Judge Jeffrey Sutton (who I must disclose at the outset is a good friend despite divergence in some of our jurisprudential views) has done a great public service in writing his second book on state constitutional law. Building on the important contribution of his first book, 51 Imperfect Solutions, which focuses on the way state constitutional law can provide beneficial variation in the protection of individual rights, Judge Sutton’s new book, Who Decides?, extends the same principle of beneficial variation to the structural elements of state constitutional law.
No mere sequel, Who Decides? tackles the arguably more important topic. As Judge Sutton himself writes: “Forced to choose between a constitution that identifies ample individual constitutional rights and one that firmly separates powers among the various branches of government, every citizen should opt for the latter.” The reason is that a constitution’s structural provisions make the rest of the constitution meaningful. A constitution can purport to protect the right to vote from racial discrimination, as the Federal Constitution did with the adoption of the Fifteenth Amendment, but the written words of the document make no difference unless the Constitution establishes an institutional arrangement that enables enforcement of its words—as the nation learned to its everlasting shame when in Giles v. Harris (1903) the Supreme Court refused to make Alabama obey the Fifteenth Amendment because it had no practical way to impose its will without the cooperation of the federal executive.
As an election law scholar, I gravitate to the Giles v. Harris example to make the general point. Similarly, in appraising the importance of Judge Sutton’s new book, I consider the ways in which a state’s constitution can structure the state’s election procedures. Judge Sutton himself devotes ample attention to one of these ways: the drawing of legislative districts and the risk of gerrymandering as part of this process. In addition to addressing this specific issue, I will also discuss an aspect of state-by-state electoral variation that Judge Sutton does not address: the design of the electoral system itself, including the rules for how candidates get on the ballot, how primaries relate to the November general election, and how many votes it takes to win the election (a majority or merely a plurality). The capacity of states to serve their function in our federalist system as laboratories of democracy may be most important, at least right now at this stage of our nation’s history, on the basic matters of electoral structure.
In a controversial 2019 decision, Rucho v. Common Cause, the U.S. Supreme Court by a 5-4 vote ruled that the “political question doctrine” bars the federal judiciary from adjudicating whether a state’s redistricting is an unconstitutional partisan gerrymander. The majority opinion, by Chief Justice Roberts, based its reasoning on the proposition that the plaintiffs offered no “judicially manageable standard” by which to differentiate excessive partisanship in the drawing of district lines from a constitutional degree of partisanship in these districting decisions. The dissent, by Justice Kagan, pointed out the availability of computer-generated statistical analysis capable of identifying when a state’s redistricting map is an outlier, in terms of its partisan imbalance, when compared to thousands of other possible maps that satisfy the state’s own asserted redistricting criteria. Chief Justice Roberts retorted that however valid the statistical analysis might be, the Federal Constitution still did not specify just how extreme a map must be (two standard deviations or three, for example?) to be an impermissible outlier.
In the wake of Rucho, state supreme courts have been willing to do what the U.S. Supreme Court was not. Judge Sutton cites two such decisions, one from Pennsylvania and another from North Carolina, which were instrumental in undoing congressional gerrymanders that could have controlled which party was the majority in the House. Since the new round of redistricting after the 2020 census, the Ohio Supreme Court has joined this flexing of judicial muscle in defense of electoral fairness.
Other state courts may do the same before this year’s redistricting is over. Most notably, New York’s judiciary is being asked to negate a brazen gerrymander by the state’s Democrats. If it does, it will be an example of applying the same basic principle regardless of which political party is advantaged in a particular case.
This kind of state court deviation from a comparable U.S. Supreme Court decision should be applauded by Judge Sutton and other advocates of state-based constitutional individuation. State constitutions can—and (like Ohio’s and Florida’s) do—contain specific clauses endeavoring to set their own standards of partisan fairness in districting. While these clauses may not be as precise as desirable from the perspective of a judge who is obligated to identify the operative statistical standard best tailored to implement the constitutional text, they still signal the need for judicial enforcement more than anything in the Federal Constitution, which has nothing that explicitly applies to redistricting.
