Federalist 10 & 12: Factions, Democracy, and Voting Rights

Federalist 10 - definition of "faction"

A group (majority or minority) united by a common interest or passion adverse to the rights of others or to the permanent/aggregate interests of the community

Federalist 10 - why is faction unavoidable?

Causes of faction are "sown in the nature of man," most notably the unequal distribution of property; removing the causes would require destroying liberty or imposing total uniformity of opinion

Federalist 10 - Madison's solution to faction

Not to remove the causes of faction, but to control its effects

Federalist 10 - minority vs. majority factions

Minority factions can be checked by ordinary majority vote; majority factions are the real danger because no larger body exists within ordinary republican procedure to check them

Federalist 10 - pure democracy vs. republic

Pure democracy = citizens govern directly, no representation, only works for small societies. Republic = government by elected representation, can extend over large territory/population

Federalist 10 - why is a republic better at controlling faction?

(1) Representation filters/refines public opinion, and (2) a larger, more diverse republic makes it harder for any single faction to become a majority

Federalist 10 - modern relevance/blind spot

Minority blocking power (filibuster, judicial review, lobbying, concentrated-interest capture) is a modern institutional development Madison didn't fully anticipate; he also doesn't discuss the media

Burke, Speech to Electors of Bristol - core argument

Rejects the "instructed delegate" model; argues for the TRUSTEE model - government should be a body of reason, and a representative owes constituents his own judgment, not blind obedience to their instructions

Burke - why can't votes be decided by instruction?

Government and legislation are matters of reason and judgment, not inclination; votes shouldn't be decided before they're discussed/debated on the floor

Burke - "he is not member of Bristol, but..."

...he is a member of parliament - once elected, a representative represents the whole nation, not just his local district

Gilbert (Iolanthe) - third model of representation

Party-line voting: MPs "leave their brain outside" and vote as party leadership dictates - neither pure trustee (judgment) nor pure delegate (constituent instruction), but "party-as-principal"

Would Burke approve of Gilbert's party-discipline model?

No - his argument is that judgment/conscience shouldn't be sacrificed to ANY external will, including a party whip, not just constituent instructions

Pluralism (Laski, Figgis) - core idea

Society is not one unitary sovereign State vs. isolated individuals, but "a society of societies" - the state is only one form of association among many, power is spread between groups rather than concentrated in one

American "analytical pluralism" - key figures

Arthur Bentley (The Process of Government, 1908) and David Truman (The Governmental Process, 1950) - treated interest groups as the primary unit of political analysis

Common criticism of American pluralism

That it assumes power is naturally dispersed/self-correcting and ignores real inequalities in resources and power between groups (modern lobbying/interest groups not fully anticipated).

Kristol - two conceptions of democracy

(1) Managerial/procedural view: democracy = its rules and mechanical arrangements; if procedures are followed, the system is "working." (2) Older/substantive view: democracy is instrumental, meant to produce "the good life in the good society"

Kristol's critique of the procedural view

Calls it "idolatry" - mistaking the means (procedures) for the end (a good society); asks what the point of a perfectly functioning democratic machine is if no one of intelligence or spirit has reason to care about it

Napolitano, "What if Democracy is a Fraud" - core claim

American democracy functions as a mechanism of control, not genuine self-rule; voting creates an illusion of consent to the farming class while real power stays with elites; government relies on this

14th Amendment - relevance to voting

Equal Protection Clause; basis for Harper, Kramer, Reynolds, Lucas, Avery, Bartlett, etc.; Minor v. Happersett held it does NOT include a right to vote via Privileges or Immunities

15th Amendment

Prohibits denying/abridging the right to vote "on account of race, color, or previous condition of servitude" - basis for the VRA

24th Amendment

Bans poll taxes in FEDERAL elections only (Harper extended the poll-tax ban to state elections via Equal Protection, not the 24th Amendment)

Section 2 of the VRA

Prohibits any voting "standard, practice, or procedure" that results in denial/abridgment of the right to vote on account of race (as amended 1982, a RESULTS test, no intent required) - basis for Gingles/vote dilution litigation

Section 4(b) of the VRA

The "coverage formula" - determines which jurisdictions (are covered) must comply with Section 5 preclearance, based on historical voting data (1964/1968/1972) - struck down in Shelby County v. Holder

Section 5 of the VRA

Preclearance requirement - covered jurisdictions must get approval (from DOJ or DC federal court) before changing any voting practice, showing no discriminatory purpose OR effect

