Democracy and collective decision making

International Journal of Constitutional Law

Volumn 6, Issue 2, 2008, Pages 231-266

  Issacharoff, Samuel ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

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[No Author keywords available]

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EID: 42049114254     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mon003     Document Type: Article

References (164)

1. See generally AREND LIJPHART, DEMOCRACY IN PLURAL SOCIETIES: A COMPARATIVE EXPLORATION (Yale Univ. Press 1977);
2. Charles E. Ehrlich, Democratic Alternatives to Ethnic Conflict: Consociationalism and Neo-Separatism, 26 BROOK. J. INT'L L. 447 (2000).
3. Reference re Secession of Quebec, [1998] 2 S.C.R. 217.
4. See generally TONY JUDT, POSTWAR 701-713 (Penguin 2005);
5. CHRISTOPHER HEWITT & TOM CHEETHAM, ENCYCLOPEDIA OF MODERN SEPARATIST MOVEMENTS (ABC-Clio, Inc. 2000).
6. UNITED STATES CONFERENCE OF CATHOLIC BISHOPS, CATECHISM OF THE CATHOLIC CHURCH, pt.3, 1§, ch. 2, at 1883 n.7 (2d ed. 1994), available at http://www.usccb.org/catechism/text/ pt3sect1chpt2.htm#7.
7. The Maastricht Treaty's subsidiarity provision reads: In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member-States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. Treaty Establishing the European Community art. 3b, Nov. 10, 1997, 1997 O.J. (C340) 3.
8. See generally ANTONIO ESTELLA, THE EU PRINCIPLE OF SUBSIDIARITY AND ITS CRITIQUE 74-179 ( Oxford Univ. Press 2002 ).
9. Patrick McKinley Brennan, Harmonizing Plural Societies: The Case of Lasallians, Families, Schools - and the Poor, 45 J. CATH. LEGAL STUD. 131, 133 (2007).
10. More typically, some countries build in limited autonomy guarantees at the local level, without recognizing any right to withdraw from the national confederation. For example, article 28(2) of the German Grundgesetz, which guarantees, even against action by the Länder, that local governments have "the right to regulate all local affairs on their own responsibility, within the limits prescribed by law." GRUNDGESETZ (GG) art. 28(2), available at http://www.bundestag.de/htdocs_e/parliament/function/legal/ germanbasiclaw.pdf (official English translation of 2000).
11. For an elaboration of the idea of retained political power in the context of local governance, see Clayton P. Gillette, The Exercise of Trumps by Decentralized Governments, 83 VA. L. REV. 1347 (1997 ).
12. Canada recognizes a complicated federal structure that reserves important powers to the provinces within the overall constitutional framework and specifies specific powers held by the federal government. See In re Initiative & Referendum Act (Manitoba), [1919] A.C. 935, 942 (Manitoba P.C.) (explaining that the basic constitutional premise was "not to weld the Provinces into one, nor to subordinate Provincial Governments to a central authority, but to establish a central government in which these Provinces should be represented, entrusted with exclusive authority only in affairs in which they had a common interest. Subject to this each Province was to retain its independence and autonomy and to be directly under the Crown as its head.").
13. Reference re Secession of Quebec, [1998] 2 S.C.R. 217.
14. Id. at 253.
15. Id. at 259.
16. Id. at 255.
17. Brendan O'Leary, Debating Consociational Politics: Normative and Explanatory Arguments, in FROM POWER SHARING TO DEMOCRACY: POST CONFLICT INSTITUTIONS IN ETHNICALLY DIVIDED SOCIETIES 3, 16 (Sid Noe ed., McGill-Queen's Univ. Press 2004).
18. Twenty-two of the one hundred and five Canadian Senators represent Quebec and three of the nine sitting Canadian Supreme Court Justices are members of the Quebec Bar.
19. By and large, the international law consensus on the right of self-determination, to the extent there is one, is limited to situations of conquest or colonization. See Patrick Macklem, Militant Democracy, Legal Pluralism, and the Paradox of Self-Determination, 4 INT'L J. CONST. L. (I•CON) 488, 505 (2006).
