Costs cumulate. Not only insofar as their separate consequences add up, but also in the sense that often the cumulative effect of independent actions is greater than their sum total might suggest.
This is true of regulation; indeed, the classic conservative critique of big government holds that while each one of several regulations may seem justified when examined under a cost-benefit analysis in isolation, government often substantially underestimates the total burden the regulatory state imposes on individuals and businesses. The concern here is not simply that individual compliance costs add up — although they surely do. It is that, cumulatively, too much regulation is stifling and drains energy and initiative from the private sector.
But what is true for legislative regulation is also true for constitutional adjudication. This is a basic issue the Supreme Court needs to consider as it decides important cases this term that seek federal judicial intervention to police the excessively partisan gerrymandering of congressional district lines by elected officials. In short, the Justices need to focus not only on these cases in isolation, but on the cumulative consequences of the court’s decisions in recent years on public confidence in American democracy.
In 2010 in Citizens United v. Federal Election Commission, the court ruled that government was powerless to prohibit corporations and unions from making independent expenditures to endorse or oppose candidates running for electoral office. According to the court, these expenditures, however massive they might be, and however substantial the access and influence such donors received in return, would not “cause the electorate to lose confidence in our democracy.” That prediction seems dubious in hindsight. It seems clear that these now-permissible expenditures, combined with other factors, have convinced many voters that the electoral game is rigged in favor of wealthy and powerful interests in our society.
But Citizens United is just one debit in the public-confidence-in-the-electoral-process side of the ledger. In 2013, in Shelby County v. Holder, the court essentially eliminated the pre-clearance element of the Voting Rights Act of 1965, a provision that required certain states and local governments, because of their history of race discrimination, to seek clearance from the federal government before they made changes to their electoral practices. Because of that ruling, numerous laws and executive decisions that would have been blocked by the pre-clearance requirement have been implemented and have made voting more difficult. Again, the impact of the decision is to further erode public trust in the political system.
The court’s willingness to uphold Voter ID laws in recent years is yet another withdrawal from the public confidence bank.
The merits of each of these decisions can be debated in isolation. But the aggregate, compounding impact of these cases, and the private and public conduct they permit, is to cumulatively increase the influence of the wealthy and powerful in the electoral process and to facilitate actions by current government officials to manipulate electoral rules and practices in ways that entrench their party’s status, and correspondingly, to undermine the confidence of the American people in the political system.
Foundational principles are at stake here. The legitimacy of government depends on the consent of the governed. For many Americans, purported consent based on what appears to be an unfair, undemocratic electoral process conveys no such legitimacy.
It is not difficult to appreciate the court’s reluctance to wade into the districting thicket, and to try to develop judicially manageable ground rules for reviewing the drawing of district lines. But if the court doesn’t try — if it continues to refuse to adjudicate challenges to gerrymandered districts — and allows grossly politically manipulated district lines to stand, no matter how egregiously unfair and undemocratic they may be, it risks reaching the tipping point where no national governmental institution, including the court itself, will be able to command the respect of the polity.
Chief Justice Roberts once famously analogized the role of the court to that of a baseball umpire calling balls and strikes. In all sports, referees and umpires — in addition to policing garden-variety violations of the rules — must be willing to call out conduct that compromises the essential nature and spirit of the game. Permitting egregious gerrymandering in a democracy is like allowing the home team to throw bean balls at opposing players. If umpires allow home teams to engage in foul play without sanction, we should not be surprised when neither the umpire’s credibility nor the outcome of games commands respect.
Alan Brownstein is a professor of law emeritus at the University of California, Davis School of Law. He has written numerous articles for academic journals and opinion pieces for other media on a range of constitutional law subjects. He is a member of the American Law Institute and served on the Legal Committee of the Northern California American Civil Liberties Union. He received his B.A. degree from Antioch College and earned his J.D. (magna cum laude) from Harvard Law School, where he served as a Case Editor of the Harvard Law Review.