Amdt14.S1.10.3 Fundamental Interests: The Political Process

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised . . . , absent of course the discrimination which the Constitution condemns.1 The Constitution provides that the qualifications of electors in congressional elections are to be determined by reference to the qualifications prescribed in the states for the electors of the most numerous branch of the legislature, and the states are authorized to determine the manner in which presidential electors are selected. 2 The second section of the Fourteenth Amendment provides for a proportionate reduction in a state’s representation in the House when it denies the franchise to its qualified male citizens 3 and specific discriminations on the basis of race, sex, and age are addressed in other Amendments. We do not suggest that any standards which a State desires to adopt may be required of voters. But there is wide scope for exercise of its jurisdiction. Residence requirements, age, previous criminal record . . . are obvious examples indicating factors which a state may take into consideration in determining the qualification of voters. The ability to read and write likewise has some relation to standards designed to promote intelligent use of the ballot.4

The perspective of this 1959 opinion by Justice Douglas has now been revolutionized. Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the rights of citizens to vote must be carefully and meticulously scrutinized.5 Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government. . . . Statutes granting the franchise to residents on a selective basis always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives. Therefore, if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest.

And, for these reasons, the deference usually given to the judgment of legislators does not extend to decisions concerning which resident citizens may participate in the election of legislators and other public officials. . . . [W]hen we are reviewing statutes which deny some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a ‘rational basis’ for the distinctions made are not applicable.6 Using this analytical approach, the Court has established a regime of close review of a vast range of state restrictions on the eligibility to vote, on access to the ballot by candidates and parties, and on the weighing of votes cast through the devices of apportionment and districting. Changes in Court membership over the years has led to some relaxation in the application of principles, but even as the Court has drawn back in other areas it has tended to preserve, both doctrinally and in fact, the election cases. 7

Voter Qualifications

States may require residency as a qualification to vote, but durational residence laws . . . are unconstitutional unless the State can demonstrate that such laws are necessary to promote a compelling governmental interest.8 The Court applies [t]his exacting test because the right to vote is a fundamental political right, . . . preservative of all rights, and because a durational residence requirement directly impinges on the exercise of a second fundamental personal right, the right to travel.9 The Court indicated that the states have a legitimate and compelling interest in preventing fraud by voters, but that it is impossible to view durational residence requirements as necessary to achieve that state interest.10

However, a 50-day durational residence requirement was sustained in the context of the closing of the registration process at 50 days prior to elections and of the mechanics of the state’s registration process. The period, the Court found, was necessary to achieve the state’s legitimate goals. 11

A state that exercised general criminal, taxing, and other jurisdiction over persons on certain federal enclaves within the state, the Court held, could not treat these persons as nonresidents for voting purposes. 12 A statute that provided that anyone who entered military service outside the state could not establish voting residence in the state so long as he remained in the military was held to deny to such a person the opportunity such as all non-military persons enjoyed of showing that he had established residence. 13 Restricting the suffrage to those persons who had paid a poll tax was an invidious discrimination because it introduced a capricious or irrelevant factor of wealth or ability to pay into an area in which it had no place. 14 Extending this ruling, the Court held that the eligibility to vote in local school elections may not be limited to persons owning property in the district or who have children in school, 15 and denied states the right to restrict the vote to property owners in elections on the issuance of revenue bonds 16 or general obligation bonds. 17 By contrast, the Court upheld a statute that required voters to present a government-issued photo identification in order to vote, as the state had not required voters to pay a tax or a fee to obtain a new photo identification. The Court added that, although obtaining a government-issued photo identification is an inconvenience to voters, it surely does not qualify as a substantial burden.18

The Court has also held that, because the activities of a water storage district fell so disproportionately on landowners as a group, a limitation of the franchise in elections for the district’s board of directors to landowners, whether resident or not and whether natural persons or not, excluding non-landowning residents and lessees of land, and weighing the votes granted according to assessed valuation of land, comported with equal protection standards. 19 Adverting to the reservation in prior local governmental unit election cases 20 that some functions of such units might be so specialized as to permit deviation from the usual rules, the Court then proceeded to assess the franchise restrictions according to the traditional standards of equal protection rather than by those of strict scrutiny. 21 Also narrowly approached was the issue of the effect of the District’s activities, the Court focusing upon the assessments against landowners as the sole means of paying expenses rather than additionally noting the impact upon lessees and non-landowning residents of such functions as flood control. The approach taken in this case seems different in great degree from that in prior cases and could in the future alter the results in other local government cases. These cases were extended somewhat in Ball v. James, 22 a 5-to-4 decision that sustained a system in which voting eligibility was limited to landowners and votes were allocated to these voters on the basis of the number of acres they owned. The entity was a water reclamation district that stores and delivers water to 236,000 acres of land in the state and subsidizes its water operations by selling electricity to hundreds of thousands of consumers in a nearby metropolitan area. The entity’s board of directors was elected through a system in which the eligibility to vote was as described above. The Court thought the entity was a specialized and limited form to which its general franchise rulings did not apply. 23

Finding that prevention of raiding – the practice whereby voters in sympathy with one party vote in another’s primary election in order to distort that election’s results – is a legitimate and valid state goal, as one element in the preservation of the integrity of the electoral process, the Court sustained a state law requiring those voters eligible at that time to register to enroll in the party of their choice at least 30 days before the general election in order to be eligible to vote in the party’s next primary election, 8 to 11 months hence. The law did not impose a prohibition upon voting but merely imposed a time deadline for enrollment, the Court held, and it was because of the plaintiffs’ voluntary failure to register that they did not meet the deadline. 24 But a law that prohibited a person from voting in the primary election of a political party if he had voted in the primary election of any other party within the preceding 23 months was subjected to strict scrutiny and was voided, because it constituted a severe restriction upon a voter’s right to associate with the party of his choice by requiring him to forgo participation in at least one primary election in order to change parties. 25 A less restrictive closed primary system was also invalidated, the Court finding insufficient justification for a state’s preventing a political party from allowing independents to vote in its primary. 26

It must not be forgotten, however, that it is only when a state extends the franchise to some and denies it to others that a right to vote arises and is protected by the Equal Protection Clause. If a state chooses to fill an office by means other than through an election, neither the Equal Protection Clause nor any other constitutional provision prevents it from doing so. Thus, in Rodriguez v. Popular Democratic Party, 27 the Court unanimously sustained a Puerto Rico statute that authorized the political party to which an incumbent legislator belonged to designate his successor in office until the next general election upon his death or resignation. Neither the fact that the seat was filled by appointment nor the fact that the appointment was by the party, rather than by the governor or some other official, raised a constitutional question.