Moreover, as laboratories of democracy, state courts can learn from each other, whereas the federal judiciary is necessarily constrained by a single nationally uniform standard derived from the countrywide constitutional command. Thus, when Judge Sutton writes that the Pennsylvania and North Carolina decisions have been underwhelming as illustrations of state-based variability, saying that they “have yet to identify a workable approach suitable for export,” this critique seems uncharitable or at least premature. The Ohio Supreme Court’s new rulings are arguably an improvement on what came before—more innovative in their reliance on relevant statistics in the way that Judge Sutton exhorts (for “identifying outlier” maps)—and newer rulings could be even more of an improvement as the lessons of experimentation are learned.
But there is a separate problem with relying on state court rulings to invalidate excessive partisan gerrymanders, at least with respect to congressional districts in contrast to districts for seats in the state’s own legislature. How a state handles the drawing of districts for its own legislature does not directly affect any other state. Therefore, any experimentation that the state’s supreme court does on this issue cannot hurt the citizens of other states. They can only learn from whatever mistake the experimenting state might make. In this respect, a state court’s experimentation on this question is not different from a state court’s experimentation regarding the scope of free speech or other individual rights for its own residents. Any direct downside from the experimentation is entirely internal to the state itself; the only effects outside the state would be beneficial.
By contrast, a state’s experimentation with congressional redistricting does not have purely local consequences. The parties are fighting for control of the national legislature. Therefore, one state’s decision to modify the procedures that affect the partisan composition of the state’s congressional delegation will affect not only the citizens of that state, but the citizens of the nation as a whole. Some consider it a kind of “unilateral disarmament” when one state’s court prohibits partisan gerrymandering of that state’s congressional districts while the courts of other states (like the U.S. Supreme Court) permit it to continue. I, for one, reject this argument, because I believe the citizens of each state are entitled to electoral fairness in voting for their Representatives in Congress. But there’s no denying that it would be preferable if there were a nationally uniform baseline of electoral fairness, below which no state could go in drawing its congressional districts.
I would locate this nationwide standard in the principle that a state’s House seats on average should presumptively be as competitive as the state itself. After all, Article I of the Federal Constitution, in making the House of Representatives the part of the new national government most directly responsive to the will of the state’s electorate, declared that the “people” of each state shall elect the state’s congressional delegation. The will of the people is frustrated when maps are designed to make each seat as foregone a conclusion as possible before any ballots are cast. This constitutional principle is “judicially manageable” in a way that the quest for partisan balance in Rucho was not: the average competitiveness of a state’s House seats can be easily and definitively measured against the competitiveness of the state as a whole. There is no need to guess about how much is too much: the state can be required to defend any gap between (1) its average House competitiveness and (2) its statewide competitiveness. If the states must have this gap to achieve valid redistricting criteria, so be it; but if not, then the court can require the state to close this gap. The problem of Rucho is solved. Moreover, I would have courts enforce this judicially manageable standard not as the kind of constitutional law that can be overturned only by constitutional amendment (always a reason for responsible judicial restraint), but instead as form of “dormant Election Clause law” analogous to dormant Commerce Clause law, which Congress can revise by statute if it disagrees with the judiciary’s decision (thereby raising a much lower concern about an imperial judiciary).
But in the absence of this kind of federal law constraint on congressional gerrymanders, I would continue to rely on judicial innovation by state courts to curtail congressional gerrymanders as much as possible.
Electoral System Design
States can—and should—serve as laboratories of democracy on a topic of even greater significance than redistricting. States should answer the basic question of how candidates get on the general-election ballot that voters cast and how many votes it takes for a general-election candidate to win. This topic includes the role and structure of primary elections. Although these topics are not as frequently a basis for litigation as redistricting, and for that reason may not draw Judge Sutton’s attention, they are key elements of a state’s electoral process for the state’s constitution to address, and state-by-state variation on these matters may improve collective understanding of what works best.