Difference between Section 2 and Section 5

Section 2 = after-the-fact, case-by-case litigation nationwide

Section 5 = preventive, requires approval in advance, but only in "covered" jurisdictions under Section 4(b)

Minor v. Happersett (1875) - facts

Virginia Minor was denied voter registration in Missouri because state law limited suffrage to men; she argued voting was a "privilege of citizenship" under the 14th Amendment

Minor v. Happersett - holding

Unanimous: citizenship does NOT confer a right to vote; the 14th Amendment's Privileges or Immunities Clause doesn't guarantee suffrage

Minor v. Happersett - key reasoning

Section 2 of the 14th Amendment itself only penalizes states for denying the vote to male inhabitants - proof the framers didn't intend a universal citizen right to vote

Minor v. Happersett - famous closing line

"the Constitution of the United States does not confer the right of suffrage upon any one"

Minor v. Happersett - significance

Cuts off the 14th Amendment as a suffrage-expansion tool, making a constitutional amendment (the 19th) the only path to women's suffrage

Harper v. Virginia State Bd. of Elections (1966) - facts

Virginia conditioned voting in state elections on payment of a poll tax (up to $1.50). Harper sued stating this was unconstitutional

Harper - holding

Held as unconstitutional because wealth/fee-paying is not connected to voting capacity; violates Equal Protection

Harper - reasoning (Douglas)

Voting is a fundamental right; wealth-based voter classifications get strict scrutiny; overruled Breedlove v. Suttles; grounded in Equal Protection, NOT the 24th Amendment

Harper - Black's dissent

Argued for strict adherence to precedent and believed changes to voting rights should come via the legislative/amendment process, not judicial re-interpretation; the law wasn't discriminatory on its face

Harper - Harlan's dissent (joined by Stewart)

Disputed that wealth classifications are inherently irrational; many states link property/tax status to voting in special-purpose elections

Harper - significance

Establishes that classifications burdening the fundamental right to vote trigger strict scrutiny under Equal Protection

Skafte v. Rorex (Colo. 1976) - facts

Peter Skafte, a resident alien in Boulder, CO, was denied registration to vote in school district elections because Colorado limited that to citizens

Skafte - holding

Constitutional; citizenship requirement upheld

Skafte - reasoning

Local school elections aren't covered by 14th Amendment Sec. 2 (which refers to citizens); citizenship here isn't a suspect class (politically vulnerable group); state may limit political participation to the "political community," excluding aliens

Skafte - significance

Declines to extend Harper/Kramer's strict-scrutiny "fundamental right" framework to citizenship-based exclusions

Kramer v. Union Free School District No. 15 (1969) - facts

NY law limited school-district voting to (1) property owners/lessees, or (2) parents/guardians of enrolled children; Kramer was neither and was denied the vote

Kramer - holding

Unconstitutional

Kramer - reasoning (Warren)

Restricts a fundamental right, so STRICT scrutiny applies; the law was both overinclusive (childless/non-taxpaying property owners could vote) and underinclusive (excluded interested residents like Kramer, and parents of private-school kids)

Kramer - Stewart's dissent (joined by Black, Harlan)

State could rationally conclude property owners/parents have a special stake; majority was wrongly second-guessing a reasonable legislative line; shouldn't have applied strict scrutiny

Kramer - significance

Extends Harper's strict scrutiny beyond wealth to any voter-qualification scheme that includes some residents and excludes others; introduces the "special purpose" question later resolved in Salyer/Ball v. James

Reynolds v. Sims (1964) - facts

Alabama's state legislative districts unchanged since 1900 despite population shifts; some Senate districts had ~41x the population of others

Reynolds - holding

"One person, one vote" applies to BOTH houses of a state legislature under Equal Protection

Reynolds - reasoning (Warren)

Legislators represent PEOPLE, not land or economic interests; rejected the "federal analogy" (states aren't sovereign units like states forming Congress); both chambers must be apportioned on population "as nearly as practicable"

Reynolds - Harlan's dissent

14th Amendment doesn't require equal-size districts; state apportionment is essentially free of constitutional limitation; the Court overreached

Reynolds - significance

The core "one person, one vote" holding for state legislatures; extends Baker v. Carr's justiciability and Gray v. Sanders' "one person, one vote" language into full apportionment doctrine

Lucas v. Forty-Fourth General Assembly of Colorado (1964) - facts

Colorado Senate apportioned using population PLUS other factors (geography, compactness, natural boundaries); scheme had been approved by Colorado voters in a 1962 referendum; 1/3 of the population could elect a majority of the Assembly