The right of unconvicted jail inmates and convicted misdemeanants (who typically are under no disability) to vote by absentee ballot remains unsettled. In an early case applying rational basis scrutiny, the Court held that the failure of a state to provide for absentee balloting by unconvicted jail inmates, when absentee ballots were available to other classes of voters, did not deny equal protection when it was not shown that the inmates could not vote in any other way. 28 Subsequently, the Court held unconstitutional a statute denying absentee registration and voting rights to persons confined awaiting trial or serving misdemeanor sentences, but it is unclear whether the basis was the fact that persons confined in jails outside the county of their residences could register and vote absentee while those confined in the counties of their residences could not, or whether the statute’s jumbled distinctions among categories of qualified voters on no rational standard made it wholly arbitrary. 29

Access to the Ballot

The Equal Protection Clause applies to state specification of qualifications for elective and appointive office. Although one may have no right to be elected or appointed to an office, all persons do have a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualification. The State may not deny to some the privilege of holding public office that it extends to others on the basis of distinctions that violate federal constitutional guarantees.30 In Bullock v. Carter, 31 the Court used a somewhat modified form of the strict test in passing upon a filing fee system for primary election candidates that imposed the cost of the election wholly on the candidates and that made no alternative provision for candidates unable to pay the fees; the reason for application of the standard, however, was that the fee system deprived some classes of voters of the opportunity to vote for certain candidates and it worked its classifications along lines of wealth. The system itself was voided because it was not reasonably connected with the state’s interest in regulating the ballot and did not serve that interest and because the cost of the election could be met out of the state treasury, thus avoiding the discrimination. 32

Recognizing the state interest in maintaining a ballot of reasonable length in order to promote rational voter choice, the Court observed nonetheless that filing fees alone do not test the genuineness of a candidacy or the extent of voter support for an aspirant. Therefore, effectuation of the legitimate state interest must be achieved by means that do not unfairly or unnecessarily burden the party’s or the candidate’s important interest in the continued availability of political opportunity. The interests involved are not merely those of parties or individual candidates; the voters can assert their preferences only through candidates or parties or both and it is this broad interest that must be weighed in the balance. . . . [T]he process of qualifying candidates for a place on the ballot may not constitutionally be measured solely in dollars.33 In the absence of reasonable alternative means of ballot access, the Court held, a state may not disqualify an indigent candidate unable to pay filing fees. 34

In Clements v. Fashing, 35 the Court sustained two provisions of state law, one that barred certain officeholders from seeking election to the legislature during the term of office for which they had been elected or appointed, but that did not reach other officeholders whose terms of office expired with the legislators’ terms and did not bar legislators from seeking other offices during their terms, and the other that automatically terminated the terms of certain officeholders who announced for election to other offices, but that did not apply to other officeholders who could run for another office while continuing to serve. The Court was splintered in such a way, however, that it is not possible to derive a principle from the decision applicable to other fact situations.

In Williams v. Rhodes, 36 a complex statutory structure that had the effect of keeping off the ballot all but the candidates of the two major parties was struck down under the strict test because it deprived the voters of the opportunity of voting for independent and third-party candidates and because it seriously impeded the exercise of the right to associate for political purposes. Similarly, a requirement that an independent candidate for office in order to obtain a ballot position must obtain 25,000 signatures, including 200 signatures from each of at least 50 of the state’s 102 counties, was held to discriminate against the political rights of the inhabitants of the most populous counties, when it was shown that 93.4% of the registered voters lived in the 49 most populous counties. 37 But to provide that the candidates of any political organization obtaining 20% or more of the vote in the last gubernatorial or presidential election may obtain a ballot position simply by winning the party’s primary election, while requiring candidates of other parties or independent candidates to obtain the signatures of less than five percent of those eligible to vote at the last election for the office sought, is not to discriminate unlawfully, because the state placed no barriers of any sort in the way of obtaining signatures and because write-in votes were also freely permitted. 38

Reviewing under the strict test the requirements for qualification of new parties and independent candidates for ballot positions, the Court recognized as valid objectives and compelling interests the protection of the integrity of the nominating and electing process, the promotion of party stability, and the assurance of a modicum of order in regulating the size of the ballot by requiring a showing of some degree of support for independents and new parties before they can get on the ballot. 39 [T]o comply with the First and Fourteenth Amendments the State must provide a feasible opportunity for new political organizations and their candidates to appear on the ballot.40 Decision whether or not a state statutory structure affords a feasible opportunity is a matter of degree, very much a matter of ‘consider[ing] the facts and circumstances behind the law, the interest which the State claims to be protecting, and the interest of those who are disadvantaged by the classification.’41

Thus, in order to assure that parties seeking ballot space command a significant, measurable quantum of community support, Texas was upheld in treating different parties in ways rationally constructed to achieve this objective. Candidates of parties whose gubernatorial choice polled more than 200,000 votes in the last general election had to be nominated by primary elections and went on the ballot automatically, because the prior vote adequately demonstrated support. Candidates whose parties polled less than 200,000 but more than 2 percent could be nominated in primary elections or in conventions. Candidates of parties not coming within either of the first two categories had to be nominated in conventions and could obtain ballot space only if the notarized list of participants at the conventions totaled at least one percent of the total votes cast for governor in the last preceding general election or, failing this, if in the 55 succeeding days a requisite number of qualified voters signed petitions to bring the total up to one percent of the gubernatorial vote. [W]hat is demanded may not be so excessive or impractical as to be in reality a mere device to always, or almost always, exclude parties with significant support from the ballot, but the Court thought that one percent, or 22,000 signatures in 1972, falls within the outer boundaries of support the State may require.42 Similarly, independent candidates can be required to obtain a certain number of signatures as a condition to obtain ballot space. 43 A state may validly require that each voter participate only once in each year’s nominating process and it may therefore disqualify any person who votes in a primary election from signing nominating or supporting petitions for independent parties or candidates. 44 Equally valid is a state requirement that a candidate for elective office, as an independent or in a regular party, must not have been affiliated with a political party, or with one other than the one of which he seeks its nomination, within one year prior to the primary election at which nominations for the general election are made. 45 So too, a state may limit access to the general election ballot to candidates who received at least 1% of the primary votes cast for the particular office. 46 But it is impermissible to print the names of the candidates of the two major parties only on the absentee ballots, leaving off independents and other parties. 47 Also invalidated was a requirement that independent candidates for President and Vice-President file nominating petitions by March 20 in order to qualify for the November ballot. 48

Apportionment and Districting

Prior to 1962, attacks in federal courts on the drawing of boundaries for congressional 49 and legislative election districts or the apportionment of seats to previously existing units ran afoul of the political question doctrine. 50 Baker v. Carr, 51 however, reinterpreted the doctrine to a considerable degree and opened the federal courts to voter complaints founded on unequally populated voting districts. Wesberry v. Sanders52 found that Article I, § 2, of the Constitution required that, in the election of Members of the House of Representatives, districts were to be made up of substantially equal numbers of persons. In six decisions handed down on June 15, 1964, the Court required the alteration of the election districts for practically all the legislative bodies in the United States. 53

We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with the votes of citizens living in other parts of the State.54 What was required was that each state make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable. We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement.55

Among the principal issues raised by these decisions were which units were covered by the principle, to what degree of exactness population equality had to be achieved, and to what other elements of the apportionment and districting process the Equal Protection Clause extended.

