Judicial Structure and Political Participation and the Electoral Process
Judicial Branch Fundamentals and Legal Specialization
The Judicial Branch under Article III:
Article III of the Constitution establishes the framework for the judicial branch, primarily mandating the existence of a Supreme Court.
The Constitution grants the power to establish lower courts "as we need them," though it provides limited specific definitions for the structure of the broader court system.
Legal Specialization and Education:
Law school education is comparable to medical school in that students do not specialize while earning their degrees; all students study a general, standardized curriculum.
Specialization occurs post-graduation during internships or subsequent practice. Examples of legal specializations include civil rights law, tax law, and criminal law (which includes both defense and prosecution).
Resources for Finding Legal Counsel:
The Texas State Bar Association serves as the primary interest group for attorneys and provides a search engine for citizens.
Individuals can search by the specific type of case (e.g., divorce, criminal rights) or for attorneys performing pro bono work.
Pro Bono Work: Attorneys are required to perform a certain amount of free legal work for citizens in the State of Texas annually. Top-tier attorneys often take on unique or interesting cases for little to no fee to meet these requirements.
The Adversarial Legal System and Standing
Adversarial Representation:
The American legal system is characterized as an adversarial system, often described metaphorically as a duel or a boxing match.
Naming Conventions: Case titles (e.g., Roe v. Wade, Plessy v. Ferguson, People v. Larry Flynt) list the parties separated by "v." or "versus."
Plaintiff/Complainant: The first name listed in the case title is the party who is aggrieved or has a complaint.
Respondent/Defendant: The second name identifies the party responding to the complaint in either civil or criminal matters.
The Concept of Standing:
To initiate a lawsuit, a claimant must have "standing," meaning they must have been personally damaged or harmed by the law or action in question.
The court system does not permit lawsuits based solely on a person's dislike of a law if that person has not been directly affected by it.
Hypothetical Example: If a law was passed prohibiting Hispanic women over the age of from voting, a person who does not fit that specific demographic (non-Hispanic or under the age of ) would lack standing to sue, even if they believed the law was unconstitutional. Only a person meeting that criteria who was actually denied the right to vote would have standing.
Judicial Decisions, Opining, and Precedent
Types of Court Opinions:
Courts must provide a written philosophy or reasoning behind their decisions rather than a simple "yes" or "no" vote.
Majority Opinion: This represents the decision of the case and explains the legal reasoning and philosophy supported by the majority of the judges.
Dissenting Opinion: This is issued by a judge or judges who disagree with the majority decision. A prominent example is John Marshall Harlan's dissent in Plessy v. Ferguson.
Concurring Opinion: This occurs when a judge agrees with the final outcome of the case but disagrees with the underlying philosophy or reasoning used by the majority to reach that outcome.
Precedent and Stare Decisis:
The term stare decisis translates to "let the decision stand."
Once a higher court, such as the Supreme Court, renders a decision and explains its philosophy, every lower court is mandated to follow that same philosophy and reasoning for all future cases with similar standing.
The court system moves slowly because judges are generally reluctant to overturn established precedent, as doing so can have political or professional repercussions.
Legal Rights, Sedition, and Citizenship
Ex Post Facto Laws:
The term ex post facto means "after the fact."
The government is prohibited from retroactively punishing individuals for actions that were legal at the time they were committed.
This is often relevant when new technologies emerge; if an immoral or harmful action occurs for which there is no existing law, the government cannot go back and punish the original perpetrator after a new law is passed.
Sedition and Armed Rebellion:
Sedition is defined as armed rebellion against the government.
Despite being founded through armed rebellion against the British, the United States declares sedition illegal.
The underlying philosophy is that the American system is sufficiently open and fluid to allow for the "redress of grievances" (following Locke's theories) without the need for violence.
Naturalization and Dual Citizenship:
Naturalization: The formal legal process through which a non-citizen becomes a citizen.
Dual Citizenship: This status depends on specific treaties and agreements between nations. Some countries allow it, while others do not. For example, German citizens were previously not allowed dual citizenship with the United States, but rules have since changed to permit it.
Categories of Political Participation
Non-Participation:
Choosing not to vote, sign petitions, or attend rallies is considered a form of political participation.
Reasons for Non-participation:
Contentment: Some citizens do not participate because they are happy with the status quo.
Disaffection: Some citizens feel the system is indifferent to them or that all candidates are equally undesirable. This can be problematic if the people in power misunderstand why certain demographics are not participating.
Mechanisms to increase participation include weekend voting (Saturday/Sunday), online voting, or systems like Germany's, where citizens may be fined (e.g., ) for not voting.
Conventional Participation:
Activities that are culturally normal and accepted, such as voting or singing the national anthem.
Supportive Participation: Conventional actions that signal support for the existing system, such as voting for incumbents.
Influencing Participation: Conventional actions aimed at changing the system from within, such as signing petitions or voting for challengers.
