If Bush v. Gore was not proof enough that the Supreme Court is now the judicial arm of the Republican Party, Citizens United v. Federal Election Commission should erase any doubts. The 5-4 decision this past January, which overturned a century of statutory and judge-made law, freed corporations to draw on the trillions of dollars in their treasuries to back their Republican allies and overwhelm the opposition. What John Marshall called an "artificial being" now has the power to influence election outcomes far beyond that of any natural person.
Unfortunately, Bush v. Gore and Citizens United don’t stand alone. The past ten years have seen a series of decisions tilting the electoral playing field toward the Republicans, all of which violated established legal and constitutional principles.
As James Madison foresaw, democratic politics is shaped by a continuing struggle between the haves and the have-nots. The former have the money but the latter have the numbers, and in a democracy, numbers are what is supposed to count. The Republican Party, the political organ of the haves, has therefore adopted a two-part strategy: the first part calls for efforts to reduce the have-nots’ share of the overall population, which determines the composition of the House of Representatives, as well as their proportion of the voting population; the second part of the strategy is to spend massive amounts of money to dominate the public debate.
The Constitution requires an "actual Enumeration" of the population every ten years, after which "Representatives shall be apportioned among the several States according to their respective numbers"; a similar enumeration is used for allocating federal dollars to states and localities. The problem is that even with the most advanced canvassing and mail techniques, the census undercounts minorities, the poor, immigrants, children and renters, the eligible voters among whom generally vote Democratic. In 1990, the census missed more than five million people—mostly immigrants and urban minorities, including 4.9 percent of all Hispanics and 4.6 percent of all blacks—while double-counting numerous whites.
Modern statistical sampling techniques make possible a more reliable count, so for the 2000 census the bureau proposed to sample a small segment of the population to supplement the traditional methods. That would have added millions of people, most of whom would almost certainly be from Democratic areas. This obviously did not sit well with Republicans and to prevent any sampling, the Republican-controlled House of Representatives filed suit in 1998.
Writing for the Court’s five right-wing justices, Justice Sandra Day O’Connor admitted that two recent Census Act amendments could easily be read to authorize sampling. In fact, that was the only reading that reconciled the two provisions. Nevertheless, she looked to prior practice and Congressional attitudes going back over 200 years—even though accurate survey techniques are relatively new—and barred sampling for legislative apportionment. The Court thereby forced the bureau to use a method for deciding who would govern the nation that everyone knew would produce an inaccurate result, hardly what the framers could have wanted.
The result of the 2000 census was preordained: after the census was taken, a 2003 study by the bureau concluded that the official numbers missed some 628,000 blacks and 248,000 Hispanics and overcounted 2.15 million whites. And because sampling is still forbidden, the 2010 census is equally likely to undercount these same groups, especially immigrants who in today’s toxic anti-immigrant atmosphere avoid contact with any government agency. States with large minority and immigrant populations will thus have substantially less representation in Congress than they are entitled to.