The first issue has largely been resolved, although a few problem areas persist. It has been held that a school board, the members of which were appointed by boards elected in units of disparate populations, and that exercised only administrative powers rather than legislative powers, was not subject to the principle of the apportionment ruling. 56 Avery v. Midland County57 held that, when a state delegates lawmaking power to local government and provides for the election by district of the officials to whom the power is delegated, the districts must be established of substantially equal populations. But, in Hadley v. Junior College District, 58 the Court abandoned much of the limitation that was explicit in these two decisions and held that, whenever a state chooses to vest governmental functions in a body and to elect the members of that body from districts, the districts must have substantially equal populations. The governmental functions should not be characterized as legislative or administrative or necessarily important or unimportant; it is the fact that members of the body are elected from districts that triggers the application. 59

The second issue has been largely but not precisely resolved. In Swann v. Adams, 60 the Court set aside a lower court ruling for the failure of the State to present or the District Court to articulate acceptable reasons for the variations among the populations of the various legislative districts. . . . De minimis deviations are unavoidable, but variations of 30% among senate districts and 40% among house districts can hardly be deemed de minimis and none of our cases suggests that differences of this magnitude will be approved without a satisfactory explanation grounded on acceptable state policy. Two congressional districting cases were disposed of on the basis of Swann, 61 but, although the Court ruled that no congressional districting could be approved without a good-faith effort to achieve precise mathematical equality or the justification of each variance, no matter how small,62 it did not apply this strict standard to state legislative redistricting. 63 And, in Abate v. Mundt, 64 the Court approved a plan for apportioning a county governing body that permitted a substantial population disparity, explaining that in the absence of a built-in bias tending to favor any particular area or interest, a plan could take account of localized factors in justifying deviations from equality that might in other circumstances invalidate a plan. 65 The total population deviation allowed in Abate was 11.9%; the Court refused, however, to extend Abate to approve a total deviation of 78% resulting from an apportionment plan providing for representation of each of New York City’s five boroughs on the New York City Board of Estimate. 66

Nine years after Reynolds v. Sims, the Court reexamined the population equality requirement of the apportionment cases. Relying upon language in prior decisions that distinguished state legislative apportionment from congressional districting as possibly justifying different standards of permissible deviations from equality, the Court held that more flexibility is constitutionally permissible with respect to the former than to the latter. 67 But it was in determining how much greater flexibility was permissible that the Court moved in new directions. First, applying the traditional standard of rationality rather than the strict test of compelling necessity, the Court held that a maximum 16.4% deviation from equality of population was justified by the state’s policy of maintaining the integrity of political subdivision lines, or according representation to subdivisions qua subdivisions, because the legislature was responsible for much local legislation. 68 Second, just as the first case demonstrates, population deviations among districts may be sufficiently large to require justification but nonetheless be justifiable and legally sustainable. It is now time to recognize . . . that minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.69 This recognition of a de minimis deviation, below which no justification was necessary, was mandated, the Court felt, by the margin of error in census statistics, by the population change over the ten-year life of an apportionment, and by the relief it afforded federal courts by enabling them to avoid over-involvement in essentially a political process. The goal of fair and effective representation is furthered by eliminating gross population variations among districts, but it is not achieved by mathematical equality solely. Other relevant factors are to be taken into account. 70 But when a judicially imposed plan is to be formulated upon state default, it must ordinarily achieve the goal of population equality with little more than de minimis variation, and deviations from approximate population equality must be supported by enunciation of historically significant state policy or unique features. 71

Subsequently, in its 2016 decision in Harris v. Arizona Independent Redistricting Commission, the Court reiterated the significance of the 10% threshold in challenges to state legislative voting districts, observing that attacks on deviations under 10% will succeed only rarely, in unusual cases.72 Instead, challengers must show that it is more probable than not that the deviation reflects the predominance of illegitimate reapportionment factors rather than . . . legitimate considerations.73 The Court unanimously agreed that the challengers in Harris had failed to meet this burden, as the record supported the district court’s conclusion that the deviation here—which was 8.8%—reflected the redistricting commission’s efforts to achieve compliance with the Voting Rights Act, and not to secure political advantage for the Democratic party. 74 In particular, the Court noted that the difference in population between Democratic- and Republican-leaning districts may simply reflect the residential and voting patterns of minorities, and the redistricting commission’s efforts to maintain ability-to-elect districts (i.e., districts favorable to the election of minority candidates). 75 In the Court’s view, there was no showing of illegitimate factors here, unlike in certain earlier cases (e.g., the creation of districts that seem to have no relation to keeping counties whole or preserving the cores of prior districts). 76 The Court further noted that its decision in Shelby County v. Holder, 77 which held unconstitutional a section of the Voting Rights Act relevant to this case, did not mean that Arizona’s attempt to comply with the Act could not have been a legitimate state interest, as Arizona created the plan at issue in 2010, and Shelby County was not decided until 2013. 78

Gerrymandering and the permissible use of multimember districts present examples of the third major issue. It is clear that racially based gerrymandering is unconstitutional under the Fifteenth Amendment, at least when it is accomplished through the manipulation of district lines. 79 Even if racial gerrymandering is intended to benefit minority voting populations, it is subject to strict scrutiny under the Equal Protection Clause  80 if race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.81 A challenger can show racial predominance by demonstrating that the legislature ‘subordinated’ other factors—compactness, respect for political subdivisions, partisan advantage, what have you—to 'racial considerations.'82 Showing that a district’s bizarre shape departs from traditional districting principles such as compactness, contiguity, and respect for political subdivision lines may serve to reinforce such a claim, 83 although a plurality of the Justices would not preclude the creation of reasonably compact majority-minority districts in order to remedy past discrimination or to comply with the requirements of the Voting Rights Act of 1965. 84 While the Court appeared to have weakened a challenger’s ability to establish equal protection claims in the early 2000s by deferring to a legislature’s articulation of legitimate political explanations for districting decisions, and by allowing for a correlation between race and political affiliation, 85 more recent cases have shown such challenges are not entirely foreclosed. 86

Partisan or political gerrymandering raises more difficult issues. Several lower courts ruled that the issue was beyond judicial cognizance, 87 and the Supreme Court itself, upholding an apportionment plan frankly admitted to have been drawn with the intent to achieve a rough approximation of the statewide political strengths of the two parties, recognized the goal as legitimate and observed that, while the manipulation of apportionment and districting is not wholly immune from judicial scrutiny, we have not ventured far or attempted the impossible task of extirpating politics from what are the essentially political processes of the sovereign States.88

The Court in Davis v. Bandemer89 ruled that partisan gerrymandering in state legislative redistricting is justiciable under the Equal Protection Clause. But, although the vote was 6 to 3 in favor of justiciability, a majority of Justices could not agree on the proper test for determining whether particular gerrymandering is unconstitutional, and the lower court’s holding of unconstitutionality was reversed by vote of 7 to 2. 90 Thus, although courthouse doors were now ajar for claims of partisan gerrymandering, it was unclear what it would take to succeed on the merits.

On the justiciability issue, the Court viewed the political question criteria as no more applicable than they had been in Baker v. Carr. Because Reynolds v. Sims had declared fair and effective representation for all citizens91 to be the basic aim of legislative apportionment, and because racial gerrymandering issues had been treated as justiciable, the Court viewed the representational issues raised by partisan gerrymandering as indistinguishable. Agreement as to the existence of judicially discoverable and manageable standards for resolving gerrymandering issues, however, did not result in a consensus as to what those standards are. 92 Although a majority of Justices agreed that discriminatory effect as well as discriminatory intent must be shown, there was significant disagreement as to what constitutes discriminatory effect.