20. Formal mechanisms of constitutional amendment are a relatively new process in Canada. Prior to the constitutional reorganization in 1982, amendments of the Canadian Constitution were formally made by the U.K. Parliament as amendments to the British North America Act. Such amendments were typically approved only upon request endorsed by concurrent majorities of the House of Commons and the Senate, generally after obtaining a substantial degree of provincial consent. See generally PETER W. HOGG, CONSTITUTIONAL LAW OF CANADA 61-76 (3d ed., Carswell 1992).
21. 2 S.C.R. at 265.
22. This formulation is from Sujit Choudhry, Popular Revolution or Popular Constitutionalism? Reflections on the Constitutional Politics of Quebec Secession, in THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE CONSTITUTIONAL STATE 480, 487 (Richard W. Bauman & Tsvi Kahana eds., Cambridge Univ. Press 2006).
23. 2 S.C.R. at para. 74.
24. Id.
25. For the classic account of consociationalism and its defense as a mechanism for stabilizing deeply conflicted societies, see LIJPHART, supra note 1.
26. This is the Shaw line of cases, named after the first Supreme Court case to announce a distinct constitutional concern over the use of excessive racial considerations in drawing territorial districts. See Shaw v. Reno (Shaw I), 509 U.S. 630 (1993);
27. Shaw v. Hunt (Shaw II), 517 U.S. 899 (1996);
28. Hunt v. Cromartie (Cromartie I), 526 U.S. 541 (1999);
29. Easley v. Cromartie (Cromartie II), 532 U.S. 234 (2001).
30. For an account of the complex institutional and political compromises reflected in Belgium's elaborate consociational arrangement, see Wilfried Swenden, What - If Anything - Can the European Union Learn from Belgian Federalism and Vice Versa?, 15 REG'L & FED. STUD. 187 (2005).
31. See JUDT, supra note 3, at 710;
32. Martin Conway, Justice in Postwar Belgium: Popular Passions and Political Realities, in THE POLITICS OF RETRIBUTION IN EUROPE: WORLD WAR II AND ITS AFTERMATH 133 (István Deák, Jan T. Gross & Tony Judt eds., Princeton Univ. Press 2000) (describing German preferential treatment and promotion of the Flemish and Dutch speaking populations of Belgium as opposed to the Francophone population ).
33. See Mathieu-Mohin & Clerfayt v. Belgium, 10 Eur. H.R. Rep. 1, 8 (1988).
34. 10 Eur. H.R. Rep. 1 (1988).
35. Id. at 2.
36. Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Mar. 20, 1952, 213 U.N.T.S. 262, available at http://conventions.coe.int/Treaty/en/Treaties/Html/009.htm.
37. European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221, available at http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm.
38. 10 Eur. H.R. Rep. at 13 (Cremona, Bindschedler-Robert, Bernhardt, Spielmann & Valticos, JJ., dissenting).
39. Id. at para. 57.
40. Id.
41. Id.
42. Id.
43. Baker v. Carr, 369 U.S. 186 (1962).
44. Id. at 226.
45. For critical accounts of this initial move, see Michael W. McConnell, The Redistricting Cases: Original Mistakes and Current Consequences, 24 HARV. J.L. & PUB. POL'Y 103 (2000);
46. Guy-Uriel E. Charles, Constitutional Pluralism and Democratic Pluralism: Reflections on the Interpretive Approach of Baker v. Carr, 80 N.C. L. REV. 1103 (2002).
47. See SAMUEL ISSACHAROFF, PAMELA S. KARLAN & RICHARD H. PILDES, THE LAW OF DEMOCRACY: LEGAL REGULATION OF THE POLITICAL PROCESS 175 (3d ed., Foundation 2007) (describing disparities in voting power of 23 to 1 in Baker and much higher in some of the accompanying cases of the period).
48. 377 U.S. 713 (1964).
49. See id. at 758 (Stewart, J., dissenting).
50. Id. at 730.
51. Id. at 736-737.
52. 395 U.S. 621 (1969).
53. Id. at 627-628.
54. Id. at 639 (Stewart, J., dissenting).
55. Ball v. James, 451 U.S. 355 (1981).
56. Ball concerned a challenge to the Salt River Project Agricultural Improvement and Power Districtin Arizona, which controlled the water distribution to about half the population of the state, including the growing cities of the state, such as Phoenix.
57. Id. at 373.
58. For a more mechanical application of formal voting rights law to strike down experimentation with parental engagement in local school administration, see Fumarolo v. Chicago Board of Education, 566 N.E.2d 1283 (Ill. 1990).
