How the Supreme Court Saved the Right to Vote
By Jessica A. LevinsonJune 12, 2014
On Democracy’s Doorstep by J. Douglas Smith
WE ARE NOW CELEBRATING the 50th anniversary of the decisions detailed in J. Douglas Smith’s On Democracy’s Doorstep. This book tells the story of how the cases establishing the principle of “one person, one vote” came to the Supreme Court, what the Supreme Court did and why, and the reaction to the Court’s decisions. Half a century has wrought massive changes to those decisions, and the Court described in Smith’s book feels like it exists in a universe quite different from the one inhabited by our current Court.
Many of us bemoan the Supreme Court’s recent decisions in a variety of areas, including election law. We see the Court as invalidating laws designed to protect the integrity of the electoral processes. We read the Court’s recent decisions as misunderstanding and ignoring the rights of individuals, especially those individuals’ voting rights.
At its core, On Democracy’s Doorstep is an uplifting story about the triumph of equal representation over the many entrenched interests seeking to control the political process for their own gain. Now, however, it seems those entrenched interests are winning, and the import of the decisions Smith details is slipping away.
Before discussing the book, let me take a moment to recount how far we have slipped. The Court has recently eroded the rights of individuals to meaningfully participate in elections in two areas — campaign finance and voting rights. This clearly began in 2010, with a little case called Citizens United v. Federal Election Commission (FEC), when the Court struck down a law that limited the ability of corporations and labor unions to make so-called “independent expenditures” in support of or in opposition to candidates. The Court ruled that corporations must be treated the same as living, breathing individuals, and that independent expenditures cannot corrupt candidates. Many commentators, myself included, thought the ruling rested on a faulty legal ground. As a result, untold sums have been pumped into our electoral process, and the voices of average citizens have been largely drowned out.
Following its decision in Citizens United, in April of 2014 the Court next invalidated aggregate contribution limits in McCutcheon v. FEC. Those are limits on the total amount that donors and political committees can contribute to candidates. This ruling, like Citizens United, will allow a small segment of the population to spend outsized sums of money in our electoral campaigns. This harms the voters, who are deprived of a meaningful voice in campaigns in which money buys access and influence for a few.
But it is not just in the campaign finance context where the Supreme Court has struck down laws intended to protect voters. In 2013, the Court invalidated Section 4 of the Voting Rights Act in Shelby County v. Holder. Section 4 provided the formula to determine which jurisdictions were “covered” under Section 5 of the Act. Covered jurisdictions had to check in with the federal government prior to making any changes to voting laws because they had a demonstrated history of problematic behavior with respect to restrictions on voting. But now, freed of this requirement, previously covered jurisdictions have implemented new and restrictive voting laws, such as voter identification laws. They have also eliminated or scaled back on laws making it easier to exercise the right to vote, such as same-day registration and early voting.
The Court’s recent jurisprudence strikes at precisely the issues which pervade On Democracy’s Doorstep — the ability of all citizens to have an equal voice in our elections and the power exerted by those who wish to obtain and maintain uneven political power.
Citizens United, McCutcheon,and Shelby were all five-to-four decisions. That does not indicate that they have any less precedential weight than unanimous decisions. Rather, it demonstrates, quite starkly, the importance of the composition of the Supreme Court. And indeed, this is one of the lessons of On Democracy’s Doorstep.
On Democracy’s Doorstep tells the almost-ignored story of how the Court brought forth a revolution in our American political system by establishing the principle of “one person, one vote.” Smith is an accessible and knowledgeable storyteller, and this is not his first book dealing with issues of voting rights. He is also the author of Managing White Supremacy: Race, Politics, and Citizenship in Jim Crow Virginia.
Smith discusses the importance of, and tension between, attorneys, judges, special interests, and activists. This is a battle we continue to wage. But the big difference between today’s Court and the Court described in On Democracy’s Doorstep is that the old Court successfully rejected the arguments of entrenched interests, such as corporations, and instead strengthened the principle of “one person, one vote.” Now the opposite is happening. It increasingly feels that we’re rewinding much of the progress detailed in On Democracy’s Doorstep.
The book opens with a story about Chief Justice Earl Warren on the eve of his retirement in 1968. The chief surprises a group of journalists by identifying Baker v. Carr and Reynolds v. Sims, the two cases establishing the principle of “one person, one vote,” as his most important accomplishments. As Smith discusses in the nearly 400 pages that follow, Warren had it right.
The first portion of the book, essentially the first three chapters, is devoted to identifying the problem of malapportionment, which is the creation of legislative districts of unequal size. Such districts give an outsized voice to certain populations, most often white, rural voters, and subvert the power of others, such as minorities and urban voters.
Smith begins by explaining to the reader why America has struggled with the problem of equal representation since its founding. Representation is, after all, a struggle for power, both political and economic. Smith includes a number of useful examples to explain howunequal many legislative districts were. For instance, in 1960, the more than 6 million residents of Los Angeles County totaled almost 40 percent of the state’s total population but elected only one state senator. Three thinly populated counties with less than 15,000 inhabitants also each elected one state senator.
