The courts, in interpreting the Constitution, should not override the will of the majority in the name of values that supposedly transcend majority rule. Instead, judges should try to make representative democracy more democratic. They should try to make democracy work according to its own underlying principles. That is the simple, powerful thesis of Democracy and Distrust: the courts should be in the business of reinforcing and perfecting, not second-guessing, the work of representative government. (2) Such is the way David Strauss, at about the time John Hart Ely's Democracy and Distrust turned 25, distilled its essence. And Strauss' is, I think, a very fair distillation. As the first chapter of Ely's landmark book makes clear, the commitment to constitutionalism that Americans have shared all the way back to founding is grounded on popular acceptance of the "legitimacy of the majority's verdict." (3) That "government by the majority" (4) has not always or consistently been reflected in all the Constitution's provisions--to say nothing of the caselaw the Supreme Court has developed--ought not to obscure the very majoritarian essence of the document itself. (5)
As Ely's work, having turned forty, is now fully middle-aged, examining how American constitutionalism has been living up to Ely's prescriptions seems a worthwhile task. In some respects, Ely, were he still alive, would certainly be disappointed. The slew of state laws recently passed after the election of 2020 in several Republican states making exercise of the franchise more difficult (6) certainly represents a step in the opposite direction from the one Ely lays out. In other respects, Ely might be heartened: in theory at least, he would likely embrace the National Popular Vote interstate compact plan that, if implemented sensibly, could move the country away from the unfortunate situation, that Ely himself points out the Constitution permits, in which "a President [is] elected without a popular majority or plurality nationwide." (7)
What about the work of the Court--a major if not the dominant theme in Democracy and Distrust? Ely believed that courts could and should make democracy run better. And here too recent cases present a bit of a mixed bag. I expect Ely would not be thrilled with the 2013 ruling in Shelby County v. Holder, (8) given its essential preference for preserving an (unenumerated) equality among states over eliminating barriers to voting, but he might embrace last year's rulings by the Roberts Court in the Chiafalo v. Washington (9) and Colorado Department of State v. Baca (10) pairing of cases, which enable states to curtail the incidence and undemocratic effects of so-called "faithless" electors.
What about aggressive partisan gerrymandering? Here too, the Elyan scorecard might be mixed. Certainly the Court's upholding (albeit over the dissent of Chief Justice Roberts and other conservatives) of the transfer of districting power from the elected legislature to an independent citizen redistricting commission in Arizona Legislature v. Arizona Independent Redistricting Commission (AIRC) (11) in 2015, effected by the state's direct-democracy initiative device, is something Ely could have celebrated. But what of Rucho v. Common Cause (12) four years later, and the question it addressed of whether the Court and the U.S. Constitution themselves have a role to play, not just in permitting creative political workarounds for partisan gerrymandering but in regulating and reining in the practice directly? In Rucho, an emphatic but closely divided (5-4) Court, led by Chief Justice Roberts, proclaimed that claims that partisan gerrymandering tactics (by states or by Congress) run afoul of the U.S. Constitution are "political questions" that lie outside the federal judiciary's competence and beyond its jurisdiction, and are thus "nonjusticiable;" such questions, the Court said, must be resolved by institutions other than the federal courts. Would Ely embrace this outcome? Yet again, I think a careful reading of Democracy and Distrust offers something to both sides.
One prominent aspect of Chief Justice Roberts' majority opinion in Rucho related to the administrability of any doctrinal rule seeking to regulate partisan gerrymandering--a consideration Ely might well appreciate. As Roberts observed, a huge barrier to judicial involvement is the absence of consensus on what the baseline for "fair" treatment of a minority political party would look like:
The initial difficulty in settling on a "clear, manageable and politically neutral" test for fairness is that it is not even clear what fairness looks like in this context. There is a large measure of "unfairness" in any winner-take-all system. Fairness may mean a greater number of competitive districts. Such a claim seeks to undo packing and cracking [the practice of distributing voters among districts so as to maximize the number of safe seats for the majority party] so that supporters of the disadvantaged party have a better shot at electing their preferred candidates. But making as many districts as possible more competitive could be a recipe for disaster for the disadvantaged party. As Justice White has pointed out, "[i]f all or most of the districts are competitive... even a narrow statewide preference for either party would produce an overwhelming majority for the winning party in the state legislature." (citation omitted). On the other hand, perhaps the ultimate objective of a "fairer" share of seats in [a legislative] delegation is most readily achieved by yielding to the gravitational pull of proportionality and engaging in cracking and packing, to ensure each party its "appropriate" share of "safe" seats.... Such an approach, however, comes at the expense of competitive districts and of individuals in districts allocated to the opposing party. (13) Given this, any judicially imposed guidepost would look result-oriented and unwieldy: "Deciding among [the] different visions of fairness [that people may advocate for in districting] poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral. Any judicial decision on what is 'fair' in this context would be an 'unmoored determination' of the sort characteristic of a political question beyond the competence of the federal courts." (14)
As noted above, Ely might very well sympathize with Chief Justice Roberts here, and at least acquiesce in Roberts' suggestion that the federal courts need stay out of this quagmire because of the absence (as of yet) of a clear, easy-to-administer litmus test. Indeed, this is the basis on which Ely ultimately defends the so-called malapportionment rulings--in Ely's mind among the most important, albeit most controversial, decisions decided by the Warren Court, and the ones that provide the best indication of how Ely might approach modern partisan gerrymandering. As Ely puts it, the idea "that there can be no administrable standard for determining the legality of apportionments... is nothing short of silly.... For the very standard the Court chose in the landmark Reynold v. Sims-the "one person, one vote" standard--is certainly administrable. "In fact administr ability is its strong suit, and the more troublesome question is what else it has to recommend it." (15)
For Ely, the threat that malapportionment posed to "government by the majority" required a response by the Court, but not a response that "would have involved the Court in difficult and unseemly inquiries into the [very contextual] power alignments prevalent in the various states whose plans came before it." (16) Quoting Professor Deutsch, Ely worried that "a steady diet" of such a nuanced and context-specific doctrinal approach might not be "accept[ed]" by "our society." (17)
But what of the merits of the notion that, putting aside an administrable test, partisan gerrymandering offends constitutional ideals? After all, though Chief Justice Roberts'...
