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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Election Law 5-to-4

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July 6, 2004

The previous Weekly Comment compared two prominent cases decided by the same 5-to-4 majority: Bush v. Gore and the recent gerrymander case, Vieth v. Jubilerer. The Comment gave reasons why the dissent had the better view in both cases. But that is not the point this week. Instead, regardless of who was right or wrong, it is a serious concern that these major election law cases are decided by the narrowest of margins.

To be sure, we have come to expect 5-4 decisions in all kinds of cases: affirmative action, abortion, death penalty, and so on. But election law is different. It sets the ground rules for the resolution of political differences. Therefore, even if the nation is deeply divided on social issues, it needs to be united on the means by which it settles these social disputes.

Not all 5-4 decisions in election law cases are equally troubling. Some involve the Supreme Court's interpretation of the Voting Rights Act or other statutes enacted by Congress. If Congress does not like the interpretation, it can override the Court with new legislation. Assuming Congress reflects the will of the American people, the new enactment will be a democratic resolution of the dispute.

But matters are more complicated when the Court interprets the Constitution in a 5-4 decision, as occurred in both Bush v. Gore and Vieth. In these cases, Congress cannot override the Court's decision with a new enactment: it takes a constitutional amendment, which is extraordinarily difficult. Thus, if the Court is to settle disputes concerning the Constitution, we must hope that the Court gets these cases right, because we are likely stuck with its decisions.

There is good reason to rely on the Court in these constitutional cases: much of the Constitution is concerned with the procedures necessary to assure that the laws enacted by Congress are themselves the product of a fair and democratic political process. We cannot trust Congress to be the last word on the fairness of these procedures - not when the self-interest of its incumbent members is so directly at stake. The last two Weekly Comments (see archive) have invoked this point.

But when the Court itself is sharply split on whether the procedures for electing the members of Congress are undemocratic, we begin to lack confidence in the Court's ability to perform this democracy-protecting function. Perhaps the Court is over-intruding into politics, finding flaws where none exist. Perhaps we would be better off leaving Congress to police the procedures for its own elections, because even distrusting the self-interestedness of incumbents, we sense that it is easier for us - the people - to police Congress than the Court.

Therefore, for the Court to continue successfully in enforcing the essential elements of fair and democratic elections, additional 5-4 splits will not suffice. The Court is going to need to develop a wider consensus on these essential elements. Future Weekly Comments will attempt to explain how this wider consensus might develop.