Justice Thomas Thinks America Is Too Democratic. He Has A Shockingly Radical Plan To Fix It.

CREDIT: AP PHOTO/CHARLES DHARAPAK
CREDIT: AP PHOTO/CHARLES DHARAPAK

The problem with American democracy, according to Justice Clarence Thomas, is that state governments don’t have enough power to manipulate it in order to make some people’s votes count more than others. That’s the theory Thomas laid out Monday in an opinion joined by no other justice.

If Thomas’ views had prevailed, the doctrine of one person/one vote, which prevents states from drawing legislative districts with wildly divergent populations, would be eliminated. Many states could potentially return to a system where voters in some areas had 10, 20, 30 or even 40 times as much representation as voters in other parts of the state.

Justice Thomas offered this view in an opinion concurring in the Court’s judgment in Evenwel v. Abbott. Evenwel was an effort by a leading conservative activist to change the rules governing legislative redistricting in a way that would hurt many Latino communities and benefit many white communities. This effort failed, with all eight justices rejecting this attempt to change the rules.

Thomas, however, rejected the plaintiffs’ arguments in Evenwel because he believed that states should have much broader power to draw legislative lines as they choose, even if doing so would produce grossly undemocratic results. He begins by claiming that “this Court has never provided a sound basis for the one-person, one-vote principle,” and then spends the bulk of his opinion arguing that this principle should be abandoned.

For Thomas, ensuring that every citizen’s voice counts equally at the polls is like something out of Soviet Russia.

The Court recognized the one person/one vote principle in the 1960s in a series of decisions involving states with grossly malapportioned districts. In one particularly egregious case, only about a quarter of Alabama residents lived in districts represented by a majority of the members of the state senate. Voters in the most populous district effectively had only 1/41st as much representation as voters in the least populous district. This, according to the Court’s decision in Reynolds v. Sims, is not permitted by the Constitution.

Current doctrine typically prevents states from drawing districts where the population deviates by more than 10 percent across districts.

Thomas’ Evenwel opinion argues that states should be allowed to return to the old days, when a vote in one part of the state counted only a little more than 2 percent as much as a vote in a different part of the state. “The Constitution lacks a single, comprehensive theory of representation,” Thomas claims, noting that the framers of the original Constitution “struck a compromise between those who sought an equitable system of representation and those who were concerned that the majority would abuse plenary control over public policy.” As Thomas notes, “the original Constitution permitted only the direct election of representatives. Senators and the President were selected indirectly. And the ‘Great Compromise’ guaranteed large and small States voting equality in the Senate.”

The conservative justice is, indeed, correct that the original Constitution was a stunningly anti-democratic document. Many remnants of its least democratic elements remain in effect today. Most notably, because the U.S. Senate is malapportioned to give two senators to each state regardless of how many people live there, a vote in Wyoming effectively counts just as much as 66 votes in California.

But Thomas’ opinion spends so much time discussing the original Constitution that he barely even acknowledges the fact that the Constitution has been amended.

After the Civil War, the states ratified the Fourteenth Amendment. Thomas apparently views this as an insignificant event, at least when it comes to redistricting. “None of the Reconstruction Amendments changed the original understanding of republican government,” Thomas writes. Though he does conclude that “the Fourteenth Amendment pressured States to adopt universal male suffrage by reducing a noncomplying State’s representation in Congress,” and he also agrees that this amendment “brought blacks within the existing American political community,” Thomas claims that “that is as far as those Amendments went.”

This view is wildly out of step with the prevailing understanding of the Fourteenth Amendment, which provides that no state may “deny to any person within its jurisdiction the equal protection of the laws.” This promise of equality is the basis for the one person/one vote doctrine. A voter in one part of the state cannot be given inferior voting rights to a voter in another part of the state.

Asking malapportioned lawmakers to decide whether to continue malapportionment is a bit like polling billionaires on whether their fortunes should be taxed.

Thomas rejects this widely accepted reading of the Constitution, claiming that “in embracing one person, one vote, the Court has arrogated to the Judiciary important value judgments that the Constitution reserves to the people.” Yet, if the decision whether to give some voters more representation than others is truly left “to the people,” then it is far from clear how the people are supposed to change the way legislative districts are drawn if they decide to move towards a more equal system. Voters in district with many times more voting power than voters in other districts are unlikely to give their added power away lightly — and their representatives are even more unlikely to vote for a redistricting scheme that could put themselves out of a job. Asking malapportioned lawmakers to decide whether to continue malapportionment is a bit like polling billionaires on whether their fortunes should be taxed.

Indeed, Thomas’ opinion seems to suggest that billionaires should have an outsized voice in the nation’s political disputes. The justice criticizes the one person/one vote doctrine because he believes that it is “driven by the belief that there is a single, correct answer to the question of how much voting strength an individual citizen should have.” Such an assertion, Thomas claims, “overlook[s] that, to control factions that would legislate against the common good, individual voting strength must sometimes yield to counter majoritarian checks.”

As a sign of what sort of factions Thomas finds needing of control, and which “counter majoritarian checks” he deems necessary, Thomas offers a theory of the Constitution that closely resembles a theory a libertarian group funded by the billionaire Koch brothers tried to teach to school children. “Of particular concern for the Framers was the majority of people violating the property rights of the minority,” Thomas writes. Elsewhere in his opinion, he suggests that states may want to set redistricting rules that give an advantage to one side in disputes that “pit urban areas versus rural, manufacturing versus agriculture, or those with property versus those without.”

In case there are any doubts where Thomas’ sympathies lay, he closes his opinion with a flourish. “The Constitution,” Thomas claims, “did not make this Court ‘a centralized politburo appointed for life to dictate to the provinces the ‘correct’ theories of democratic representation, [or] the ‘best’ electoral systems for securing truly ‘representative’ government.’’”

For Thomas, ensuring that every citizen’s voice counts equally at the polls is like something out of Soviet Russia.