Unconventional Participation:
Activities that are unusual or rare, such as marching in protests.
Subsets of Unconventional Participation:
Legal: Protests and marches.
Illegal (Civil Disobedience): Purposely breaking a law with the intent to be arrested. This is typically used by minority groups or those without the money/power to influence the majority. The goal is to obtain "standing" to challenge the law in court. Historical examples include Plessy staying in a "whites only" train car and Rosa Parks refusing to move on a bus.
Illegal (General): Criminal acts committed for political reasons where the goal is to avoid arrest. An example from the Vietnam War era involved a group blowing up a campus chemistry lab to stop the production of napalm (a chemical bomb that burns skin). Unlike civil disobedience, these actors do not want to be arrested and may end up on the FBI’s Most Wanted list.
Voting Systems, Ballot Structures, and Candidate Selection
Ticket Types:
Straight Ticket Voting: Selecting all candidates from a single party with one button. This is being phased out in Texas due to concerns that it is easier for computers to be hacked if only one page needs to be compromised.
Split Ticket Voting: Choosing candidates from different parties for different offices. This requires selecting each candidate individually on the machine.
Ballot Layouts:
Party Column Ballot: Used in Texas. Candidates are listed with the party currently holding the governorship in the leftmost column. This favors the party in power because voters often select the first name they see.
Office Block Ballot: Groups candidates by the office they are seeking and lists incumbents first. This favors the incumbent individual rather than a specific party.
Voter Behavior:
Retrospective Voters: Base their choices on a candidate’s past behavior and record (e.g., John McCain's long history in government).
Prospective Voters: Base their choices on what a candidate promises to do in the future (e.g., Barack Obama during his first presidential run, as he had a shorter legislative record).
Seat Classifications:
Contested Seat: A close election with two viable candidates.
Open Seat: An election where no incumbent is running.
Safe Seat: An election where the incumbent is virtually guaranteed to win (e.g., Ronald Reagan's re-election, or the "Solid South" period).
Socio-Political Alignment and Demographic Voting Blocks
The "Solid South":
Following the Civil War until the , the South was "solidly" Democratic. In Texas, no Republicans were elected to state office for nearly years until John Tower broke the trend.
"Yellow Dog Democrat": A term referring to voters who would rather vote for a dog than a Republican.
Realignment vs. Dealignment:
Realignment: When an entire social group shifts its party alignment. African Americans shifted from the Republican party (the party of Lincoln) to the Democratic party during the Civil Rights era of the .
Dealignment: When individuals abandon party affiliation altogether to become "Independent." This usually leads to more split-ticket voting.
Voting Blocks and Power:
Groups that vote as a predictable block (like African Americans for the Democratic party) may lose leverage because the opposing party ignores them and their own party takes them for granted.
Groups that "straddle the fence" (like the Hispanic community) often hold more power because both parties must compete to "lure" them with policy promises.
Types of Primaries and Elections
The Primary System:
Primary elections determine who will represent a party in the general election; they do not decide who gets the job.
Open Primaries: Any voter can participate in any party's primary. This can lead to "raiding," where members of one party vote for the weakest candidate in the opposing party's primary.
Closed Primaries: Voters must declare a party. In Texas, voting in a primary results in a registration stamp that theoretically bars voting in another party's primary for a set period (usually years).
Blanket Primaries: Voters can vote in both Democratic and Republican primaries simultaneously. These are rare and often lead to "double raiding."
White Primaries: Historically used in the South to disenfranchise minorities by making party membership (and thus primary voting) exclusive to whites. These were ruled unconstitutional in Smith v. Allwright.
Other Election Types:
General Election: The final election to decide who holds the office.
Runoff Election: A second primary held if no candidate wins a clear majority. The top vote-getters compete to determine a final party candidate.
Special Election: Held for unique or specific circumstances outside the regular schedule.
Voter Turnout: Trends in the U.S. are low, with presidential elections seeing roughly to turnout, off-year elections even less, and local elections sometimes falling below .
Redistricting, the Census, and Gerrymandering
The Census and Power Shifts:
The census is conducted every years to count the population and redraw lines of power. Factors like population decline in New York and growth in Texas result in the reassignment of Congressional seats.
Texas Legislative Redistricting Board:
In Texas, map lines are drawn by a board consisting of the Governor, Lieutenant Governor, Speaker of the House, Leader of the Senate, and the Secretary of State.
If the party in power redraws lines to favor their own candidates and the state legislature approves, it is legal.
Gerrymandering Definitions:
Gerrymandering: The illegal practice of drawing district lines to favor or disadvantage a protected class (race, ethnicity, gender).
Packing: Consolidating all members of a minority group into a single district so they only receive one seat of power.
Splintering: Breaking up a concentrated minority population into multiple districts so they are the minority in every district and have no dominant power.