservative identities).

In 2020, Republicans from this shrinking “governing wing” of the party could spin a plausible (if improbable) story of how once Trump lost, things would return to “normal.” At this point, that story is delusional. The only path back to power and relevance for them anytime in the future runs through proportional multimember districts, which would allow them to form their own, potentially pivotal, party.

For Democrats, the pitch is straightforward. The current system not only puts Democrats at an obvious disadvantage. It has allowed an authoritarian wing of the Republican Party to take over the entire party, putting the entire country at risk of minority rule.

Most individual Democrats and individual Republicans would still be re-elected to Congress under the new rules—especially if a shift to multimember districts happens alongside an increase in the House’s size, as it ideally should. They could run under different party labels, making a clearer pitch for their principles, and likely playing a more important role in a slightly smaller party.

Clearly, the illiberal, authoritarian wing of the Republican Party will oppose these reforms. Their disproportionate power comes from being a well-placed minority able to control a national party despite their national status as a minority.

But conflict over our proposal in itself should be clarifying. As democracy becomes the central dividing issue of our partisan politics, this creates an opportunity. It elevates an issue that we have taken for granted, and makes this new pro-liberal democracy coalition possible. The danger of this conflict is obvious. But only the danger can clarify the stakes enough to force the realignment necessary to pass reform.

For liberal democracy to triumph today, reformers need to shift the conversation. Any litigation that points out that the rules are unfair and asks the Courts for a remedy is going up against a Court majority fully convinced that it’s not their place to decide whether the rules are fair; they didn’t set the rules.

The Court has told us over and over: It won’t referee the electoral process. There’s only one way forward: Change the political process so the Court can’t play the referee—and the people themselves get their voice back.

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Lee Drutman is a senior fellow at New America and the author of the book Breaking the Two-Party Doom Loop: The Case for Multiparty Democracy in America.

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Aziz Huq teaches at the University of Chicago and is the author of the forthcoming book The Collapse of Constitutional Remedies.

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