But Smith details not just the fact that many districts were of significantly unequal population, but also why that matters. Smith explains that malapportionment particularly affected the ability of minorities, such as working-class Catholics, Jews, and African Americans, to increase funding for health and welfare programs, improve workplace protections and conditions, and press for civil rights protections.
Smith also devotes a chapter to California, and uses the state as a case study in the difficulty that states had in eradicating systems of malapportionment. But California also looms large over On Democracy’s Doorstep’s overall narrative because it is the home of both Chief Justice Earl Warren (who was of course the former governor of the state) and the political consulting firm of Whitaker and Baxter, who would later lead the charge to dismantle the chief’s voting rights decisions. The end of this first segment of the book is largely devoted to the important advocacy work done by the League of Women voters in their push for reapportionment.
The middle of On Democracy’s Doorstep focuses, in large part, on the inner workings of the Supreme Court. Smith provides a fascinating, behind-the-scenes look at how the Supreme Court came to decide the cases that came to shape our political system. The Court began in 1962 with Baker v. Carr.There the Court entered the so-called “political thicket” and determined that it had the power to determine whether redistricting plans violated the 14th Amendment’s guarantee of Equal Protection. Prior to Baker, the Court had ruled that it lacked the authority to decide such political matters. Two years later, in Wesberry v. Sanders,the Court determined that Congressional districts must contain the same number of people. Later that year, the Court extended that ruling in Reynolds v. Sims.There the Court found that under the 14th Amendment the houses in bicameral legislatures must be apportioned according to the principle of “one person, one vote.” The force of that ruling was solidified in another case handed down that day, Lucas v. Forty-Fourth General Assembly of Colorado.In Lucas the Court concluded that voters have a right to equal representation in both houses regardless of whether an apportionment system was approved by a popular vote.
In these chapters Smith provides a captivating portrait of the players behind these groundbreaking decisions. Smith profiles activists, journalists, legislators, private attorneys, government attorneys (including the attorney general and the solicitor general), law clerks, lower court judges, and finally the justices of the Court. Smith spills much ink discussing the strategies of those who brought the voting rights cases to the Court. Smith explains how resources for such legal efforts were marshaled, and which plaintiffs, legal themes, and theories were employed.
Smith also brings us inside the courtroom for the oral arguments and subsequent conferences, deliberations, and opinions drafting by the justices. This portion of the book will be particularly intriguing, even if not groundbreaking, for scholars of the Court. Smith’s behind-the-scenes portrayal of the Supreme Court is at times reminiscent of Bob Woodward and Scott Armstrong’s classic book, The Brethren, which provides a behind-the-scenes look at the Supreme Court during the beginning of Warren Burger’s tenure as Chief Justice. And even though the reader ultimately knows the outcome of the major plot points, this middle section of the book, in particular, is full of maneuvering and suspense.
The last portion of the book is concerned with the fallout from the Court’s decisions and the nearly successful push to dismantle those rulings. Smith summarizes some of the press’s reaction to the rulings in a way that feels reminiscent of the divergent coverage of the Court’s more recent voting rights cases.
But members of the press were not the only ones who were divided. For a moment, at the end of the book, it seems that the victory of equal representation may not be long lasting. There was, unsurprisingly, profound political opposition to the Court’s rulings. Some legislators attempted to delay compliance with the rulings. Others sought to strip the federal courts of the power over reapportionment disputes. Smith details how legislators and political consultants coalesced around, and built support for, the idea of a constitutional convention, the first since the 1780s. Those efforts were, of course, ultimately unsuccessful. Readers learn a great deal about how to mount a large-scale legislative attack on the Supreme Court’s decisions.
The cases detailed in On Democracy’s Doorstep dramatically altered the fabric of our society on almost every conceivable level. Our social, political, and economic systems are different because of the now-ingrained idea that each person who is eligible to vote is entitled to cast a vote of the same weight as anyone else who is similarly eligible. As On Democracy’s Doorstep explains, the Court’s trajectory did not always bend toward its current preference for less regulation in the election law context. The Court described in Smith’s book recognizes the legal and political significance, not to mention fragility, of the right to vote. The battle over the right to vote is fundamentally a battle over who we are and who we want to be as a country.
On Democracy’s Doorstep is a meticulously researched account,but it is not a textbook filled with judicial opinions. Rather, it is a story about the import of these cases There is likely too much detail here for the casual reader. There are dozens of pages of endnotes to pore over, for example. However, the book is an entertaining and useful resource for lawyers and nonlawyers alike. (There is not too much legalese.) It is most likely to appeal to lovers of the Court, American politics or history, election law, and voting rights. For those readers, there is much to enjoy in On Democracy’s Doorstep’s detailed accounting of the creation of the principle of “one person, one vote.”
Jessica A. Levinson is an associate clinical professor at Loyola Law School, Los Angeles, where she teaches election law, money, politics and the Supreme Court, and the campaign finance seminar. She is also Vice President of the Los Angeles Ethics Commission.
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