59. 489 U.S. 688 (1989).
60. See Richard Briffault, Voting Rights, Home Rule, and Metropolitan Governance: The Secession of Staten Island as a Case Study in the Dilemmas of Local Self-Determination, 92 COLUM. L. REV. 775 (1992).
61. The discussion is taken from Evans v. Romer, 882 P.2d 1335 (Colo. 1994), aff'd, 517 U.S. 620 (1996).
62. Id. at 1348.
63. Id.
64. Id. at 1338-1339.
65. There is no particular political valence to debates over local versus higher-level control over decisions such as the rights of homosexuals. The same day I first presented this paper in Jerusalem there was a protest by local authorities claiming an autonomy right to ban a gay pride demonstration. Their claim was that the more conservative Jerusalem local government should have the ability to determine the level of support for gay rights in a manner distinct from the national consensus.
66. 517 U.S. 620 (1996).
67. Romer v. Evans, 517 U.S. at 648 (Scalia, J., dissenting).
68. 517 U.S. at 631.
69. Ironically, one American court has seized on the capacity of local majorities to fashion new rules as grounds for affirming a local antihomosexual ordinance. At issue in Cincinnati was a local prohibition that deprived homosexuals of recourse to local antidiscrimination laws to claim affirmative action or any of the more expansive remedies associated with current equal protection law. The court ultimately upheld the challenged ordinance on the grounds that, since the prohibition did not operate at the statewide level, it could be overridden at the statewide level and hence did not foreclose claims for redress within the political process. Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997).
70. 403 U.S. 1 (1971).
71. Id. at 6.
72. Initiative & Referendum Inst. v. Walker, 450 F.3d 1082 (10th Cir. 2006), cert. denied, 127 S.Ct. 1254 (2007).
73. 450 F.3d at 1100-1101.
74. Id. at 1100.
75. ANDRÁS SAJÓ, LIMITING GOVERNMENT 49 (Central European Univ. Press 1999).
76. See, e.g., Kieran Williams, Judicial Review of Electoral Thresholds in Germany, Russia, and the Czech Republic, 4 ELECTION L.J. 191, 192-195 (2005) (discussing the German Constitutional Court's longstanding approval of electoral thresholds).
77. See, e.g., the Shaw line of cases, supra note 23.
78. EDMUND BURKE, THE WORKS OF THE RIGHT HONORABLE EDMUND BURKE 447 (George Bell & Sons 1902) (1801). The opposite claim is that representatives must act "in the interest of the represented, in a manner responsive to them."
79. HANNAH F. PITKIN, THE CONCEPT OF REPRESENTATION 209 (Univ. of Cal. Press 1967).
80. In 2005, the faltering Liberal government of Prime Minister Paul Joseph Martin received a brief reprieve from falling as the result of the defection of an opposition member from the even more weakened Conservative Party. See Conservative Stronach Joins Liberals, CBC NEWS, May 18, 2005, available at http://www.cbc.ca/canada/story/2005/05/17/stronach-liberals050517.html. My thanks to Colin Feasby for alerting me to the Canadian example.
81. New Zealand similarly prohibited party switching by members of Parliament in the Electoral (Integrity) Amendment Act, 2001, but the prohibition was statutory and expired by design in 2005. See Mathew S. R. Palmer, Using Constitutional Realism to Identify the Complete Constitution: Lessons From an Unwritten Constitution, 54 AM. J. COMP. L. 587, 610 n.64 (2006).
82. The role of this constitutional provision is discussed in the landmark case in which the South African Constitutional Court reviewed the entire constitutional compact for conformity to the negotiated principles that ended apartheid. See In re Certification of the Constitution of the Republic of South Africa, 1996 (4) SALR 744 (CC).at para 181 n.136 and accompanying text (considering whether the antidefection principle was unconstitutional). My account of the initial constitutional issues in South Africa may be found at Constitutionalizing Democracy in Fractured Societies, 82 TEX. L. REV. 1861 (2004).
83. United Democratic Movement v. The President of the Republic of South Africa 2003 (1) SA 495 (CC).
84. Id. at 49.
85. This robust constitutionalization is addressed critically in Richard H. Pildes, Foreword: The Constitutionalization of Democratic Politics 118 HARV. L. REV. 28 (2004).
