Book Review Ordinary People
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ELECTION LAW JOURNAL
Volume 6, Number 1,2007
O Mary Ann Liebert, Inc.
D01: 10.1089/elj.2006.6010
Book Review
Ordinary People
MICHAEL J. PITTS
Spencer Overton. Stealing Democracy: The New cause of gun control. More recently, President
Politics of Voter Suppression. New York: W.W. George W. Bush has paid homage to the fami-
Norton Press, 2006,224 pp., $24.95 (hardcover). lies of Marines killed in Fallujah. At the State
of the Union, Presidents now routinely high-
I N 1986, A WEALTHY thirteen-year-old subur- light the role ordinary Americans play in mak-
ban kid named Trevor Ferrell was spear- ing both the United States and the world a bet-
heading a 250-person operation that brought ter place. Of course, we know these Americans
food and blankets to the homeless of Philadel- probably are not truly ordinary, they are ex-
phia. One day while he was engaging in activ- traordinary; otherwise they would not be in the
ity more common for suburban teenagers- gallery of the United States House of Repre-
playing in his backyard-he received a call sentatives receiving a standing ovation from
from an unlikely venue. It was the White hundreds of the world's most powerful politi-
House. More specifically, it was President cians. But these "ordinary" people help other
Ronald Reagan, calling to ask if Ferrell would ordinary Americans watching the speech put a
make the short jaunt to Washington so that the human face on grand government policies2
President could introduce him during the State George Washington University Law Profes-
of the Union. Ferrell'said yes, and a few days sor Spencer Overton has, jn many ways,
later, President Reagan presented the preco- sheared off a page from the Presidential State
cious youngster to millions of Americans who of the Union playbook in his excellent new
watched the speech on te1evision.l work, Stealing Democracy. Professor Overton
What started with President Reagan's 1981 takes aim at two of the election law issues that
introduction of Lenny Skutnik, a government
worker who watched Air Florida Flight 90
crash into the icy Potomac River and then USA Presidents, State of the Union Address (Feb. 4,
1986), available at (last visited Aug. 7, 2006); CBS
audacious rescue of a flight attendant, has now News.com, American Heroes (June 11, 2004), available at
become de rigeur for presidents delivering their ~http://cbsnews.com/storie~/2004/06/ll/48hours/
rintable622563.shtml> (last visited July 3, 2006).
report Congress' In 19991 President 41999 State of the Union Address, Federal News Service
William Jefferson Clinton introduced hlerica (Jan. 20,1999), availablt at
school gun violence devoted herself to the (last visited Aug. 7,2006); The White House, President Bush
Delivers State o f the Union Address (Tan. 31, 2006) available
at (last visited Aug. 7, 2006);
Michael J. Pitts is an Associate Professor at Indiana Uni- The White House, State of the Union Address (Feb. 2,
versity School of Law-Indianapolis. Thanks to Bob 2005), available at (last visited
and Dan Tokaji for helpful comments. Aug. 7, 2006).PITTS
have consumed academic debate for the last felon disfranchisement (58-59); yet so are
decade: partisanship, both in the designing of leading civil rights organizations, who are
district lines and in election administration, criticized for focusing too much on race
and voting rights for racial and ethnic minori- and ignoring the obvious fact that politi-
ties. He uses stories, a sigruficant number of cal motives also play a role in the disfran-
which involve ordinary people, to make these chisement of minority voters (77-78); and
sometimes academic and legalistic issues ac- the Democratic Party takes it on the chin,
cessible to ordinary Americans. Of course, too, particularly during a lengthy discus-
Stealing Democracy's ordinary Americans are sion of political consultant Michael
also in many ways extraordinary and the book, Berman's role in the partisan gerryman-
while accessible to the non-academic populace, dering of California's congressional and
is not truly written for ordinary Americans, but state legislative districts (17-25).
rather is written for highly educated readers- The book proposes concrete solutions. For
ones who peruse publications like The New York instance, advocating universal voter reg-
Times or Washington Post. istration as a way to eliminate fraud by the
Stealing Democracy introduces ordinary organizations currently conducting voter
American Tanya Thivener, a middle-aged registration drives (166-67) and proposing
mortgage broker who suffered through an in- that state and local governments be re-
terminably long line so that she could cast her quired to publish "democracy statements"
ballot at the November 2004 Presidential Elec- that provide an assessment of the
tion in Ohio (42-43). Stealing Democracy intro- strengths and weaknesses of electoral
duces ordinary American Truong Tran, an practices (63).
eighty-three-year-old Vietnamese resident of a
tiny hamlet on the Gulf Coast of Alabama who In all these ways, Stealing Democracy is far
faced a discriminatory challenge when at- from ordinary; it's extraordinary. But, like
tempting to vote in a town council election everything, it's not perfect.