Following Bandemer’s holding that claims of partisan gerrymandering were justiciable, the Court could not reach a consensus on the proper test for adjudicating these claims, and eventually concluded that claims of unconstitutional partisan gerrymandering were nonjusticiable. 93 First, in 2004’s Vieth v. Jubelirer, a four-Justice plurality would have overturned Bandemer and held that “political gerrymandering claims are nonjusticiable.” 94 Justice Kennedy, concurring in the Court’s judgment, agreed that the challengers before the Court had not yet articulated “comprehensive and neutral principles for drawing electoral boundaries” or any rules that would properly “limit and confine judicial intervention.” 95 But he held out hope that in the future the Court could find “some limited and precise rationale” to adjudicate other partisan gerrymandering claims, leaving Bandemer intact. 96 Two years later, in League of United Latin American Citizens v. Perry, a splintered Court again neither adopted a standard for adjudicating political gerrymandering claims, nor overruled Bandemer by deciding such claims were nonjusticiable. 97 Ultimately, in Rucho v. Common Cause, issued in 2019, the Supreme Court held that there were no judicially manageable standards by which courts could adjudicate claims of unconstitutional partisan gerrymandering, implicitly overruling Bandemer’s conclusion that such claims were justiciable under the Equal Protection Clause. 98

In another line of cases, courts suggested that challenges to multimember districts that allegedly minimize or cancel out the votes of racial and political minorities might be justiciable under the Equal Protection Clause, 99 but in Whitcomb v. Chavis100 the Court, while dealing with the issue on the merits, so enveloped it in strict standards of proof and definitional analysis as to raise the possibility that it might be beyond judicial review. In Chavis the Court held that inasmuch as the multimember districting represented a state policy of more than 100 years observance and could not therefore be said to be motivated by racial or political bias, only an actual showing that the multimember delegation in fact inadequately represented the allegedly submerged minority would suffice to raise a constitutional question. But the Court also rejected as impermissible the argument that any interest group had any sort of right to be represented in a legislative body, in proportion to its members’ numbers or on some other basis, so that the failure of that group to elect anyone merely meant that alone or in combination with other groups it simply lacked the strength to obtain enough votes, whether the election be in single-member or in multimember districts. That fact of life was not of constitutional dimension, whether the group was composed of black citizens, or Republicans or Democrats, or some other category of persons. Thus, the submerging argument was rejected, as was the argument of a voter in another county that the Court should require uniform single-member districting in populous counties because voters in counties that elected large delegations in blocs had in effect greater voting power than voters in other districts; this argument the Court found too theoretical and too far removed from the actualities of political life.

Subsequently, and surprisingly in light of Chavis, the Court in White v. Regester101 affirmed a district court invalidation of the use of multimember districts in two Texas counties on the ground that, when considered in the totality of the circumstances of discrimination in registration and voting and in access to other political opportunities, such use denied African-Americans and Mexican-Americans the opportunity to participate in the election process in a reliable and meaningful manner. 102

Doubt was cast on the continuing vitality of White v. Regester, however, by the badly split opinion of the Court in City of Mobile v. Bolden. 103 A plurality undermined the earlier case in two respects, although it is not at all clear that a majority of the Court had been or could be assembled on either point. First, the plurality argued that an intent to discriminate on the part of the redistricting body must be shown before multimember districting can be held to violate the Equal Protection Clause. 104 Second, the plurality read White v. Regester as being consistent with this principle and the various factors developed in that case to demonstrate the existence of unconstitutional discrimination to be in fact indicia of intent; however, the plurality seemingly disregarded the totality of circumstances test used in Regester and evaluated instead whether each factor alone was sufficient proof of intent. 105

Again switching course, the Court in Rogers v. Lodge106 approved the findings of the lower courts that a multimember electoral system for electing a county board of commissioners was being maintained for a racially discriminatory purpose, although it had not been instituted for that purpose. Applying a totality of the circumstances test, and deferring to lower court factfinding, the Court, in an opinion by one of the Mobile dissenters, canvassed a range of factors that it held could combine to show a discriminatory motive, and largely overturned the limitations that the Mobile plurality had attempted to impose in this area. With the enactment of federal legislation specifically addressed to the issue of multimember districting and dilution of the votes of racial minorities, however, it may be that the Court will have little further opportunity to develop the matter in the context of constitutional litigation. 107 In Thornburg v. Gingles, 108 the Court held that multimember districting violates § 2 of the Voting Rights Act by diluting the voting power of a racial minority when that minority is sufficiently large and geographically compact to constitute a majority in a single-member district, when it is politically cohesive, and when block voting by the majority usually defeats preferred candidates of the minority. 109

Finally, the Court has approved the discretionary exercise of equity powers by the lower federal courts in drawing district boundaries and granting other relief in districting and apportionment cases, 110 although that power is bounded by the constitutional violations found, so that courts do not have carte blanche, and they should ordinarily respect the structural decisions made by state legislatures and the state constitutions. 111

Counting and Weighing of Votes

In Bush v. Gore, 112 a case of dramatic result but of perhaps limited significance for equal protection, the Supreme Court ended a ballot dispute that arose during the year 2000 presidential election. The Florida Supreme Court had ordered a partial manual recount of the Florida vote for Presidential Electors, requiring that all ballots that contained a clear indication of the intent of the voter be counted, but allowing the relevant counties to determine what physical characteristics of a ballot would satisfy this test. The Court held that the Equal Protection Clause would be violated by allowing arbitrary and disparate methods of discerning voter intent in the recounting of ballots. The decision was surprising to many, as a lack of uniformity in voting standards and procedures is inherent in the American system of decentralized voting administration. The Court, however, limited its holding to the present circumstances, where a state court with the power to assure uniformity fails to provide minimal procedural safeguards.113 Citing the many complexities of application of equal protection in election processes generally, the Court distinguished the many situations where disparate treatment of votes results from different standards being applied by different local jurisdictions.

In cases where votes are given more or less weight by operation of law, it is not the weighing of votes itself that may violate the 14th Amendment, but the manner in which it is done. Gray v. Sanders, 114 for instance, struck down the Georgia county unit system under which each county was allocated either two, four, or six votes in statewide elections and the candidate carrying the county received those votes. Because there were a few very populous counties and scores of poorly populated ones, the rural counties in effect dominated statewide elections and candidates with popular majorities statewide could be and were defeated. But Gordon v. Lance115 approved a provision requiring a 60-percent affirmative vote in a referendum election before constitutionally prescribed limits on bonded indebtedness or tax rates could be exceeded. The Court acknowledged that the provision departed from strict majority rule but stated that the Constitution did not prescribe majority rule; it instead proscribed discrimination through dilution of voting power or denial of the franchise because of some class characteristic – race, urban residency, or the like – and the provision at issue in this case was neither directed to nor affected any identifiable class.