86. The attempt to protect the domain of politics is central to Jeremy Waldron's critique of judicial review. For example, he argues that legislation best preserves the unique virtue of political contestation, given that "the community for which the law is made is essentially plural, and in its essence incapable of representation by a single voice." JEREMY WALDRON, LAW AND DISAGREEMENT 60 (Oxford Univ. Press 1999).
87. Even with regard to the most contested rights issues, Waldron strongly argues for what he terms the dignity of legislation. For a critical overview of the role of rights claims in dampening the ardor of the masses on an international scale, see RAN HIRSCHL, TOWARDS JURISTOCRACY (Harvard Univ. Press 2005).
88. For an informed discussion of the informal pathways among peripatetic judges of Supreme and Constitutional courts and how these have contributed to the formation of an international "common law" of rights jurisprudence, see ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER (Princeton Univ. Press 2004).
89. See, e.g., Holder v. Hall, 512 U.S. 874, 893 (1994) (Thomas, J., concurring) ("[O]nly a resort to political theory... can enable a court to determine which electoral systems provide the 'fairest' levels of representation...");
90. Reynolds v. Sims, 377 U.S. 533, 620 (1964) (Harlan, J., dissenting) (denouncing the majority for ruling "on the basis of political judgments which they are incompetent to make");
91. Lucas v. Forty-Fourth Gen. Assembly of State of Colo., 377 U.S. 713, 747-48 (1964) (Stewart, J., dissenting) (criticizing the majority for measuring the "demands of the Constitution... not by what it says, but by their own notions of wise political theory");
92. Colegrove v. Green, 328 U.S. 549, 552 (1946) (Frankfurter, J., plurality opinion) (dismissing challenge to Illinois's districting scheme because the issue was of a "peculiarly political nature and therefore not meet for judicial determination").
93. Daniel R. Ortiz, Got Theory?, 153 U. PA. L. REV. 459 (2004).
94. ARISTOTLE, THE POLITICS 74-75 (Benjamin Jowett & Thomas Twining trans., Viking Press 1957) (350 B.C.E).
95. Jeremy Waldron, The Wisdom of the Multitude: Some Reflections on Book 3, Chapter 11 of Aristotle's Politics, 23 POL. THEORY 563 (1995).
96. BRYAN CAPLAN, THE MYTH OF THE RATIONAL VOTER 8 (Princeton Univ. Press 2007).
97. JAMES SUROWIECKI, THE WISDOM OF CROWDS 11 (Random House 2004).
98. MARIE-JEAN-ANTOINE-NICOLAS DE CARITAT, MARQUIS DE CONDORCET, ESSAI SUR L'APPLICATION DE L'ANALYSE À LA PROBABILITÉ DES DÉCISIONS RENDUES À LA PLURALITÉ DES VOIX [ESSAY ON THE APPLICATION OF ANALYSIS TO THE PROBABILITY OF DECISIONS RENDERED BY A PLURALITY OF VOICES (photo. reprint 1972) (1785).
99. JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT OR PRINCIPLES OF POLITICAL RIGHT 15 (G.D.H. Cole trans., Kessinger 2004) (1762).
100. For an extensive discussion connecting the Condorcet jury theorem to Rousseau's general will, see Bernard Grofman & Scott L. Feld, Rousseau's General Will: A Condorcetian Perspective, 82 AM. POL. SCI. REV. 567 (1988).
101. It also was applied by Condorcet himself strongly to advocate unicameralism since, in his view, "increasing the number of legislative bodies could never increase the probability of obtaining true decisions." MARQUIS DE CONDORCET, Letters from a Freeman of New Haven to a Citizen of Virginia on the Futility of Dividing the Legislative Power Among Several Bodies: Letter Four, in CONDORCET: FOUNDATIONS OF SOCIAL CHOICE AND POLITICAL THEORY 292, 329 (Iain McLean & Fiona Hewitt eds., Fiona Hewitt trans., 1994 ),
102. quoted in Nicholas Quinn Rosencrantz, Condorcet and the Constitution: A Response to The Law of Other States, 59 STAN. L. REV. 1281, 1293 (2007).
103. Even more vituperatively, Condorcet characterized bicameral legislatures as a "fear of innovation, one of the most fatal scourges of the human race." Quoted at id.
