The Supreme Court and Voting Rights: A More Complete Exit Strategy

To the great relief of many observers, the Supreme Court has recently become more deferential to state legislatures with respect to their political redistricting plans. The only problem is that the Court appears to be in no mood to revisit some of the cases that got it entangled in the political thicket to begin with - the ones rigorously applying the one person, one vote standard. Indeed, it recently issued a summary affirmance of a lower court decision that tightened up its already exacting standards regarding population equality. As a result, the Court\u27s partial retreat from politics is doing more harm than good, as it is abdicating its responsibility to protect minority voters but leaving certain constitutional rules intact that limit the ability of Congress or the states to do so. For that and other reasons, the Court should make its exit from politics more complete by relaxing its application of the one person, one vote requirement in many situations

Refocusing on Race

This paper, prepared for a symposium on voting rights in the George Washington Law Review, is a call to refocus attention on the role of race in politics. In recent years, many voting rights scholars have shifted their attention away from the plight of minority voters. Indeed, the issue of race came up in this symposium only obliquely, if at all, as part of a discussion of other issues. And this is more than a bit unusual, for race has been a driving force in the development of much of the law of democracy over the last several decades. Of course, there is more to politics than race. The 2000 presidential election fiasco, coupled with the passage of the Help America Vote Act and predictions (mostly correct, it turns out) of a close presidential election in 2004, made us focus on ballot access and integrity in a way that we haven\u27t since the passage of the Voting Rights Act. Significant new legislation and Supreme Court opinions in the areas of campaign finance and partisan gerrymandering in the last couple of years have made those issues especially relevant. And when it comes to the law of politics, we all recognize the need to strike while the iron is hot - and ballot access, campaign finance, and partisan gerrymandering are certainly the hot issues of the last election. But the relative inattention to the role of race in politics may reflect more than the temporary rise of other issues. It may also reflect a broader belief that, when it comes to race, we\u27ve done about all we can, especially when it comes to the larger, structural issues. The thinking goes something like this. The problem of minority access to the polls was largely resolved in the 1960s through enforcement of the Voting Rights Act. The problem of minority vote dilution has proven more difficult, but the creation of majority-minority (or, more recently, coalition) districts under sections 2 and 5 of the Voting Rights Act has effectively remedied that issue. In any case, that remedy appears to have reached its limit, both because there are few places left to draw additional majority-minority districts and because the creation and maintenance of such districts may actually reduce minority influence in political affairs. The belief that problems of minority political participation have been solved, or perhaps more accurately, that there is not that much more we can do about them within existing legal structures, comes at a critical time. Several portions of the Voting Rights Act, including section 5, come up for reauthorization in 2007. Allowing section 5 to expire without replacing it with something comparable will eliminate one of the most flexible legal tools for countering the constantly evolving methods of effectively reducing meaningful minority political participation. This paper, then, is a plea to refocus attention on the issue of race. Part of this project must involve making sure we continue to set new goals as the old ones are achieved. Another part involves making sure that we recognize that some of the constraints that prevent minority groups from fully realizing their potential in a democratic society are of our own, or the Supreme Court\u27s, making, and that what we have created, we can undo (or at least question). The paper, then, is a call to remain vigilant in policing the many intentional and unintentional ways in which the political rights of racial minorities may be infringed upon. And, more generally, it is an argument to think more broadly about the possibilities that may exist to improve minority participation

Resolving the Dilemma of Minority Representation

This article proposes that recent work in philosophy on the issue of interpersonal utility comparisons may be used to help resolve a significant problem in minority representation. The creation of majority-minority districts has had the unintended consequence of forcing minority voting rights advocates to choose between increasing the number of minority officeholders and increasing the number of Democrats. This dilemma is, in part, due to the strict application of the one person, one vote standard. But work on the issue of interpersonal utility comparisons tells us that the one person, one vote standard is not the objective standard it purports to be; instead, it involves fairly straightforward normative judgments. The article, therefore, argues for relaxing the strict application of the one person, one vote standard in the context of minority vote dilution claims, which would allow us to numerically concentrate minority voting power through the creation of smaller majority-minority districts

The False Promise of One Person, One Vote

It has now been four decades since the Supreme Court stepped into the political thicket with its groundbreaking series of reapportionment cases. Those cases rather quickly brought about radical changes in the structure of our national, state, and local governments and, in so doing, reshaped the political landscape of the country in many, mostly beneficial, ways. The reapportionment cases also signaled the beginning of a revolution in the way we view the rights associated with meaningful participation in a democratic society, a revolution that continues to this day. We now enjoy a right to vote that is much more comprehensive - both in terms of who has the right to exercise the franchise and what that right entails - than at any other time in our history. Despite this record of success, one of the most important and least controversial aspects of the right to vote - the one person, one vote principle - has never been adequately theorized. Academics, politicians, and the general public have, instead, taken it as an article of democratic faith. We are utterly confident that the one person, one vote principle rests on firm democratic foundations, that it is, in some sense, objective, and that it is a judicially manageable way of parsing out political power. The thesis of this Article is that this confidence is wholly misplaced

The Limits of Social Choice Theory: A Defense of the Voting Rights Act

This Article presents a defense to the challenge that social choice theory presents to voting rights. Arrows theorem, the crown jewel of social choice theory, holds that no voting procedure that meets some minimal conditions of democratic fairness can ensure transitive, meaningful outcomes. The theorem provides a powerful argument against the ability of any court to devise objective vote dilution standards. Because such standards are now a necessary element of claims under section 2 of the Voting Rights Act, Arrows theorem may be viewed as a fundamental threat to the viability of all such claims. The defense of voting rights presented in this Article does not question the merits of the theorem (a difficult task indeed), but instead uses the theorem, some recent (and not-so-recent) work in social choice theory, and existing voting rights law to answer the fundamental challenge that Arrows theorem poses to voting rights jurisprudence