Footnotes

  1.  Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50-51 (1959).
  2.  Article I, § 2, cl. 1 (House of Representatives); Seventeenth Amendment (Senators); Article II, § 1, cl. 2 (presidential electors); Article I, § 4, cl. 1 (times, places, and manner of holding elections).
  3.  Fourteenth Amendment, § 2. Justice Harlan argued that the inclusion of this provision impliedly permitted the states to discriminate with only the prescribed penalty in consequence and that therefore the equal protection clause was wholly inapplicable to state election laws. Reynolds v. Sims, 377 U.S. 533, 589 (1964) (dissenting); Carrington v. Rash, 380 U.S. 89, 97 (1965) (dissenting); Oregon v. Mitchell, 400 U.S. 112, 152 (1970) (concurring and dissenting). Justice Brennan undertook a rebuttal of this position in Oregon v. Mitchell, 400 U.S. at 229, 250 (concurring and dissenting). But see Richardson v. Ramirez, 418 U.S. 24 (1974), where § 2 was relevant in precluding an equal protection challenge.
  4.  Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 51 (1959).
  5.  Reynolds v. Sims, 377 U.S. 533, 561-62 (1964).
  6.  Kramer v. Union Free School Dist., 395 U.S. 621, 626-28 (1969). See also Hill v. Stone, 421 U.S. 289, 297 (1975). But cf. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978).
  7.  Thus, in San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 34-35 nn.74 & 78 (1973), a major doctrinal effort to curb the fundamental interest side of the new equal protection, the Court acknowledged that the right to vote did not come within its prescription that rights to be deemed fundamental must be explicitly or implicitly guaranteed in the Constitution. Nonetheless, citizens have a constitutionally protected right to participate in elections, which is protected by the Equal Protection Clause. Dunn v. Blumstein, 405 U.S. 330, 336 (1972). The franchise is the guardian of all other rights. Reynolds v. Sims, 377 U.S. 533, 562 (1964).
  8.  Dunn v. Blumstein, 405 U.S. 330, 342 (1972) (internal quotation marks omitted, emphasis added by the Court) (striking down a Tennessee statute that imposed a requirement of one year in the state and three months in the county). The Court did not indicate what, if any, shorter duration it would permit, although it noted that, in the Voting Rights Act Amendments of 1970, 84 Stat. 316, 42 U.S.C. § 1973aa–1, Congress outlawed State durational residence requirements for presidential and vice-presidential elections, and prohibited the States from closing registration more than 30 days before Congress prescribed a thirty-day period for purposes of voting in presidential elections. Id. at 344. Note also that it does not matter whether one travels interstate or intrastate. Hadnott v. Amos, 320 F. Supp. 107 (M.D. Ala. 1970), aff'd, 405 U.S. 1035 (1972).
  9.  405 U.S. at 336, 338. See also Purcell v. Gonzalez, 549 U.S. 1, 2 (2006) (per curiam) (vacating an injunction against requiring voters to present proof of citizenship when they register to vote and to present identification when they vote on election day, but expressing no opinion on the constitutionality of the requirement).
  10.  405 U.S. at 345. Other asserted state interests – knowledgeability of voters, common interests, intelligent voting – were said either not to be served by the requirements or to be impermissible interests.
  11.  Marston v. Lewis, 410 U.S. 679 (1973). Registration was by volunteer workers who made statistically significant errors requiring corrections by county recorders before certification. Primary elections were held in the fall, thus occupying the time of the recorders, so that a backlog of registrations had to be processed before the election. A period of 50 days rather than 30, the Court thought, was justifiable. However, the same period was upheld for another state on the authority of Marston in the absence of such justification, but it appeared that the plaintiffs had not controverted the state’s justifying evidence. Burns v. Fortson, 410 U.S. 686 (1973). Justices Brennan, Douglas, and Marshall dissented in both cases. Id. at 682, 688.
  12.  Evans v. Cornman, 398 U.S. 419 (1970).
  13.  Carrington v. Rash, 380 U.S. 89 (1965).
  14.  Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966). Justices Black, Harlan, and Stewart dissented. Id. at 670, 680. Poll tax qualifications had previously been upheld in Breedlove v. Suttles, 302 U.S. 277 (1937); and Butler v. Thompson, 341 U.S. 937 (1951).
  15.  Kramer v. Union Free School Dist., 395 U.S. 621 (1969). The Court assumed without deciding that the franchise in some circumstances could be limited to those primarily interested or primarily affected by the outcome, but found that the restriction permitted some persons with no interest to vote and disqualified others with an interest. Justices Stewart, Black, and Harlan dissented. Id. at 594.
  16.  Cipriano v. City of Houma, 395 U.S. 701 (1969). Justices Black, Harlan, and Stewart concurred specially. Id. at 707.
  17.  City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970). Justice Stewart and Chief Justice Burger dissented. Id. at 215. In Hill v. Stone, 421 U.S. 289 (1975), the Court struck down a limitation on the right to vote on a general obligation bond issue to persons who have rendered or listed real, mixed, or personal property for taxation in the election district. It was not a special interest election since a general obligation bond issue is a matter of general interest.
  18.  Crawford v. Marion County Election Board, 128 S. Ct. 1610, 1621 (2008) (plurality). See Fourteenth Amendment, Voting and Ballot Access, infra.
  19.  Salyer Land Co. v. Tulare Water Storage Dist., 410 U.S. 719 (1973). See also Associated Enterprises v. Toltec Watershed Improv. Dist., 410 U.S. 743 (1973) (limitation of franchise to property owners in the creation and maintenance of district upheld). Justices Douglas, Brennan, and Marshall dissented in both cases. Id. at 735, 745.
  20.  410 U.S. at 727-28.
  21.  410 U.S. at 730, 732. Thus, the Court posited reasons that might have moved the legislature to adopt the exclusions.
  22.  451 U.S. 355 (1981).
  23.  The water district cases were distinguished in Quinn v. Millsap, 491 U.S. 95, 109 (1989), the Court holding that a board of freeholders appointed to recommend a reorganization of local government had a mandate far more encompassing than land use issues, as its recommendations affect[ ] all citizens . . . regardless of land ownership.
  24.  Rosario v. Rockefeller, 410 U.S. 752 (1973). Justices Powell, Douglas, Brennan, and Marshall dissented. Id. at 763.
  25.  Kusper v. Pontikes, 414 U.S. 51 (1973). Justices Blackmun and Rehnquist dissented. Id. at 61, 65.
  26.  Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). Although independents were allowed to register in a party on the day before a primary, the state’s justifications for protect[ing] the integrity of the Party against the Party itself were deemed insubstantial. Id. at 224.
  27.  457 U.S. 1 (1982). See also Fortson v. Morris, 385 U.S. 231 (1966) (legislature could select governor from two candidates having highest number of votes cast when no candidate received majority); Sailors v. Board of Elections, 387 U.S. 105 (1967) (appointment rather than election of county school board); Valenti v. Rockefeller, 292 F. Supp. 851 (S.D.N.Y. 1968) (three-judge court), aff’d, 393 U.S. 405 (1969) (gubernatorial appointment to fill United States Senate vacancy).
  28.  McDonald v. Board of Election Comm’rs, 394 U.S. 802 (1969). But see Goosby v. Osser, 409 U.S. 512 (1973) (McDonald does not preclude challenge to absolute prohibition on voting).
  29.  O’Brien v. Skinner, 414 U.S. 524 (1974). See American Party of Texas v. White, 415 U.S. 767, 794-95 (1974).