Lucas - holding

Unconstitutional; a majority popular vote cannot ratify an unconstitutional apportionment scheme

Lucas - reasoning (Warren)

"An individual's constitutional right to cast an equally weighted vote cannot be denied even by a majority of the state's electorate. One's right to life, liberty, and property cannot be put to a vote." The referendum wasn't as "clear cut" as it seemed (confusing/competing ballot measures)

Lucas - Stewart's dissent

Proposed a 2-part test instead of strict scrutiny: (1) rational basis, and (2) must not permit "systematic frustration of the will of the majority of the electorate"; legislatures represent interests, not "faceless numbers"; no direct denial of the vote occurred

Lucas - Clark's dissent

Would not interfere because the plan was approved by the people and addressed by the legislature; there's no "one man, one vote" violation if at least one house is fairly apportioned; Court exceeded its power

Lucas - significance

Popular ratification doesn't cure an unconstitutional apportionment; the right belongs to the individual voter, not subject to majority override

Avery v. Midland County (1968) - facts

Midland County, TX governed by 4 commissioners from unequal districts (one had 95% of the population) plus an at-large county judge; 3 districts of

Avery - holding

One-person-one-vote extends to LOCAL governments with GENERAL governmental powers

Avery - reasoning (White)

Commissioners Court had broad functions (roads, welfare, taxes, budgets) - not narrow/specialized; because it exercises general authority affecting everyone, its members must come from substantially equal-population districts

Avery - Harlan's dissent

Local governments have historically had more flexibility; majority overreached into local government structure without practical necessity, since localities are already controlled by apportioned state governments

Avery - Fortas's dissent

Local councils don't actually have the broad power the statutes suggest; effects on different citizens are dissimilar

Avery - significance

Extends Reynolds' rule from state legislatures to general-purpose local governments; sets up the general-purpose vs. special-purpose distinction developed in Salyer/Ball v. James

Salyer Land Co. v. Tulare Lake Basin Water Storage Dist. (1973) - facts

CA water district, 193,000 acres, only 77 residents; voting limited to landowners, votes apportioned by assessed land value (one company, Boswell, got 37,825 votes)

Salyer - holding

Constitutional; one-person-one-vote does NOT apply

Salyer - reasoning (Rehnquist)

District is a genuine "special purpose" government (water storage/flood control only), disproportionately affecting landowners as a class; doesn't provide general public services; rational to limit voting to those who bear costs/benefits

Salyer - Douglas's dissent (joined by Brennan, Marshall)

Even a special-purpose district can significantly affect non-landowners (flood control affects everyone); letting one corporation control the board undermines democratic accountability

Salyer - significance

Establishes the "special purpose district" exception to one-person-one-vote; general-purpose gov get strict population-equality review, special-purpose gov get deferential review

Ball v. James (1981) - facts

Salt River water/power district in Arizona; sold electricity to hundreds of thousands of Phoenix-area residents to subsidize water operations; voting limited to landowners, apportioned by acreage

Ball v. James - holding

Constitutional; one-person-one-vote still does not apply, even given the district's large scale and broad economic effect

Ball v. James - reasoning (Stewart)

Test is the entity's functions, not its size or the number of people affected; selling electricity to a broad population is just a commercial/consumer relationship, not general governmental authority over residents' lives

Ball v. James - significance

Extends Salyer's special-purpose exception even to a large, economically significant entity, so long as its core functions remain narrow/specialized

Rucho v. Common Cause (2019) - facts

Partisan gerrymanders challenged in NC (Republican map, admitted 10-3 partisan goal) and MD (Democratic map); challenged under Equal Protection, First Amendment, and Article I

Rucho - holding

Partisan gerrymandering claims are nonjusticiable political questions - federal courts cannot decide them

Rucho - reasoning (Roberts, 5-4)

Unlike racial gerrymandering (Shaw) or population-equality claims (Reynolds), there's no judicially manageable standard for "how much political advantage is too much"; oversight of election manner is left to state legislatures/Congress (Elections Clause)

Rucho - Kagan's dissent (joined by Ginsburg, Breyer, Sotomayor)

Lower courts had converged on workable tests (discriminatory intent + effect + lack of justification); extreme gerrymanders entrench power and undermine self-governance with no political remedy in practice

Rucho - significance

Closes federal-court door on partisan gerrymandering; racial gerrymandering & population-equality remain justiciable, partisan gerrymandering is left to the political process/state courts/state constitutions

