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The right to vote is fundamental for equal protection purposes. This right is derivative of some textual rights, not the least of which are those in the 1st Amendment, and is protective of other rights and core principles that inhere in our republican democracy. State interference with this EP fundamental right occurs in a number of ways: 1) outright denial to certain classes (e.g., blacks, women, aliens); 2) unequal allocation (e.g., vote dilution, differential access to political bodies); 3) imposition of uniform burdens with disparate impact (e.g., poll taxes); and 4) miscellaneous ways such as durational residency rules, vote counting rules, and so-called "expressive harms" that result from gerrymandering (district lines drawn in such a way as to influence electoral outcomes).
The gerrymandering cases are particularly difficult to synthesize into coherent doctrine. These come in two basic flavors: racial gerrymandering, and partisan gerrymandering. As to the former, it is important to recognize that race is not "irrelevant" to the drawing of district lines, at least insofar as it overlaps with several of the "legitimate" bases for districting - geographic continuity, cohesiveness of economic, social and political communities, and obedience to the congressional command (pursuant to the Voting Rights Act) not to dilute minority voting strengths. Thus, while legislatures can take race into account to some extent (and often have to, to comply with VRA), if it becomes a predominant factor in drawing district lines, it is unconstitutional. This is known in election law circles as the Goldilocks Principle.
Goldilocks
Legislative bodies drawing electoral district lines often have to take race into account just the right amount; not too little and not too much. If they ignore it entirely, they may wind up diluting minority voting strength. If they make it a predominant basis for line drawing, that creates an expressive harm for white voters.
Expressive harm occurs since whites are being treated as, well, whites; i.e., on the basis of race. Even where their voting strength isn't diluted (i.e., minorities are not being over-represented in the elective body), being classified on the basis of race is enough to create a cognizable EP injury.
Another way in which the racial gerrymandering cases differ from typical EP cases is that once race is found to have played a significant role in drawing lines, the defendant cannot sanitize the result by showing that the lines would have been drawn the same (or similar) way using non-racial factors. Remember, in the ordinary EP case (other than facial racial classifications), defendant can "sanitize" the disparate impact by showing it would have occurred anyway if race had not been a conscious factor. Not so with racial gerrymandering cases. However, some justices (including O'Connor - the inevitable 5th vote) may be coming around on this point.
Proof of racial intent can be shown through indirect (circumstantial) evidence, such as the lack of geographic compactness in district maps.
The second kind of gerrymandering involves incumbency and partisan protection. Legislators usually prefer district lines that render their districts "safe" from challengers, and thus might include areas with like-minded (or same party) voters and exclude areas with other party voters. This can get out of hand when a legislature dominated by one party goes beyond incumbency protection and draws lines so as to diminish the prospects of the other party in the next election. This is what the Republicans did in redistricting Texas' congressional districts; packing and cracking Democratic voting blocks so as to maximize Republican electoral strength. In Vieth v. Jubilierer, the S.Ct. was unable to agree on an EP standard for evaluation of such partisan gerrymandering. Four justices would have held this entire area off limits as a political question. Justice Kennedy agreed with the pluraility in dismissing the case, but not on jurisdictional grounds. Rather, he thought plaintiffs had not met their burden of proof of presenting an acceptable standard to measure against the Republican redistricting.
Posted by The Professor at October 26, 2005 05:25 PM