  30.  Turner v. Fouche, 396 U.S. 346, 362-63 (1970) (voiding a property qualification for appointment to local school board). See also Chappelle v. Greater Baton Rouge Airport Dist., 431 U.S. 159 (1977) (voiding a qualification for appointment as airport commissioner of ownership of real or personal property that is assessed for taxes in the jurisdiction in which airport is located); Quinn v. Millsap, 491 U.S. 95 (1989) (voiding property ownership requirement for appointment to board authorized to propose reorganization of local government). Cf. Snowden v. Hughes, 321 U.S. 1 (1944).
  31.  405 U.S. 134, 142-44 (1972).
  32.  405 U.S. at 144-49.
  33.  Lubin v. Panish, 415 U.S. 709, 716 (1974).
  34.  Concurring, Justices Blackmun and Rehnquist suggested that a reasonable alternative would be to permit indigents to seek write-in votes without paying a filing fee, 415 U.S. at 722, but the Court indicated this would be inadequate. Id. at 719 n.5.
  35.  457 U.S. 957 (1982). A plurality of four contended that save in two circumstances – ballot access classifications based on wealth and ballot access classifications imposing burdens on new or small political parties or independent candidates – limitations on candidate access to the ballot merit only traditional rational basis scrutiny, because candidacy is not a fundamental right. The plurality found both classifications met the standard. Id. at 962-73 (Justices Rehnquist, Powell, O’Connor, and Chief Justice Burger). Justice Stevens concurred, rejecting the plurality’s standard, but finding that inasmuch as the disparate treatment was based solely on the state’s classification of the different offices involved, and not on the characteristics of the persons who occupy them or seek them, the action did not violate the Equal Protection Clause. Id. at 973. The dissent primarily focused on the First Amendment but asserted that the classifications failed even a rational basis test. Id. at 976 (Justices Brennan, White, Marshall, and Blackmun).
  36.  393 U.S. 23 (1968). [T]he totality of the Ohio restrictive laws taken as a whole imposes a burden on voting and associational rights which we hold is an invidious discrimination, in violation of the Equal Protection Clause. Id. at 34. Justices Douglas and Harlan would have relied solely on the First Amendment, id. at 35, 41, and Justices Stewart and White and Chief Justice Warren dissented. Id. at 48, 61, 63.
  37.  Moore v. Ogilvie, 394 U.S. 814 (1969) (overruling MacDougall v. Green, 335 U.S. 281 (1948)).
  38.  Jenness v. Fortson, 403 U.S. 431 (1971).
  39.  Storer v. Brown, 415 U.S. 724 (1974); American Party of Texas v. White, 415 U.S. 767 (1974); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979). See also Indiana Communist Party v. Whitcomb, 414 U.S. 441 (1974) (impermissible to condition ballot access upon a political party’s willingness to subscribe to oath that party does not advocate the overthrow of local, state or national government by force or violence, opinion of Court based on First Amendment, four Justices concurring on equal protection grounds).
  40.  Storer v. Brown, 415 U.S. 724, 746 (1974).
  41.  415 U.S. at 730 (quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968)).
  42.  American Party of Texas v. White, 415 U.S. 767, 783 (1974). In Storer v. Brown, 415 U.S. 724, 738-40 (1974), the Court remanded so that the district court could determine whether the burden imposed on an independent party was too severe, it being required in 24 days in 1972 to gather 325,000 signatures from a pool of qualified voters who had not voted in that year’s partisan primary elections. See also Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) (voiding provision that required a larger number of signatures to get on ballot in subdivisions than statewide).
  43.  American Party of Texas v. White, 415 U.S. 767, 788-91 (1974). The percentages varied with the office but no more than 500 signatures were needed in any event.
  44.  415 U.S. at 785-87.
  45.  Storer v. Brown, 415 U.S. 724, 728-37 (1974). Dissenting, Justices Brennan, Douglas and Marshall thought the state interest could be adequately served by a shorter time period than a year before the primary election, which meant in effect 17 months before the general election. Id. at 755.
  46.  Munro v. Socialist Workers Party, 479 U.S. 189 (1986).
  47.  American Party of Texas v. White, 415 U.S. 767, 794-95 (1974). Upheld, however, was state financing of the primary election expenses that excluded convention expenses of the small parties. Id. at 791-94. But the major parties had to hold conventions simultaneously with the primary elections the cost of which they had to bear. For consideration of similar contentions in the context of federal financing of presidential elections, see Buckley v. Valeo, 424 U.S. 1, 93-97 (1976).
  48.  Anderson v. Celebrezze, 460 U.S. 780 (1983). State interests in assuring voter education, treating all candidates equally (candidates participating in a party primary also had to declare candidacy in March), and preserving political stability, were deemed insufficient to justify the substantial impediment to independent candidates and their supporters.
  49.   This subject is also discussed under Article I, Section 2, Congressional Districting.
  50.  See discussion, supra. Applicability of the doctrine to cases of this nature was left unresolved in Smiley v. Holm, 285 U.S. 355 (1932), and Wood v. Broom, 287 U.S. 1 (1932), was supported by only a plurality in Colegrove v. Green, 328 U.S. 549 (1946), but became the position of the Court in subsequent cases. Cook v. Fortson, 329 U.S. 675 (1946); Colegrove v. Barrett, 330 U.S. 804 (1947); MacDougall v. Green, 335 U.S. 281 (1948); South v. Peters, 339 U.S. 276 (1950); Hartsfield v. Sloan, 357 U.S. 916 (1958).
  51.  369 U.S. 186 (1962).
  52.  376 U.S. 1 (1964). Striking down a county unit system of electing a governor, the Court, in an opinion by Justice Douglas, had already coined a variant phrase of the more popular one man, one vote. The conception of political equality from the Declaration of Independence to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing – one person, one vote. Gray v. Sanders, 372 U.S. 368, 381 (1963).
  53.  Reynolds v. Sims, 377 U.S. 533 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964); Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656 (1964); Donis v. Mann, 377 U.S. 678 (1964); Roman v. Sincock, 377 U.S. 695 (1964); Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964). In the last case, the Court held that approval of the apportionment plan in a vote of the people was insufficient to preserve it from constitutional attack. An individual’s constitutionally protected right to cast an equally weighed vote cannot be denied even by a vote of a majority of a State’s electorate, if the apportionment scheme adopted by the voters fails to measure up to the requirements of the Equal Protection Clause. Id. at 736. In Reynolds v. Sims, Justice Harlan dissented wholly, denying that the Equal Protection Clause had any application at all to apportionment and districting and contending that the decisions were actually the result of a reformist nonjudicial attitude on the part of the Court. 377 U.S. at 589. Justices Stewart and Clark dissented in two and concurred in four cases on the basis of their view that the Equal Protection Clause was satisfied by a plan that was rational and that did not systematically frustrate the majority will. 377 U.S. at 741, 744.
  54.  Reynolds v. Sims, 377 U.S. 533, 568 (1964).
  55.  377 U.S. at 577.
  56.  Sailors v. Board of Education, 387 U.S. 105 (1967).
  57.  390 U.S. 474 (1968). Justice Harlan continued his dissent from the Reynolds line of cases, id. at 486, while Justices Fortas and Stewart called for a more discerning application and would not have applied the principle to the county council here. Id. at 495, 509.
  58.  397 U.S. 50 (1970). The governmental body here was the board of trustees of a junior college district. Justices Harlan and Stewart and Chief Justice Burger dissented. Id. at 59, 70.