The False Promise of One Person, One Vote

This article challenges the theoretical foundations of the right to cast an equally weighted vote. That right, most elegantly captured in the phrase one person, one vote, was at the heart of the early reapportionment cases and has since become one of the hallmarks of democracy. One of the principal reasons for the success of the one person, one vote standard is that it appears to be a neutral or objective way of parsing out political power. Drawing on recent work in philosophy and economics on the nature of interpersonal utility comparisons, I demonstrate the normative character of the standard. I conclude that this well-settled legal principal is based upon a false promise of objectivity, one that has now come back to haunt us by divorcing the law from the reality of preference aggregation and preventing the development of a more complete theory of voting rights

The Uncorporation and the Unraveling of \u27Nexus of Contracts\u27 Theory

This is a review of The Rise of the Uncorporation, by Larry E. Ribstein (Oxford University Press 2010). The Rise of the Uncorporation gives a compelling account of the increasing reliance on business forms other than the corporation. These new organizational forms - such as limited liability companies, limited liability partnerships, partnerships, and the like - give businesses greater freedom to structure themselves in ways that best facilitate their particular needs. And this, according to Ribstein, is an unqualified good, for it allows firms to operate more efficiently than if they were forced to assume an intensely regulated form. Like most stories, though, this one has a heavy, and here it is the corporation. The corporate form, which dominated the landscape for much of the twentieth century, is contrasted with the uncorporation and presented as the product of forced, not free, choice. This is, perhaps, the most surprising (and welcome) aspect of the book, for the corporation has long been theorized as a product of contractual freedom and championed for its resulting efficiency. Now that we (with Ribstein’s help) have dispensed with the myth that the corporation is merely a nexus of contracts, we can focus our attention on the significant role that government plays in all forms of organizational form, corporate and otherwise

The Bizarre Law & Economics of \u27Business Roundtable v. SEC\u27

Corporations are legal entities designed to foster certain kinds of collective economic activity. The decisionmaking power within a corporation ultimately rests with a board of directors elected by shareholders. Shareholders, however, do not use anything like a conventional ballot in these elections; instead, they fill out a “proxy ballot,” delivered to them by the incumbent board. This proxy ballot lists only the incumbent board’s chosen nominees, very often the board members themselves. If a shareholder wants to run for director or propose another nominee for the board, she needs to provide all other shareholders with a separate proxy ballot — an expensive and complicated proposition. For over seventy years, the Securities & Exchange Commission has considered various means of wresting exclusive control of the proxy ballot from corporate boards. In 2010, pursuant to direct Congressional authorization, the agency finally succeeded, enacting Rule 14a-11. The rule should have given shareholders access to a corporation\u27s proxy ballot for director nominations, thereby reducing the costs for shareholders and diminishing the longstanding barriers to a more robust corporate democracy. But within a year of the rule’s enactment, and to the surprise of almost every observer, the D.C. Circuit struck down the rule in Business Roundtable v. SEC as an arbitrary and capricious exercise of agency power. The court’s ruling relies upon perceived failings in the Commission’s economic analysis. But it is the court\u27s economic analysis that is open to scrutiny and criticism. Over the past few decades, corporate law and economics scholarship has become adept at containing and eliding certain contradictions of its basic principles. The reasoning in Business Roundtable represents a facile reflection of these principles — a reflection that thereby magnifies the underlying flaws. As a result, the D.C. Circuit’s decision to strike down Rule 14a-11 rests on a false version of shareholder democracy, one that undermines the very market principles that it purports to advance. It ignores the benefits of true shareholder democracy and focuses instead on costs that are routine for any functioning electoral system. By drawing distorted conclusions from certain tropes of corporate law and economics scholarship, the court essentially codified a strange new set of requirements for administrative agencies like the Commission. We fear that, unless it is corrected over time, this bad law and economics will cow regulatory agencies, particularly the SEC, into adhering to a crabbed and inchoate vision of corporate governance. And we hope that substantive criticism of the opinion, such as that represented in this article, will demonstrate that the court’s errors need not be replicated by others

The Uncorporation and the Unraveling of \u27Nexus of Contracts\u27 Theory

This is a review of The Rise of the Uncorporation, by Larry E. Ribstein (Oxford University Press 2010). The Rise of the Uncorporation gives a compelling account of the increasing reliance on business forms other than the corporation. These new organizational forms - such as limited liability companies, limited liability partnerships, partnerships, and the like - give businesses greater freedom to structure themselves in ways that best facilitate their particular needs. And this, according to Ribstein, is an unqualified good, for it allows firms to operate more efficiently than if they were forced to assume an intensely regulated form. Like most stories, though, this one has a heavy, and here it is the corporation. The corporate form, which dominated the landscape for much of the twentieth century, is contrasted with the uncorporation and presented as the product of forced, not free, choice. This is, perhaps, the most surprising (and welcome) aspect of the book, for the corporation has long been theorized as a product of contractual freedom and championed for its resulting efficiency. Now that we (with Ribstein’s help) have dispensed with the myth that the corporation is merely a nexus of contracts, we can focus our attention on the significant role that government plays in all forms of organizational form, corporate and otherwise