You Don’t Have to be a Structuralist to Hate the Supreme Court’s Dignitary Harm Election Law Cases
Richard L. Hasen, You Don’t Have to be a Structuralist to Hate the Supreme Court’s Dignitary Harm Election Law Cases, 64 U. Miami L. Rev. 465 (2010).
This brief essay responds to an article by Professor James A. Gardner, The Dignity of Voters - A Dissent, appearing in a symposium in the University of Miami Law Review. Gardner offers a sustained critique of a line of Supreme Court election law cases recognizing “dignitary rights” of voters, including Shaw v. Reno, recognizing the “unconstitutional racial gerrymander,” Bush v. Gore, recognizing the right to have one’s vote counted in a recount according to uniform voting procedures; and Purcell v. Gonzales, a voter identification case in which the Court recognized a right of voters not to have their votes “canceled out” by voter fraud (or their “feelings” hurt by such fraud).
I make two points. First, Gardner mistakenly explains the dignitary rights cases as the Supreme Court embracing the “individual” rights side in the “rights-structure” debate among election law scholars. Instead, these developments show the Court embracing a misguided structural approach to election law cases (albeit clothed in the language of rights). Shaw reined in what the Court majority viewed as an out-of-control Justice Department overly interfering with state prerogatives in redistricting; Bush reined in what the Court majority viewed as an out-of-control Florida Supreme Court overly interfering with administrative recount procedures in the highly-charged context of a presidential election recount. Purcell reined in civil rights plaintiffs interfering with state administrative prerogatives in setting forth the rules for conducting elections. In each of these cases, voter “rights” are merely a stand-in for structural concerns of the Court.
Second, using the individual rights approach, these cases were incorrectly decided. Under the individual rights approach, the Court should protect only “core” equality rights that affect the real allocation of political power among political equals in a democracy. In Shaw, the Court incorrectly protected voter rights in the districting process that had no potential to affect political power relationships. In Bush and Purcell, the Court failed to recognize rights on both sides of the case, and that the rights of voters on what turned out to be the losing side easily trumped rights on the winning side of the case. Thus, Gardner’s conclusion that these cases were wrongly decided is absolutely correct, even using an individual rights framework to reach this result. The Court should continue to focus on rights in its election law jurisprudence, but not on inchoate “dignitary” rights that fail to affect the allocation of political power.