  59.  The Court observed that there might be instances in which a State elects certain functionaries whose duties are so far removed from normal governmental activities and so disproportionately affect different groups that a popular election in compliance with Reynolds, supra, might not be required . . . . 397 U.S. at 56. For cases involving such units, see Salyer Land Co. v. Tulare Water Storage Dist., 410 U.S. 719 (1973); Associated Enterprises v. Toltec Watershed Imp. Dist., 410 U.S. 743 (1973); Ball v. James, 451 U.S. 355 (1981). Judicial districts need not comply with Reynolds. Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972) (three-judge court), aff’d per curiam, 409 U.S. 1095 (1973).
  60.  385 U.S. 440, 443-44 (1967). See also Kilgarlin v. Hill, 386 U.S. 120 (1967).
  61.  Kirkpatrick v. Preisler, 385 U.S. 450 (1967); Duddleston v. Grills, 385 U.S. 455 (1967).
  62.  Kirkpatrick v. Preisler, 394 U.S. 526, 530-31 (1969); Wells v. Rockefeller, 394 U.S. 542 (1969). The Court has continued to adhere to this strict standard for congressional districting, voiding a plan in which the maximum deviation between largest and smallest district was 0.7%, or 3,674 persons. Karcher v. Daggett, 462 U.S. 725 (1983) (rejecting assertion that deviations less than estimated census error are necessarily permissible).
  63.  The Court relied on Swann in disapproving of only slightly smaller deviations (roughly 28% and 25%) in Whitcomb v. Chavis, 403 U.S. 124, 161-63 (1971). In Connor v. Williams, 404 U.S. 549, 550 (1972), the Court said of plaintiffs’ reliance on Preisler and Wells that these decisions do not squarely control the instant appeal since they do not concern state legislative apportionment, but they do raise substantial questions concerning the constitutionality of the District Court’s plan as a design for permanent apportionment.
  64.  403 U.S. 182 (1971).
  65.  In Evenwel v. Abbott, a case involving representation in the state legislature, the Court rejected the argument that the Equal Protection Clause prohibits states from using total population in determining voting districts and instead requires the use of the voting population. 578 U.S. ___, No. 14-940, slip op. (2016). The Court based its conclusion here, in part, on the debates over representation in the U.S. House and Senate at the time of the Constitution’s framing, as well as subsequent debates over the Fourteenth Amendment at the time of its ratification. Id. at 8-12. The Court also noted prior decisions focusing on equality of representation, and not voter equality, id. at 16, and the settled practices of all fifty states and countless local jurisdictions in apportioning representation based on total population. Id. at 18. It is important to note, however, that the Evenwel Court declined to find that apportionment based on total population is constitutionally required, and the Court has, in other cases, upheld the use of districts based on voting population. See Burns v. Richardson, 384 U.S. 73 (1966) (rejecting a challenge to Hawaii’s use of the registered-voter population).
  66.  New York City Bd. of Estimate v. Morris, 489 U.S. 688 (1989). Under the plan each of the City’s five boroughs was represented on the board by its president and each of these members had one vote; three citywide elected officials (the mayor, the comptroller, and the president of the city council) were also placed on the board and given two votes apiece (except that the mayor had no vote on the acceptance or modification of his budget proposal). The Court also ruled that, when measuring population deviation for a plan that mixes at-large and district representation, the at-large representation must be taken into account. Id. at 699-701.
  67.  Mahan v. Howell, 410 U.S. 315, 320-25 (1973).
  68.  410 U.S. at 325-30. The Court indicated that a 16.4% deviation may well approach tolerable limits. Id. at 329. Dissenting, Justices Brennan, Douglas, and Marshall would have voided the plan; additionally, they thought the deviation was actually 23.6% and that the plan discriminated geographically against one section of the state, an issue not addressed by the Court. In Chapman v. Meier, 420 U.S. 1, 21-26 (1975), holding that a 20% variation in a court-developed plan was not justified, the Court indicated that such a deviation in a legislatively-produced plan would be quite difficult to justify. See also Summers v. Cenarrusa, 413 U.S. 906 (1973) (vacating and remanding for further consideration the approval of a 19.4% deviation). But see Voinovich v. Quilter, 507 U.S. 146 (1993) (vacating and remanding for further consideration the rejection of a deviation in excess of 10% intended to preserve political subdivision boundaries). In Brown v. Thomson, 462 U.S. 835 (1983), the Court held that a consistent state policy assuring each county at least one representative can justify substantial deviation from population equality when only the marginal impact of representation for the state’s least populous county was challenged (the effect on plaintiffs, voters in larger districts, was that they would elect 28 of 64 members rather than 28 of 63), but there was indication in Justice O’Connor’s concurring opinion that a broader-based challenge to the plan, which contained a 16% average deviation and an 89% maximum deviation, could have succeeded.
  69.  Gaffney v. Cummings, 412 U.S. 735, 745 (1973). The maximum deviation was 7.83%. The Court did not precisely indicate at what point a deviation had to be justified, but it applied the de minimis standard in White v. Regester, 412 U.S. 755 (1973), in which the maximum deviation was 9.9%. Very likely, larger differences between districts would not be tolerable without justification . . . . Id. at 764. Justices Brennan, Douglas, and Marshall dissented. See also Brown v. Thomson, 462 U.S. 835, 842 (1983): Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within [the] category of minor deviations [insufficient to make out a prima facie case].
  70.  Gaffney v. Cummings, 412 U.S. 735, 748 (1973). By contrast, the Court has held that estimated margin of error for census statistics does not justify deviation from population equality in congressional districting. Karcher v. Daggett, 462 U.S. 725 (1983).
  71.  Chapman v. Meier, 420 U.S. 1, 27 (1975). The Court did say that court-ordered reapportionment of a state legislature need not attain the mathematical preciseness required for congressional redistricting. Id. at 27 n.19. Apparently, therefore, the Court’s reference to both de minimis variations and approximate population equality must be read as referring to some range approximating the Gaffney principle. See also Connor v. Finch, 431 U.S. 407 (1977).
  72.  578 U.S. ___, No. 14-232, slip op. at 5 (2016). See also id. (noting the inherent difficulties of measuring and comparing factors that may legitimately account for small deviations from strict mathematical equality).
  73.  Id. at 1.
  74.  See id. at 5-9.
  75.  Id. at 9-10.
  76.  Id. at 10.
  77.  570 U.S. ___, No. 12-96, slip op. (2013).
  78.  See 578 U.S. ___, No. 14-232, slip op. at 10 (2016).
  79.  Gomillion v. Lightfoot, 364 U.S. 339 (1960); Wright v. Rockefeller, 376 U.S. 52 (1964); Sims v. Baggett, 247 F. Supp. 96 (M.D. Ala. 1965) (three-judge court). Hunt v. Cromartie, 526 U.S. 541 (1999).
  80.  See Abbott v. Perez, 585 U.S. ___, No. 17-586, slip op. at 3 (2018) ("The Equal Protection Clause forbids 'racial gerrymandering,' that is, intentionally assigning citizens to a district on the basis of race without sufficient justification." (quoting Shaw v. Reno, 509 U.S. 630, 641 (1993))).
  81.  Miller v. Johnson, 515 U.S. 900, 916 (1995); see also Shaw v. Hunt, 517 U.S. 899, 904-05 (1996). Furthermore, in determining whether racial criteria predominate in the drawing of a district, the Court has noted that the determination must be made with respect to a specific electoral district, as opposed to a state as an undifferentiated whole. See Ala. Legislative Black Caucus v. Alabama, 575 U.S. ___, No. 13-895, slip op. at 6 (2015).