(75-76). And Stealing Democracy introduces
ordinary American Edna Weddell, a Yankton
Sioux tribal elder who was forced to make two Ordinary People is a 1980 Academy Award
journeys to her polling place in order to satisfywinning motion picture starring Mary Tyler
South Dakota's voter identification require- Moore and Donald Sutherland in which the life
ment (149-50). Stealing Democracy introduces of a quintessentially perfect American family-
all these "ordinary" people with the hope their one that perhaps resides in President Reagan's
ordinary stories will inspire "ordinary" read- shining city upon the hill-becomes shattered
ers to engage in the improvement of American by the death of its eldest son in a sailing acci-
democracy. dent; an accident that the youngest son sur-
Aside from a legal academic actually focus- vives. The reality, though, as we learn toward
ing energy on engaging in a dialogue with or- the denouement of this cinematic tour de force is
dinary Americans, Stealing Democracy is re- that the death of the eldest son may not have
freshing, enjoyable and worthy of praise in been entirely accidental. The reality is that he
many other ways: may well have quit on life.
Opening one's eyes to Life's reality marks an
The book is eminently readable. It avoids important theme of Stealing Democracy, though
jargon and when jargon cannot be Professor Overton uses a more recent Academy
avoided, as when discussing "preclear- Award winning Hollywood blockbuster, The
ance" under Section 5 of the Voting Rights Matrix, to make his point. The main character
Act, explains the jargon in relatively sim- of the film, played by Keanu Reeves, asks the
ple terms (94-96). question: "What is The Matrix?" (13). And
The book has political balance. Republi- while we never really get an answer, it would
cans are taken to task, particularly in the seem that The Matrix is, as Laurence Fish-
discussion of the racial implications of ex- burners character informs us, "the world thatORDINARY PEOPLE has been pulled over your eyes to blind you minority voting rights reflects the democratic from the truth" (12); it is an invisible system events of sigruficance in the middle of the first that is not reality and that controls the lives of decade of the twenty-first century. A compre- people who unquestioningly allow the system hensive campaign finance regime has been en- to control their existence. It is a system that acted into law. In contrast, eliminating parti- gives the appearance of freedom, rather than sanship in election administration and partisan freedom's reality. gerrymandering appears to be a reform bridge Today's American democracy, according to too far, particularly on the latter front where Professor Overton, has Matrix-like qualities. the Supreme Court has declined to enter the Most Americans blithely accept the simplified fray3 and where voters themselves, such as version of the American democratic story: those in California and Ohio, appear less than Everyone has a right to vote, each person has enthused. And while the extension and amend- the freedom to choose which candidate to vote ment of the special provisions of the Voting for, the candidates support popular policies in Rights Act have now been accomplished (they an effort to win the most votes, ballots are cast, had not been at the time of Stealing Democracy's votes tabulated, a winner announced, and publication), survival of some of the Act's core democracy thrives (13). In reality, though, the provisions remains uncertain in the shadow of people are not free, for their preferences are the Roberts Court. guided by "a predetermined matrix of thou- Perhaps, though, the omission of extensive sands of election regulations and practices"- discussion of campaign finance regulation whether it be the questions included on a voter merely reflects the larger problem with the registration form, the type of machinery used analogy to The Matrix. As Professor Overton to record voter preferences, the location of admits at the outset of Stealing Democracy, the polling places, or the boundary lines used to American democratic matrix can never be com- define electorates (14). pletely eliminated (15). Unlike dictatorship, For the most part, Stealing Democracy's anal- democracy will always need some rules and ogy to The Matrix works. American democracy regulations to guide the electoral process. is not simple, feel-good cinema. However, the Whatever the choice of electoral rules, some analogy does not seem to completely hold to- group or entity will seemingly always benefit gether throughout the entire course of the or suffer from the choice. The trick, perhaps an book. In Stealing Democracy, Professor Overton impossible one, is to provide some guidepost advocates the elimination of the portions of the or, in less ordinary and more academic par- American democratic matrix that allow for the lance, theory for distinguishing those regula- entrenchment of incumbent politicians, yet he tory aspects which constitute an improvement also advocates retention of the portions of the to the democratic matrix and those that do not. matrij< that protect minority voting rights. Maybe this is why the theme of The Matrix There is, however, a bit of a tension between becomes less prevalent about a third of the way these two positions with which Stealing Democ- through Stealing Democracy. The opening chap- racy does not adequately deal. ter, How to Rig Elections, discusses the manner Consider first Professor Overton's omission in which politicians use election rules to en- of campaign finance-a subject on which he trench themselves at the expense of ordinary has considerable expertise-from his descrip- voters. The second chapter, Patchwork Democ- tion of the American democratic matrix. In- racy, examines how the democratic matrix gets deed, Stealing Democracy contains virtually no complicated by the vast number of different en- discussion of campaign finance regulations, of tities and partisan officials (federal, state, local) the impact of money on elections, or of the way who play a role in administering and setting in which the system of campaign finance can the ground rules for elections. The theme of The be rigged to advantage or disadvantage partic- Matrix works extremely well here. The Ameri- ular candidates and political parties. Undoubt- edly, Professor Overton's omission of cam- paign finance and focus on partisanship and Vieth v. Jubelirer, 541 U.S. 267 (2004).
