The Durability of Colegrove v. Green

Abstract

A certain tendency to animism affects lawyers when they talk about cases, and they communicate it to interested laymen. Animated cases rise, struggle, and conquer, or are vanquished by, other cases. And so Baker v. Carr I is thought to have vanquished Colegrove v. Green.2 But caution is advisable. The millenium has not arrived for urban voters. A crack in judicial gate that should not have been closed in Colegrove v. Green has now been pried open, but gate has not swung on its hinges. Urban voters will snatching defeat from jaws of victory if they now concentrate all their energies on law suits and focus their hopes of ultimate success on judiciary. Baker v. Carr has made clear what decision in Colegrove v. Green was not, and should never have been thought to be. Colegrove did not hold that Court may never interfere with election process, or that there are no judicially enforceable constitutional principles that apply to elections. For Court has interfered consistently for some fifty years to enforce fifteenth amendment's guarantee that the right of citizens of United States to vote shall not denied or abridged by United States or by any State on account of race, color, or previous condition of servitude.8 Nor-though a passage in Mr. Justice Frankfurter's opinion does tend in this direction 4-can Colegrove rest on proposition that Constitution, properly interpreted, confides to Congress exclusive authority to regulate congressional elections. For plainly fifteenth amendment cuts across any such exclusive authority, and as a matter of textual interpretation, there is no readily apparent reason why fourteenth amendment's guarantee of equal protection of laws should not similarly cut across and similarly authorize judicial intervention. To sure, Constitution specifically empowers Congress to make or alter regulations about times, places, and manner of holding elections for Senators and Representatives, and it confers upon Congress duty to apportion representatives among States according to their respective Numbers, and to be Judge of Elections, Returns and Qualifications of its own Members. But there is no textual reason why these duties and functions of Congress