Bertrall Ross, Who Studies Why People Lack Power in Democracy, To Join Faculty

Bertrall Ross, whose work explores why marginalized people lack power in U.S. democracy, will join the University of Virginia School of Law faculty in the fall.

A former visiting professor at the Law School, Ross comes from the University of California, Berkeley, where he serves as Chancellor’s Professor of Law and teaches Constitutional Law, Election Law, and Legislation and Statutory Interpretation, among other courses. In addition, as part of Berkeley’s Othering & Belonging Institute, he is the chair of the diversity and democracy cluster, which has hosted high-profile discussions on such topics as reparations and election integrity and fairness.

This year, he won the law school’s annual Rutter Award for Teaching Distinction.

“I’m a bit more informal and less hierarchical,” said the professor, who earned his J.D. from Yale Law School. “I like to be collaborative and engaging, and make students feel comfortable.”

That spirit of egalitarianism is also central to Ross’ scholarship. The main theme in his work is the “vicious cycle of marginalization,” he said.

One of the ongoing questions he has contemplated is how poor people might participate more in democracy, since they stand the most to gain. He suggests an overarching solution, and some possible related strategies, in “Addressing Inequality in the Age of Citizens United,” published in 2018 in the New York University Law Review.

“The ideal solution to this form of political inequality is to induce the participation of the poor and enhance their engagement with elected officials through campaign mobilization,” he writes in his abstract. “Mobilizing the poor would not only increase the proportion of the poor in the electorate, but more importantly, would change how representatives perceive the electorate and its demands for redistribution.”

In a 2019 article, “Passive Voter Suppression: Campaign Mobilization and the Effective Disfranchisement of the Poor,” Ross and co-author Douglas M. Spencer argue in the Northwestern University Law Review that voter suppression laws pale in comparison to the damage done by campaigns choosing not to make contact with the impoverished.

The authors used statistics gleaned from Barack Obama’s 2008 and 2012 presidential campaigns, and other data, to demonstrate a “calculus of contact” that largely neglects the poor during outreach efforts.

“In our view, the most significant voter suppression tactics of the twenty-first century are therefore not what legislatures are doing, but what campaigns are not doing,” the co-authors write.

They suggest that if all states implemented automatic voter registration, while in some cases expanding, in other cases controlling information about voters (such as an infrequent voting history), the changes could be transformative.

Ross also co-authored, with Su Li, the influential paper “Measuring Political Power: Suspect Class Determinations and the Poor,” published in the California Law Review in 2016. A “suspect class” refers to a group — such as the poor — that may be the subject of state discrimination in violation of equal protection doctrine. Under modern judicial interpretation, courts apply strict scrutiny to challenged laws only when groups lack the political power necessary to defend themselves through democratic politics.

Yet, in more than 40 years, the Supreme Court hasn’t determined a suspect class because they could not identify instances in which a group hasn’t been the beneficiary of favorable democratic legislation.

Ross points out that favorable legislation is not always the product of an affected group’s influence, however. Another group could be advocating in their favor because the change helps their own cause, or out of moral or ideological motivations.

“The war on poverty was based, in large part, on moral concerns,” he observed.

Despite numerous laws that put undue burdens on the poor and other groups in Ross’ view, he thinks the court has been reluctant to invoke strict scrutiny because “they would have to intervene quite a bit in democratic politics.” Still, he noted, “The court has shown increased interest to protect religious groups and wealthy groups.”

The scholar is currently evolving his work in the interest of building new legal frameworks that he hopes will enable the poor in the future.

Ross holds an appointment to the Administrative Conference of the United States, which recommends improvements to administrative processes and procedures, and is a member of the Presidential Commission on the Supreme Court, which will provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform. (Professor Caleb Nelson is also a member.)

The author of numerous other articles, book chapters and encyclopedia entries, Ross is a recent winner of the Berlin Prize from the American Academy in Berlin. As a fellow in either the fall of this year or spring of 2022, Ross will address the academy regarding his research on the 15th Amendment.

Dean Risa Goluboff said she is a fan of Ross’ scholarship and assigns “Measuring Political Power” in her teaching.

“Bertrall’s writing on suspect classes is essential reading for my students, especially because it opens up new space for thinking about constitutional doctrine and theory,” Goluboff said. “His insights about how disadvantaged groups interact with the electoral system, and why they so often don’t, are one of the many reasons why I am thrilled for him to join the faculty.”

Professor Michael Gilbert, an elections expert and UVA Law’s next vice dean, led the recent faculty recruiting effort. He celebrated Ross’ decision to join.

“Bertrall Ross is an outstanding scholar focused on voting rights, representation and others pressing issues in American democracy,” Gilbert said. “He’s also an excellent teacher and as warm and kind a person as anyone you’ll meet. I’m thrilled to have him join our community.”

In addition to his law degree from Yale, Ross also earned an M.P.A. from Princeton University and an M.Sc. from the London School of Economics. He earned his undergraduate degree, a B.A., from the University of Colorado, Boulder, where he double majored in international affairs and history.

After law school, he clerked for Judge Myron Thompson of the U.S. District Court for the Middle District of Alabama Clerk and Judge Dorothy Nelson of the U.S. Court of Appeals for the Ninth Circuit.

Related Scholarship

• “Passive Voter Suppression: Campaign Mobilization and the Effective Disfranchisement of the Poor” (with Douglas Spencer), 114 Nw. U. L. Rev. 633 (2019).
• “Addressing Inequality in the Age of Citizens United,” 93 N.Y.U. L. Rev. 1120 (2018).
• “Measuring Political Power: Suspect Class Determinations and the Poor” (with Su Li), 104 Calif. L. Rev. 323 (2016).