All posts by Franita Tolson

Tolson on Amicus, On the Issues Podcasts

This week, I joined Slate’s Dahlia Lithwick on the Amicus podcast to talk about the Alabama redistricting decision, Merrill v. Milligan. The episode, “Politics Masquerading as Law” is available here.

I also had the pleasure of talking Supreme Court appointments on the podcast, On the Issues with Michele Goodwin. Such a terrific conversation featuring an all star cast including Zinelle October, Steve Vladeck, and Dean Danielle Holley-Walker. The episode, “Road to Confirmation: Biden Promised a Black Woman Supreme Court Nominee. Now What?” is available here.

Such a delight to engage with brilliant minds on important issues. Check them out!

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Downloads of the Year – Legal Theory Blog

On the Legal Theory Blog, Larry Solum posted his “Downloads of the Year,” and I am happy that my essay, “‘In Whom is the Right of Suffrage?’: The Reconstruction Acts as Sources of Constitutional Meaning” made the list. It is an honor for this piece, which I took such joy in writing, to be counted among some really terrific legal scholarship, and I am grateful.

In the waning days of 2021, I also posted another article, “Countering the Real Countermajoritarian Difficulty,” which is a response to Professor Pam Karlan’s Jorde lecture. There are some really terrific exchanges that are worth reading (as Nick notes here). The abstract for my contribution is below:

In her Jorde lecture, Professor Pamela Karlan persuasively argues that the countermajoritarian difficulty in the American political system does not solely lie with the courts and the process of judicial review, but is also structural and endemic to the U.S. Constitution. There are countermajoritarian aspects of our Constitution, namely the Senate and the Electoral College, which frustrate the process of achieving a true majoritarian democracy. As Professor Karlan shows, these structural elements have interacted with demographic changes in which geographically concentrated majorities have less power than their rural counterparts, producing another period of minority retrenchment in our political system that has been enabled by the U.S. Supreme Court. Consequently, legislation is not always a product of democratic majorities because the institutions enacting legislation are structurally countermajoritarian.

This short essay builds on Professor Karlan’s argument that the problem of countermajoritarianism has not been unique to the courts, but does so by taking a slightly more extreme position. In my view, the courts rarely face any countermajoritarian difficulties precisely because American democracy has always been an ongoing project that has never been perfected and has been subject to setbacks resulting in lost progress towards a majoritarian ideal. The idea that judicial involvement should be tempered by concerns that courts are acting counter to democratic majorities has been, and remains, illusory.

This essay discusses one such incident—Dorr’s Rebellion—to show how the political branches have often abdicated their responsibilities to protect both republican and democratic ideals in service of some other cause. In the case of Dorr’s Rebellion, that cause was slavery. Disenfranchised Rhode Islanders challenged political elites to create a more representative electorate; however, they were defeated in these efforts despite the gap between Rhode Island’s political system and the ideal of republican government that existed at the time. The Supreme Court, in Luther v. Borden, failed to police the political branches in a dispute that presented an actual countermajoritarian difficulty. Luther has always loomed large, forcing the Court to look for new and creative ways to address political lockups to avoid its holding, as was true in Baker v. Carr and the other reapportionment cases of the 1960s.

Indeed, the difference between the reapportionment cases and Rucho v. Common Cause, the recent case holding partisan gerrymandering claims to be nonjusticiable, is that, in the reapportionment cases, the Court rejected the path set by Luther v. Borden and recognized that the political institutions representing the people had indeed become countermajoritarian. In contrast, the Rucho majority adhered to Luther, which has, for over a century and a half, embraced a rule of justiciability that has served as a vehicle to give legal effect to a countermajoritarian difficulty that has infrequently existed inside the courts but has been fairly plentiful outside of them. In reality, the judiciary is best equipped to determine the scope of its involvement in the political thicket, a fact that even Alexander Bickel recognized over fifty years ago, as opposed to relying on the countermajoritarian difficulty as a reason, in and of itself, to justify staying its hand.

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New essay alert: “In Whom is the Right of Suffrage?”

This is my first blog post on ELB, and I couldn’t be more excited to be a part of the revamp. I am a devout reader of the blog and very much appreciate the hard work that Rick has put in to provide this outlet for the election law community.

I wanted to blog a bit about an essay that I wrote for the joint “Reckoning and Reformation” symposium (which was graciously hosted by a number of law reviews) that I am super excited about. My contribution, forthcoming in the University of Pennsylvania Law Review, is entitled “In Whom is the Right of Suffrage?: The Reconstruction Acts as Sources of Constitutional Meaning.” It is on ssrn, available here:

The essay (which is short!) looks at the Reconstruction Acts that readmitted the former confederate states back into the union during Reconstruction. Scholars have long argued that these acts, which imposed certain limits on these states as a condition of readmission, are legally unenforceable, but my essay argues that the statutes still have implications for how we think about voting rights today.

Importantly, the Acts imposed limitations on southern states with respect to the voting rights of their citizens, stating that they could only disenfranchise individuals for felonies at common law. This language sheds light on the reach of the reduced representation provision of Section 2 of the Fourteenth Amendment and, importantly, the universe of crimes for which one can be disenfranchised consistent with the republican guarantee of Article IV, Section 4. Section 2, in particular, allows Congress to reduce a state’s delegation in the House of Representatives by removing disfranchised voters from the basis of population used for apportionment, but permits states to disenfranchise individuals “for participation in rebellion or other crime.”

Clarifying Section 2, the Reconstruction Acts specify that these states can disenfranchise their residents only for crimes “as are now [1868] felonies at common law” and not for the wide range of crimes that are currently used to disenfranchise individuals in all southern states. In other words, when states disenfranchise their citizens in violation of Section 2 and the Guarantee Clause, as informed by the Reconstruction Acts, these violations constitute an abridgment of the right to vote and render their governments unrepublican in form.

This essay has obvious implications for Florida’s felon re-enfranchisement provision (SB 7066), which requires individuals to pay all fines and fees before they can regain their right to vote after a felony conviction. In Jones v. DeSantis, the 11th Cir upheld SB 7066, but there is no mention of the 1868 Reconstruction Act in the court’s opinion, which upheld the law on the grounds that paying all fines and fees is “highly relevant to voter qualifications.” However, the fact that people are impermissibly disenfranchised for crimes that were not felonies at common law, as specified by the Reconstruction Act readmitting Florida into the union, means that the requirement cannot be relevant to voter qualifications and therefore makes SB 7066 a poll tax.

I hope that you enjoy this short read! Comments are welcome!

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