104. THE FEDERALIST NO. 10, at 63-65 (James Madison) (Jacob E. Cooke ed., Wesleyan Univ. Press 1961).
105. WALDRON, DISAGREEMENT, supra note 75.
106. Id. at 70.
107. See Avishai Margalit, The Lessons of Spinoza, N.Y. REV. BOOKS, Apr. 12, 2007, at 71-72, available at http://www.nybooks.com/articles/20072.
108. For example, Jeremy Waldron contrasts the transformative role played by "structured politics" in the legislative setting for Hannah Arendt with the isolation of the voting booth ("this booth has room for only one"), in which little more than narrow self-interest is likely to be manifest. Jeremy Waldron, Arendt's Constitutional Politics, in THE CAMBRIDGE COMPANION TO HANNAH ARENDT 201 (Dana Villa ed., Cambridge Univ. Press 2001).
109. Bukhari v. Mehra, (1975) S.C.R. 453.
110. See generally David M. Estlund, Who's Afraid of Deliberative Democracy?, 71 TEX. L. REV. 1437, 1440-1441 (1993).
111. See James S. Fishkin & Robert C. Luskin, Bringing Deliberation to the Democratic Dialogue, in THE POLL WITH A HUMAN FACE 3 (Maxwell McCombs & Amy Reynolds eds., Lawrence Erlbaum 1999);
112. BRUCE ACKERMAN & JAMES S. FISHKIN, DELIBERATION DAY (Yale Univ. Press 2004);
113. JAMES S. FISHKIN, THE VOICE OF THE PEOPLE (Yale Univ. Press 1997).
114. See, e.g., Joshua Cohen, Deliberation and Democratic Legitimacy, in DEMOCRACY 87 (David Estlund ed., Blackwell 2002 ).
115. KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d ed., Yale Univ. Press 1970).
116. JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT: LOGICAL FOUNDATIONS OF CONSTITUTIONAL DEMOCRACY §§ 3.2.3-3.2.8 (1999), available at http://www.econlib.org/library/Buchanan/buchCv3Contents.html.
117. WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE THEORY OF SOCIAL CHOICE (W.H. Freeman & Co. 1982).
118. MANCUR OLSON, JR., THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 29 (Harvard Univ. Press 1971).
119. THE FEDERALIST NO. 10, AT 40-41 ( James Madison) (Terence Ball ed., 2003).
120. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 292 (Gerald Bevan trans., Penguin Classics 2003) (1835).
121. JOHN STUART MILL, ON LIBERTY 62 (Gertrude Himmelfarb ed., Penguin Classics 1982) (1859). Paradoxically, Mill also recognized not only the possibility but the need for a nation to be forged through the suppression of obstacles to national unity, including minority languages and other attributes hostile to the development of a national identity. As he expressed it, "When proper allowance has been made for geographical exigencies, another more purely moral and social consideration offers itself. Experience proves that it is possible for one nationality to merge and be absorbed in another: And when it was originally an inferior and more backward portion of the human race the absorption is greatly to its advantage." JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 313 (Henry Regnery 1962) (1861).
122. Cass R. Sunstein, Deliberative Trouble? Why Groups Go to Extremes, 110 YALE L.J. 71, 118 (2000).
123. See generally RICHARD J. EVANS, THE COMING OF THE THIRD REICH (Penguin 2004);
124. ADRIAN LYTTELTON, THE SEIZURE OF POWER: FASCISM IN ITALY 1919-1929 (Routledge 2004).
125. See, e.g., BRUNO S. FREY & ALOIS STUTZER, HAPPINESS AND ECONOMICS: HOW THE ECONOMY AND INSTITUTIONS AFFECT HUMAN WELL-BEING (Princeton Univ. Press 2002) (discussing positive effects of direct democracy on citizens in Switzerland).
126. See also Caroline J. Tolbert & Daniel A. Smith, Representation and Direct Democracy in the United States, 42 REPRESENTATION 25 (2006) (arguing that the initiative and referendum processes increase civic engagement in American states based on empirical research).
127. ROBERT D. COOTER, THE STRATEGIC CONSTITUTION 232-233 (Princeton Univ. Press 1999).
128. Samuel Issacharoff, Fragile Democracies, 120 HARV. L. REV. 1405 (2007).
129. For a historic account of the development and erosion of the political-question doctrine, see Rachel Barkow, More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 COLUM. L. REV. 237 (2002).
