The following is the latest edition to our Race and the Supreme Court program, an essay by Kareem Crayton, a professor of law and political science at the University of Southern California Law School. Professor Crayton is an expert on election law and voting rights, and his current work focuses on the renewal of the Voting Rights Act.
People who know something about Powell v. McCormack may recall that the case stands for principles about the structure of government. Most law professors who teach Powell usually mention the case in passing, either (1) to emphasize judicial authority to prevent other branches from arbitrarily applying their rules or (2) to demonstrate how close textual formalism can inform the interpretation of constitutional provisions defining our political institutions.
While it clearly has constitutional dimensions, Powell offers additional lessons about elections, race and politics in the modern era. Indeed, I shall discuss how this case is something of a template for the Court's management of political power in representative institutions.
Some background is in order: It's easy to overlook the significance of this 1969 decision since the Court was quite busy deciding other seminal cases. Compared to Allen v. State Board of Electors (one of the Court's first major interpretations of the Voting Rights Act), for example, the legal issue and holding in Powell seem relatively minor. On its face, the original lawsuit in Powell involves an incumbent's attempt to serve in a Congressional office for which he was duly (re)elected but never sworn in. But there is more to the story.
The once and possibly future congressman in this case was Adam Clayton Powell, Jr. of New York, a political titan since the New Deal era and the most influential black elected official of his time. Over three decades, Powell blazed the career path for outsider candidates (especially black ones) seeking elected office. Starting from a Harlem church-based constituency, Powell entered city politics as a voice for black New Yorkers seeking influence within the Tammany Hall machine. He rose to national prominence championing issues important to blacks beyond the borders of his congressional district.
Years before anything like Congressional Black Caucus existed, Powell forced several racial justice issues onto the legislative agenda. His campaigns included sponsoring a criminal anti-lynching law, a bill to desegregate the military, a proposal to deny federal funding to states with racially segregated schools, and challenging union practices that denied employment opportunities to blacks.
Powell exhibited dual elements of black political leadership. He was rebellious and, at times, controversial; however, he also was savvy enough of an insider to wield power in the smoke-filled room. In the height of the Jim Crow era, Powell possessed a legendary skill for utilizing (some say manipulating) committee procedure to win support for his pet projects and to kill bills that he opposed. His anti-segregation bills rarely passed because of Southern "Dixiecrats" who controlled the party caucus, but some of Powell's ideas succeeded because of alliances with white liberal and populist Democrats. As Powell gained seniority, this coalition helped him become chairman of the powerful Education and Labor Committee.
These achievements, though, were marred by Powell's private flaws and public excesses, some of which led to his expulsion from office in 1966. A House investigation produced evidence of Powell's financial improprieties, and the membership agreed to remove him from office. The legal matter in Powell v. McCormack arose once the voters of New York's 18th Congressional District resoundingly returned Powell to Washington, D.C. in a special election. Powell won more than 86% of the vote, but the House leadership adopted a new resolution to exclude Powell from being sworn in. The Congressman and several of his constituents later sued in federal court to order his installment.
The Supreme Court affirmed that the House could not block Powell from being seated unless he was unqualified for the office, based solely on factors detailed in Article I of the Constitution. As straightforward as the holding appears, the Court's underlying reasoning reveals much about how the Court addresses race and politics today.
The first lesson has to do with when the case reached the Court "“ about two years from when the House excluded Powell after the special election. This timeline highlights an almost-universal truth for election law scholars: the judiciary can be an especially slow institution for handling election-related grievances. The worlds of politics and law, while overlapping, generally work on different time frames. Trials and appeals can take years to complete, and many of the underlying issues can become moot due to expired terms of office or rapidly changed circumstances (you've heard the line before: "A day/week/month is a lifetime in politics").
A modern example of this dynamic is the litigation over legislative redistricting, which often forces courts to deal with time-related pressures. The final resolution of a district map can take a decade after the initial plan is adopted "“ just in time for a new round of redistricting. Similar problems exist with legal efforts to enjoin certain polling practices on Election Day "“ the voting may be over before the court even hears the claim. In Powell, the Court did not deliver its final opinion in this case until 1969 "“ just months before the disputed Congressional term was to end. As Rick Hasen has argued at some length, courts will be ineffective for resolving live election disputes without clear, predictable standards for when they should hear cases.