PITTS
can democratic matrix is vast, is virtually approach for examining proposals to reform
everywhere, and is manipulated by an equally the democratic matrix. He says elections should
vast and omnipresent number of political elites. be the "tool of average citizens rather than po-
By my count, during the course of these two litical operatives," that the vote "should allow
chapters covering forty-eight pages, Professor a meaningful opportunity for citizens to par-
Overton refers to the "matrix" five times (27, ticipate in government and check politicians,"
36, 46, 48, and 64). that voting should offer a "sense of connected-
The next three chapters, however, shift to the ness to the community and of equal political
topic of voting rights for racial and ethnic mi- dignity and promote broader respect for the le-
norities and the unique role of race in American gitimacy of society's laws" (169).
democracy. The third chapter, Does Race Still This rationale works relatively well when
Matter?, answers the query with a resounding one considers voting in light of what Stanford
affirmative. The fourth chapter, No Backsliding, University's Pamela Karlan has described as
makes the case for renewal of the preclearance the participatory aspect of d e m ~ c r a c yFor
. ~ in-
provisions of Section 5 of the Voting Rights Act. stance, at several points Stealing Democracy re-
The fifth chapter, La Sociedad Abierta? espouses lates stories involving what appear to be bla-
continuation of the Act's minority language pro- tant attempts by local officials to suppress or
visions-Sections 4(e), 4(f)(4), and 203. In all deny the ability of racial and ethnic minorities
these chapters, Stealing Democracy makes the to simply cast a ballot. These anecdotes provide
case for retaining aspects of the democratic ma- more than adequate examples of the Voting
trix that serve td assist racial and ethnic minori- Rights Act working as a part of the democratic
ties in exercising their right to vote. At eighty- matrix to properly restrict "political opera-
four pages, these chapters comprise nearly half tives" who seek to deny average citizens "equal
the book-yet Professor Overton employs use political dignity," and a "meaningful opportu-
of the term "matrix" on only three occasions (83 nity" to "participate in government and check
(twice) and 102). politicians."
What's missing here is a more comprehensive But the rationale works less well when con-
explanation of why the Voting Rights Act can- sidering the Voting Rights Act from an aggre-
not be just as plausibly conceived as a matrix to gation per~pective.~ The Act mandates the con-
manipulate voter preferences as, say, partisan sideration of race and ethnicity in districting.
gerrymandering and that conception is not lim- District lines are drawn to achieve a particular
ited to the occasional, out-of-the-ordinary par- electoral goal-to allow minority voters the
tisan preclearance decision by politicos in the ability to elect candidates of their choice, can-
United States Department of Justice, such as the didates who almost invariably will be of the
post-2000 Mississippi congressional redistrict- same race or ethnicity as those minority voters.
ing f i a ~ c oIt. ~includes large-scale policy deci- Might not some suppose that such manipula-
sions involving minority voting rights. Indeed, tion removes power from average citizens,
the recent extension of the Act's special provi- places power in the hands of political elites,
sions with nearly unanimous Republican Sen- lessens the probability that average citizens can
ate and House support could be viewed as con- check the politicians elected from those dis-
tributing to the manipulation of voter tricts, and reduces the connectedness of non-
preferences in a partisan way, most notably by minority voters who reside in those districts?
reason of the amendments to Section 5 revers- To be fair, Professor Overton does not com-
ing a couple of Supreme Court decisions that
appeared to benefit the Democratic Party.6
Professor Overton's overall, comprehensive "Open Society."