130. For a contrast between the jurisdictional limit on what courts may hear and the prudential limit on what courts should entertain, see Samuel Issacharoff, Political Judgments, 68 U. CHI. L. REV. 637 (2001).
131. Many commentators have noted the increased willingness of courts around the world to entertain claims regarding the operation of the political process on terms that would previously have been deemed beyond judicial scrutiny. See, e.g., John Ferejohn, Judicializing Politics, Politicizing Law, 65 LAW & CONTEMP. PROBS. 41, 61 (2002 );
132. Russell A. Miller, Lords of Democracy: The Judicialization of "Pure Politics" in the United States and Germany, 61 WASH. & LEE L. REV. 587, 588-592 (2004).
133. For a broader overview, see C. Neal Tate, Why the Expansion of Judicial Power, in THE GLOBAL EXPANSION OF JUDICIAL POWER 27, 27 (C. Neal Tate & Torbjörn Vallinder eds., New York Univ. Press 1995).
134. For a discussion of the negotiated transition and the role of the South African Constitutional Court, see Samuel Issacharoff, Constitutionalizing Democracy in Fractured Societies, 82 TEX. L. REV. 1861, 1870-1883 (2004);
135. Ziyad Motala, Constitution-Making in Divided Societies and Legitimacy: Lessons from the South African Experience, 15 TEMP. POL. & CIV. RTS. L. REV. 147 (2005).
136. See also In re Certification of the Constitution of the Republic of South Africa, supra note 71.
137. For a critical assessment of the tendency to turn quickly to constitutional principle by specialized constitutional courts, see Victor Ferreres Comella, The Consequences of Centralizing Judicial Review in a Special Court: Some Thoughts on Judicial Activism, 82 TEX. L. REV. 1705, 1730 (2004) (arguing that specialized constitutional courts will tend to be relatively less deferential because "[a] constitutional court is not likely to earn its own space in the institutional system if it regularly upholds the statutes that are challenged before it").
138. These questions can be routinely posed by annexations and deannexations of particular areas into municipal zones. Thus, by and large, most courts in the U.S. have upheld limiting the franchise based on geography or landholding, as well as on the basis of property holding in the area under consideration. See, e.g., Simi Valley Recreation & Park Dist. v. Local Agency Formation Comm'n, 124 Cal. Rptr. 635 (Cal. Ct. App. 1975) (permissible to exclude residents who do not live in area to be deannexed);
139. Moorman v. Wood, 504 F. Supp. 467 (E.D. Ky. 1980) (permissible to limit franchise in deannexation to only those voters in area potentially to be deannexed).
140. For an overview, see Clayton R. Gillette, Voting With Your Hands: Direct Democracy in Annexation, 78 S. CAL. L. REV. 835 (2005).
141. See, e.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960) (striking down disenfranchising racial redistricting in Tuskegee, Alabama).
142. See, e.g., Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978) (upholding the city's police jurisdiction over adjacent unincorporated areas despite the absence of a concomitant extension of the right to vote in city elections).
143. 89 BVerfG 155 (1993) as translated in DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY, 182-186 (2d ed., Duke Univ. Press 1997).
144. See Thomas Franck, The Emerging Right to Democratic Governance, 86 AM. J. INT'L L. 46 (1992) (describing increased rigor of international law commitments to democratic rights).
145. There is a debate of some duration now in the legal literature on the law governing the political process. Many have termed these debates as between "structuralists" and "rights advocates." See Guy-Uriel E. Charles, Democracy and Distortion, 92 CORNELL L. REV. 601 (2007);
146. Heather K. Gerken, Lost in the Political Thicket: The Court, Election Law, and the Doctrinal Interregnum, 153 U. PA. L. REV. 503, 510 (2004).
147. A repeated claim is that "the structural approach leads inevitably to intrusive judicial involvement in states' political arrangements." Bruce E. Cain, Garrett's Temptation, 85 VA. L. REV. 1589, 1600 (1999). One of the secondary points of this article is to show, quite the contrary, that the mechanical invocation of a rights-based approach threatens destabilization by the courts of reasonable and necessary political accommodations.
148. Pamela S. Karlan, Exit Strategies in Constitutional Law: Lessons for Getting the Least Dangerous Branch Out of the Political Thicket, 82 B.U. L. REV. 667 (2002).