Speaking of mootness, a second distinct lesson from Powell relates to how the Court actually arrived at the merits of this claim. The House leadership argued that since the legislative session would end before any judicial order could issue, there was no live controversy due to mootness. In rejecting this proposition, the Court made a peculiar move that highlights a major tension between personal and aggregate legal interests. Powell remained viable because the Congressman sought back-pay for the salary lost while he was excluded. Notwithstanding the end of the session, the equitable remedy claim survived. One might explain this point as mere procedural artifice, but much of the Court's opinion focuses the harm committed by Congress in terms of Powell's injury — not the denial of his constituency's political preferences.
This move underscores another important problem that endures in election law. An individual interest of an elected official (in Powell, a financial one) seemed to eclipse the representational group interests of the New Yorkers whose rights were actually contemplated in Article I. The interests ultimately aligned in Powell, but this same tension can prove a thorny matter when they do not. This dynamic is not uncommon in election cases, including Voting Rights Act challenges (when courts must decide if black politicians have divergent political goals and preferences from those of their constituents) or in partisan post-election challenges. In Bush v. Gore, for instance, the strategic concerns of the Democratic and Republican nominees for President often displaced the distinct concerns of voters in determining the number of challenged counties where balloting was in dispute. Since distilling these interests can be difficult, these divergent interests can sometimes result in a remedy that disserves an important stakeholder.
Finally, the most critical lesson to draw from the opinion in Powell is what the majority never addresses in this case "“ the issue of race. The majority opinion reads like a standard historical analysis of the Founding that supports a particular interpretation of Article I. But missing from the opinion are the facts that Representative Powell was a black man and that the matter of race had surfaced repeatedly at the various stages leading to his attempted ouster. One also might easily miss that this case itself is heard on the heels of the King assassination, in the thick of Black Power Movement, and involves a legislative district that is almost 90% black. Whether Powell remained a voice in Congress was important to the voters of Harlem, and likely also to voters nationwide. As the very rich separate opinion penned by Justice Douglas shows, these points all are far from extraneous.
Despite the Court's effort to ignore it, the influence of race is undeniable throughout this entire affair — up to and including the Supreme Court's proceedings. In the investigative hearings in the House, for example, Representative Powell claimed (with some legitimacy) that he was being treated differently from other white members who had engaged in similar fiscal improprieties but never were punished. Other members had proposed the less onerous punishment of censuring Representative Powell, but those efforts failed on a floor vote "“ largely rejected by white Southern Democrats. Representative Powell therefore concluded that the entire House investigation amounted to a conspiracy "against black political leadership, black people and the black press." No doubt that this claim was at least partly reflected in the overwhelming vote for Powell in the special election.
Similarly, racial fairness concerns were evident in the Court's proceedings as well. Counsel for the petitioners began their argument by questioning the legitimacy of any official decision that effectively denied full representation to a majority-non-white electorate. Additionally, the Court took great issue with counsel for the House leadership, who maintained that any challenge of its decisions was barred by the Speech and Debate clause. The obviously skeptical justices pressed counsel on whether clearly race-based votes in the House to remove a Congressman from office were beyond review. Justice Fortas, for example, asked whether the ouster of ten Congressmen would be actionable even if all of them were black (to this, the counsel offered a lukewarm no). Presaging its later inquiries into the concept of mixed motives, the Justices even explored the legal consequences in the event that race had been among the different reasons for the House deciding to exclude a member.
With so much attention, why were none of these issues explored in the final opinion? Perhaps one reason the majority opinion relied so heavily on structure is that a discussion of racial intent presented too many minefields. As later courts have learned, so much of our politics have racial dimensions that any serious effort to regulate it would be a fool's errand.
This problem is well illustrated by the conceptual difficulties that the Supreme Court later faced with its line of racial gerrymandering cases. In Shaw v. Reno, the Supreme Court embarked on a project of eliminating the influence of race in district line drawing. There, the Court denounced any legitimate basis for a legislature deciding to classify voters into districts using race "“ whether it is the sole or predominant concern. However, several subsequent cases demonstrated the inherent difficulties in applying a uniform standard for an unwarranted attention to race. Once it confronted the fact that race remains an element of political identity in some communities, the Court devised a more flexible standard to permit districts where race stands in as a proxy for more traditional considerations.
The people of Harlem ultimately retired Congressman Powell in a Democratic primary in 1970. As Charlie Rangel "“ his upstart replacement — may himself learn the hard way, the electorate eventually renders its own judgment about candidates "“ regardless of racial concerns. In all, the outcome of Powell reaffirms that the idea that voters themselves should remain sovereign in the regulation of a democratic system.