Democracy and Demography
Paul Schiff Berman,* Neal S. Mehrotra ** & Kathryn C. Sadasivan *** | 24.4 | Article | Citation: Paul Schiff Berman, Neal S. Mehrotra & Kathryn C. Sadasivan, Democracy and Demography, 24 U. Pa. J. Const. L. 766 (2022).
American democracy is under siege. This is so because of the confluence of three trends: (1) demographic change and residential segregation, which increasingly have placed more racially diverse Democratic Party voters in cities and suburbs, while rural areas have become more white and Republican; (2) a constitutional structure—particularly the Electoral College, the composition of the Senate, and the use of small, winner-take-all legislative districts—that gives disproportionate representation to rural populations; and (3) the willingness of this rural Republican minority to use its disproportionate power to further entrench counter-majoritarian structures, whether through extreme partisan gerrymandering, increased voter suppression efforts, court-packing, or outright rebellion against the results of democratic elections. These three trends together pose an existential threat to the whole idea of democratic self-governance. Indeed, the very viability of the Republican Party as a national political force now depends almost completely on counter-majoritarian structures.
Thus, we face the very real prospect that for the foreseeable future a mostly white rural Republican minority wields disproportionate, structurally locked-in, power over a more diverse urban and suburban Democratic majority. A democracy cannot survive long under those conditions. Indeed, it is perhaps not surprising that Republicans appear to be less and less committed to majoritarian democracy altogether. In order to rescue the possibility of democratic self-government, we need an all-hands-on-deck response, and part of that response relies on the judiciary. In particular, we argue that both state and federal judges must begin to apply heightened scrutiny to legislation or executive action that seeks to entrench the political power of a rural electoral minority or that discriminates against urban and suburban populations. Such legislative and executive action defiles the democracy and impedes political participation by locking in the power of a minority faction of the country.
This Article therefore makes the case for heightened judicial scrutiny in order to protect democratic processes against partisan and discriminatory entrenchment. In making this argument, we seek to revive the political process rationale for heightened judicial scrutiny that has long been associated with constitutional scholar John Hart Ely and his interpretation of Chief Justice Stone’s famous footnote 4 of the decision in United States v. Carolene Products Company.
***
* Walter S. Cox Professor of Law, The George Washington University.
** Law Clerk, U.S. District Court for the Middle District of Alabama.
*** Redistricting Counsel, the NAACP Legal Defense Fund.