Miller v. Cunningham (4th Cir. 2007) - facts

VA let an incumbent choose an open primary over the local party's objection; local GOP wanted a more exclusive, closed process and sued based on a violation of their associational rights

Miller v. Cunningham - holding

Unconstitutional as applied - incumbent can't override the party's chosen nomination method; did not decide the general constitutionality of open primaries or incumbent selection power

Miller v. Cunningham - reasoning

Forcing a party to open its nomination process against its own choice significantly burdens associational rights; state's incumbent-protection interest wasn't weighty enough

Miller v. Cunningham - Wilkinson's dissent from denial of en banc review

Thought VA's incumbent-selection statute was plainly unconstitutional because it facially discriminates in favor of existing officeholders; wanted the broader questions decided

Miller v. Cunningham - significance

Illustrates tension between party autonomy/associational rights and state regulation of primaries; distinct from voter-qualification/redistricting cases

Allen v. State Board of Elections (1969) - facts

MS/VA made voting changes (at-large conversions, independent-candidate rules, elective-to-appointive office changes) without Section 5 preclearance; states argued Sec. 5 only covered literacy-test-type rules

Allen - holding

Section 5 covers ANY change that alters voting practices "in even a minor way," including structural changes like at-large conversions

Allen - reasoning (Warren)

Sec. 5's language must be read expansively; vote dilution is as real a barrier as outright disenfranchisement; individual voters may privately sue to enforce Sec. 5 because it would be unrealistic to hold it to the DOJ to track down every change

Allen - Harlan's concurrence/dissent in part

Sec. 5 shouldn't add new analysis beyond Sec. 4 - if a jurisdiction/practice escapes Sec. 4 scrutiny it should escape Sec. 5 too; "permits the tail to wag the dog"; raises the question later addressed in Beer

Allen - significance

Establishes the all in broad scope of Section 5, reaching structural/procedural changes, not just voter-eligibility rules; sets up the question of what standard determines discriminatory effect (answered in Beer)

Beer v. United States (1976) - facts

New Orleans redrew council districts from 0 to 1 majority-Black district (out of 5); DOJ refused preclearance, arguing the plan failed to maximize minority voting strength

Beer - holding

Ruled in favor of Beer, passing the map. The standard is non-retrogression: a change is fine under Sec. 5 as long as minority voters aren't worse off than before, even if a better plan was possible

Beer - reasoning (Stewart)

Sec. 5 exists to prevent backsliding, not to require maximizing minority electoral opportunity; baseline for comparison is always the jurisdiction's existing plan

Beer - Marshall's dissent (joined by Brennan)

Standard is too tolerant - a jurisdiction could make a slight improvement and still avoid objection while dilution continues

Beer - significance

Establishes the retrogression test as the operative Sec. 5 preclearance standard for decades

Shelby County v. Holder (2013) - facts

Shelby County, AL challenged the Section 4(b) coverage formula (based on 1964/1968/1972 data) as outdated and unjustified

Shelby County - holding

Section 4(b)'s coverage formula is unconstitutional; Section 5 remains on the books but is inoperative with no valid formula

Shelby County - reasoning (Roberts, 5-4)

Preclearance is a departure from normal federalism/"equal sovereignty" of states and must be justified by current conditions, not 40+ year-old data; voting disparities had "clear and dramatic" improvement since 1965; Congress's 2006 reauthorization didn't update the formula itself

Shelby County - Thomas's concurrence

Agreed with majority but would also strike down Section 5 itself as unconstitutional

Shelby County - Ginsburg's dissent (joined by Breyer, Sotomayor, Kagan)

"Throwing out preclearance...when it has worked...is like throwing away your umbrella in a rainstorm because you are not getting wet"; Sec. 5 continued to block discriminatory changes; Congress's 98-0 2006 reauthorization deserved consideration

Shelby County - significance

Effectively dismantles Sec. 5 preclearance; shifts VRA enforcement almost entirely to Section 2 litigation (case-by-case, after the fact)

White v. Regester (1973) - facts

Texas used multi-member districts (elects two or more representatives from a single geographic area) in Dallas and Bexar (San Antonio) Counties; Black voters (Dallas) and Mexican-American voters (Bexar) challenged them as vote dilution

White - holding

Unconstitutional as applied to Dallas and Bexar Counties (population variance among districts was not the problem; the multi-member structure's discriminatory effect was)

White - reasoning (White, J.)

Multimember districts aren't inherently unconstitutional but become so under the "totality of the circumstances" - history of discrimination, unresponsive officials, exclusionary candidate slating, racial campaign appeals, depressed minority electoral success