Samuel Issacharoff, Is Section 5 of the Voting Rights Act
mantra for separating the positive portions of A VictimofIts Own Success?, 104 COLUM. L. REV.1710,1714
the matrix from the negative seems to be a (2005).
Lemon-esque Power to the People-let the peo- Georgia v. Ashcroft, 539 U.S 461 (2003); Reno v. Bossier
ple decide, instead of political elites (16). Steal- Parish Sch. Bd., 528 U.S 320 (2000).
Pamela S. Karlan, The Rights to Vofe: Some Pessimism
ing Democracy's conclusion offers a paragraph . REV.1705,1709-12 (1993).
About Formalism, 71 T E XL.
laying bare Professor Overton's comprehensive Id. at 1712-16.ORDINARY PEOPLE 117
pletely ignore the tension between decrying a well to read Stealing Democracy and it is also
complicated democratic matrix designed to worthy of assignment to students in either an
thwart the true preferences of voters and ad- election law seminar or political science course
vocating portions of the matrix that might be focused on the law's impact on the political
similarly characterized. He says the demo- process. Ultimately, though, Professor Overton
cratic matrix needs to be redesigned to in- hopes to reach the students more than their in-
clude people of color because race is different structors. Students and other educated read-
for many reasons (79-83). So manipulations ers-ordinary people-are the target audience.
of the matrix designed to benefit minority And, in the end, he's not just asking these folks
voters are positive. Of course, such a view in- to read a couple of hundred pages. Rather, he's
exorably leads to the academic debate about urging them to go forth and do something-to
how easy it is to identify which electoral out- exercise greater vigilance in protecting the
comes present a net positive for minority vot- most basic of rights in a democracy, the right
ers-substantive outcomes or descriptive out- to freely cast a ballot for the candidate of one's
comes-a debate Stealing Democracy does not choice. In a sense the book is Professor Over-
address. ton's personal get out the vote effort, but on a
Although the book might have benefited higher plane.
from a more detailed and extended explanation Stealing Democracy's conclusion intends to in-
of how one is to separate the positive from the spire. Here the reader meets an ordinary
negative portions of the American democratic rancher from Nebraska who worked to repeal
matrix, this is a minor problem. It may well be the state's ban on voting by ex-felons; an ordi-
impossible to come up with a comprehensive nary college student from Memphis who has
theory to distinguish between various portions worked to register young voters; an ordinary
of the matrix. The American democratic matrix lawyer from Florida who serves on the national
does-and needs to-represent trade-offs be- board of the League of Women Voters; an or-
tween various contestable values such as po- dinary pastor from North Carolina who estab-
litical competition, equality, respect for major- lished a multiracial organization to open
ity preferences, and protection of discrete and democracy up to the poor and the working-
insular minorities. Rather than grand theory, class; an ordinary stay-at-home mother active
election law issues may need to be viewed from with Common Cause; and an ordinary Mexi-
a more contextual perspective. can-American immigrant w h directs~ state and
And the lack of a more detailed and extended public policy for National Council of La Raza
explanation of the rationale for separating the (172-84). These ordinary people from around
"good" from the "bad" portions of the matrix the nation have made the commitment to rec-
also does not lend much insight into the sound- ognizing reality and improving the American
ness of the specific positions taken in Stealing democratic matrix.
~emociacy.For Professor Overton is correct that Only time will tell if ordinary readers of
the worst aspects of partisan gerrymandering Stealing Democracy will be moved to make a
should somehow be redressed, that race still similar commitment. They should be.
matters in American politics, and that the Vot-
ing Rights Act still has a worthy role to play in
fostering the participation of racial and ethnic
minorities in American democracy. Perhaps, Address reprint requests to:
too, the lack of a detailed and extended expla- Mike Pitts
nation fits nicely and intentionally with Stealing Indiana University School of Law-lndianapolis
Democracy's target audience. Unlike academics, Lawrence W. Inlow Hall
ordinary people don't need detailed explana- 530 West New York Street
tions of theoretical frameworks. In fact, ordinary Indianapolis, IN 46202
people, for better or worse, seem to shun them.
E-mail: mjpitts@iupui.edu
Academics devoted to election law would doYou can also read
