INDIVIDUAL RIGHTS AND THE POLITICAL PROCESS: A PROPOSED FRAMEWORK FOR DEMOCRACY DEFINING CASES

walter m. frank, retired

Abstract

For more than four decades, since Baker v. Carr, the Supreme Court has been shaping our democracy in important ways. Among other things, it has approved numerous state laws directed against third parties and independent candidacies, accepted incumbent protection as a redistricting principle, ended the movement for term limits for congressional representatives, eliminated most political patronage, prohibited laws aimed at limiting campaign expenditures, and decided a presidential election. These and other democracy defining cases are often decided on the basis of First Amendment and Equal Protection arguments that do not adequately address the democratic tensions in these cases, resulting in opinions that, because they miss the critical choices the cases present, have failed to create a coherent body of law. This article proposes that the Court should treat democracy defining cases as a discrete category applying heightened scrutiny to state and federal regulations that undermine a framework of specified procedural objectives based on the concept of the freely given consent of the governed. Part I shows why traditional methods of analysis have proved inadequate for these cases. It also describes the proposed framework itself. Part II then critically analyzes important Supreme Court cases, mostly decided over the last fifteen years, addressing issues of ballot access, voter participation in primaries, redistricting, campaign finance, term limits, and debate inclusiveness, to show why the proposed framework would have produced decisions both more pragmatic (because more concerned with practical consequences) and more principled (because based on a recognized set of procedural objectives.)