It turns out that it is very tricky to design an electoral system that sensibly winnows a field of multiple candidates down to a single winner. If there were only two candidates, that would be easy: the candidate with the most votes would also have a majority. But when there are three or more candidates, it’s often the case that the candidate who receives the most votes has only a plurality, and not a majority. Then the question arises whether this plurality should be enough to win the election. What if a candidate with only 35% or less of the total votes is fiercely opposed by 65% or more of the electorate, but those voters split their opposition to the plurality-preferred candidate among more than one alternative, allowing the candidate with 35% to win?
The two-party system was intended to avoid this problem by channeling the choice among multiple alternatives into two separate preliminary competitions, so that there are only two options at the end. But the two-party system has not always performed properly in practice. For one thing, minor-party and independent candidates can make it on the general-election ballot, leading to a fragmentation of the electorate, with the winner receiving only a plurality and not a majority of votes—thus replicating the basic problem. Moreover, the internal candidate-selection procedures of each major party can have the effect of eliminating from contention the one candidate whom a majority of general-election voters would have most preferred.
This latter problem is especially acute right now. Consider, as one possible example among many, the plight of Senator Rob Portman from Ohio. He’s popular with the state’s general-election voters. One-on-one against any Democrat, he would easily win reelection. Moreover, if given the chance to compete one-on-one against any other Republican candidate in the general election, Portman would also easily be the preferred choice of a majority of November voters. But Portman may no longer be able to win the primary of his own Republican party, and therefore general-election voters will not have the opportunity to choose him in a two-party contest between the Democrat and Republican primary winner. Portman, faced with this situation, decided to retire rather than run for reelection.
What to do about this? Here’s where state-by-state experimentation would be especially helpful. Alaska has adopted a new electoral system, in which a nonpartisan primary sends four finalists to the general election, to be chosen using Ranked Choice Voting. It’s a worthwhile innovation. For example, it may work to solve “the Portman problem” for Alaska itself: Lisa Murkowski may, like Portman, be the candidate who would beat any other contender one-on-one, and Alaska’s new system may enable her to prevail—whereas under the old system she, like Portman, might not have been able to win her party’s primary election.
But Alaska’s new system may not solve the “Portman problem” for every state, including Ohio. The reason concerns technical features of Ranked Choice Voting. Alaska has adopted one version of Ranked Choice Voting, but there are others. Alaska’s version is often called Instant Runoff Voting, because it operates to make the general election function as if it included a runoff at the same time. But its instant-runoff methodology, depending on the particular circumstances, can have the effect of eliminating the candidate who would beat all others one-on-one. For example, if Portman were in an instant runoff situation with only 30% of the vote, whereas his Democratic opponent had 38%, and his Trump-supported Republican opponent had 32%, then Portman would be eliminated with the instant runoff choosing between the other two candidates, even though Portman would still defeat either opponent one-on-one.
This analysis indicates that other states, like Ohio, might wish to consider variations on Alaska’s new electoral system, rather than replicating it exactly. It is possible, for example, to create a system of Ranked Choice Voting that does not employ Alaska’s instant-runoff methodology, but instead calculates which candidate performs best when compared one-on-one against every other candidate. We can call this variation of Ranked Choice Voting a “round-robin” election because it resembles a round-robin form of competition used in sports, where each competitor face off head-to-head against every other competitor.
There are indeed other varieties of Ranked Choice Voting besides instant-runoff or round-robin. Each variety has its own specific mathematical properties as it works to identify a single winner from a field of multiple candidates. These differing versions have their own pros and cons, as political theorists have studied for decades. But it would be useful for states to start experimenting with these different varieties of Ranked Choice Voting, to see how they actually perform in practice.
For states to perform as laboratories of democracy in this way would be for them to function as Judge Sutton most would wish, and to do so on a structural issue that is foundational to each state’s government: how votes for candidates get translated into officeholders. While it is perhaps regrettable that Judge Sutton did not discuss this particular structural issue in his book devoted to variation in the structural elements of state constitutional law, the book points the way for applying Judge Sutton’s vision of state-based experimentation to this specific topic as well. Indeed, maybe Judge Sutton will do so himself, and we can look forward to his project becoming a trilogy.
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