149. Some have tried to fill in this gap by relying on principles of citizen engagement in possible decision making, thereby drawing on a view of democracy that promotes participation and the generation of information from local bodies. The most intriguing of these approaches is advanced by my colleague Rick Hills. See Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process 82 N.Y.U. L. REV. 1 (2007).
150. Another noteworthy example from the ECtHR comes with Bowman v. United Kingdom, 26 Eur. H.R. Rep. 1 (1998), a challenge to the entire British system of financing of political parties and election campaigns, also handled from the limited perspective of individual rights to participate. See Jacob Rowbottom, Access of the Airwaves and Equality: The Case Against Political Advertising on the Broadcast Media, in PARTY FUNDING AND CAMPAIGN FINANCING IN INTERNATIONAL PERSPECTIVE 77 (K.D. Ewing & Samuel Issacharoff, eds., Hart 2006).
151. Charles, supra note 115, at 609.
152. Elizabeth Garrett, Who Chooses the Rules?, 3 ELECTION L.J. 139, 139 (2005).
153. The opening gambit in this inquiry was Samuel Issacharoff & Richard Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643 (1998).
154. In Germany, for example, the Constitutional Court upheld a 5 percent threshold for representation as a reasonable political accommodation, particularly in light of the postwar need for stability. See DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 186-187 (2d ed., Duke Univ. Press 1997) (discussing the Bavarian Party Case, 6 BVerfGE 84 (1957)).
155. Subsequently, after reunification, the Court struck down efforts to expand the scope of newly integrated parties to "piggybackλ in coalitions in order to achieve the 5 percent threshold. Id. at 188-189 (translation of the National Unity Election Case, 82 BVerfGE 322 (1990)). A similar issue was presented by the 2002 reforms to the Turkish parliamentary system, which raised the threshold of representation to ten percent. The European Court of Human Rights upheld the high threshold and ruled in a manner consistent with the thesis of this article: The rules in this area vary in accordance with the historical and political factors specific to each State; the large variety of situations provided for in the electoral legislation of numerous member States of the Council of Europe shows the diversity of the possible options. For the purposes of applying Article 3 of the Protocol, any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another..., at least so long as the chosen system provides for conditions which will ensure the "free expression of the opinion of the people in the choice of the legislature." Case of Yumak & Sadak v. Turkey, App. No. 10226/03, Eur. Ct. Hum. Rts., Jan. 30, 2007, available at http://www.legislationline.org/ legislation.php?tid=1&lid=7475.
156. See McConnell v. FEC 540 U.S. 93, 247 (2003) (Scalia, J., concurring in part, dissenting in part).
157. See Ellen Katz, Reviving the Right to Vote, 68 OHIO ST. L.J. 1163 (2007).
158. See, for example, the role of the Ukrainian Constitutional Court in forcing a showdown with the government over the election rules in 2004. The basic instinct here was well captured by John Hart Ely, who viewed elections cases as "[involving] rights (1) that are essential to the democratic process and (2) whose dimensions cannot safely be left to our elected representatives, who have an obvious vested interest in the status quo." JOHN HART ELY, DEMOCRACY AND DISTRUST 117 (Harvard Univ. Press 1980).
159. The U.S. Supreme Court refused to consider just such an argument in the one case from the early Baker/Reynolds era that was the product of a recent political compromise rather than simply reflecting the dead hand of history. The clearest presentation of this issue is in Lucas v. The Forty-Fourth General Assembly District of the State of Colorado, 377 U.S. 713 (1964).
160. Pildes, supra note 74, at 135-138.
161. "No State shall, without the Consent of Congress,... enter into any Agreement or Compact with another State...." U.S. CONST. art. I, 1§0, cl. 3." The Founders were acutely aware of the need to protect states and their citizens from sister-state aggression; that is why they adopted the Compact Clause... [to protect] comity and equality among the states." Michael S. Greve, Compacts, Cartels, and Congressional Consent, 68 MO. L. REV. 285, 293 (2003).
162. See generally JOSEPH FRANCIS ZIMMERMAN, INTERSTATE COOPERATION: COMPACTS AND ADMINISTRATIVE AGREEMENTS (Praeger 2002).
163. For an extended discussion of this theme, see Samuel Issacharoff & Catherine M. Sharkey, Backdoor Federalization, 53 UCLA L. REV. 1353 (2006).
164. S. AFR. CONST. 1996 §41(1)(g).