  82.  Cooper v. Harris, 581 U.S. ___, No. 15-1262, slip op. at 2 (2017) (quoting Miller, 515 U.S. at 916).
  83.  Miller v. Johnson, 515 U.S. 900 (1995); Shaw v. Reno, 509 U.S. 630 (1993). See also Shaw v. Hunt, 517 U.S. 899 (1996) (creating an unconventionally-shaped majority-minority congressional district in one portion of state in order to alleviate effect of fragmenting geographically compact minority population in another portion of state does not remedy a violation of § 2 of Voting Rights Act, and is thus not a compelling governmental interest). Moreover, in discussing a challenger’s reliance on the bizarreness of a district’s shape, the Court has cautioned that [t]he Equal Protection Clause does not prohibit misshapen districts. It prohibits unjustified racial classifications. Bethune-Hill v. Va. State Bd. of Elections, 580 U.S. ___, No. 15-680, slip op. at 9 (2017) (holding that racial considerations predominated in the redrawing of twelve Virginia state legislative districts, but left it to the district court to determine whether the state succeeded in demonstrat[ing] that its districting legislation is narrowly tailored to achieve a compelling interest).
  84.  Bush v. Vera, 517 U.S. 952, 979 (1996) (opinion of Justice O’Connor, joined by Chief Justice Rehnquist and Justice Kennedy) (also involving congressional districts). When a state relies on compliance with the Voting Rights Act to justify race-based districting, however, the state must show (to meet the 'narrow tailoring' requirement) that it had 'a strong basis in evidence' for concluding that the statute required its action. Cooper, 581 U.S. at ___, slip op. at 3 (quoting Ala. Legislative Black Caucus, 575 U.S. at ___, slip op. at 22). In other words, the State must establish that it had 'good reasons' to think that it would transgress the Act if it did not draw race-based district lines. Id. at 3 (quoting Ala. Legislative Black Caucus, 575 U.S. at ___, slip op. at 22) (emphasis in original). See Perez, 585 U.S. at ___, slip op. at 39 (rejecting Texas's claim that "it had good reasons to believe" that its use of race as a predominant factor in the design of a Texas House District "was necessary to satisfy § 2 of the Voting Rights Act," and noting "where we have accepted a State's 'good reasons' for using race in drawing district lines, the State made a strong showing of a pre-enactment analysis with justifiable conclusions" (internal quotation marks and citation omitted)). In Bethune-Hill v. Virginia State Board of Elections, the Court found that the State had established that the primary mapdrawer "discussed the district with incumbents from other majority-minority districts[,] . . . considered turnout rates, the results of the recent contested primary and general elections . . ., and the district's large population of disenfranchised black prisoners," which the Court characterized as a "functional analysis" that "achieved an informed bipartisan consensus," meeting the narrow tailoring requirement. No. 15-680, 580 U.S. ___, slip op. at 15, 14 (2017)).
  85.  See Easley v. Cromartie, 532 U.S. 234 (2001). (“Caution is especially appropriate in this case, where the State has articulated a legitimate political explanation for its districting decision, and the voting population is one in which race and political affiliation are highly correlated.”). Nonetheless, in considering a state’s legitimate reasons for a particular redistricting decision, the Court has held that legislative efforts to create districts of approximately equal population should not be weighed against the use of race to determine whether race predominates, as the “equal population” goal is a “background rule” that animates all redistricting decisions. See Ala. Legislative Black Caucus, slip op. at 17.
  86.  See Cooper, slip op. at 34 (holding that racial considerations predominated in the redrawing of two congressional districts in North Carolina and that § 2 of the [Voting Rights Act] gave North Carolina no good reason to reshuffle voters because of their race).
  87.  E.g., WMCA, Inc. v. Lomenzo, 238 F. Supp. 916 (S.D.N.Y. 1965) (three-judge court), aff’d, 382 U.S. 4 (1965); Sincock v. Gately, 262 F. Supp. 739 (D. Del. 1967) (three-judge court).
  88.  Gaffney v. Cummings, 412 U.S. 735, 751, 754 (1973).
  89.  478 U.S. 109 (1986). The vote on justiciability was 6-3, with Justice White’s opinion of the Court being joined by Justices Brennan, Marshall, Blackmun, Powell, and Stevens. This represented an apparent change of view by three of the majority Justices, who just two years earlier had denied that the existence of noncompact or gerrymandered districts is by itself a constitutional violation. Karcher v. Daggett, 466 U.S. 910, 917 (1983) (Justice Brennan, joined by Justices White and Marshall, dissenting from denial of stay in challenge to district court’s rejection of a remedial districting plan on the basis that it contained an intentional gerrymander).
  90.  Only Justices Powell and Stevens thought the Indiana redistricting plan void; Justice White, joined by Justices Brennan, Marshall, and Blackmun, thought the record inadequate to demonstrate continuing discriminatory impact, and Justice O’Connor, joined by Chief Justice Burger and by Justice Rehnquist, would have ruled that partisan gerrymandering is nonjusticiable as constituting a political question not susceptible to manageable judicial standards.
  91.  377 U.S. 533, 565-66 (1964). This phrase has had a life of its own in the commentary. See D. Alfange, Jr., Gerrymandering and the Constitution: Into the Thorns of the Thicket at Last, 1986 Sup. Ct. Rev. 175, and sources cited therein. It is not clear from its original context, however, that the phrase was coined with such broad application in mind.
  92.  The quotation is from the Baker v. Carr measure for existence of a political question, 369 U.S. 186, 217 (1962).
  93.   Rucho v. Common Cause, 588 U.S. ____, Nos. 18-422, 18-726, slip op. at 30 (2019).
  94.   541 U.S. 267, 281 (2004).
  95.   Id. at 306–07.
  96.   Id. at 306.
  97.   548 U.S. 399, 414 (2006) (declining to “revisit [Bandemer’s] justiciability holding”); see also id. at 417 (Kennedy, J.) (rejecting proposed test for adjudicating partisan gerrymandering claims); id. at 492 (Roberts, J., concurring in part) (agreeing that proposed test was not a reliable standard for adjudicating partisan gerrymandering claims); id. at 512 (Scalia, J., dissenting) (arguing that claims of unconstitutional partisan gerrymandering are nonjusticiable).
  98.   588 U.S. ____, Nos. 18-422, 18-726, slip op. at 30 (2019).
  99.   See Kilgarlin v. Hill, 386 U.S. 120, 125 n.3 (1967); Burns v. Richardson, 384 U.S. 73, 88–89 (1966); Fortson v. Dorsey, 379 U.S. 433, 439 (1965).
  100.  403 U.S. 124 (1971). Justice Harlan concurred specially, id. at 165, and Justices Douglas, Brennan, and Marshall, dissented, finding racial discrimination in the operation of the system. Id. at 171.
  101.  412 U.S. 755, 765-70 (1973).
  102.  To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question – that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. 412 U.S. at 765-66.
  103.  446 U.S. 55 (1980).
  104.  446 U.S. at 65-68 (Justices Stewart, Powell, Rehnquist, and Chief Justice Burger). On intent versus impact analysis, see discussion, supra. Justices Blackmun and Stevens concurred on other grounds, id. at 80, 83, and Justices White, Brennan, and Marshall dissented. Id. at 94, 103. Justice White agreed that purposeful discrimination must be found, id. at 101, while finding it to have been shown, Justice Blackmun assumed that intent was required, and Justices Stevens, Brennan, and Marshall would not so hold.
  105.  446 U.S. at 68-74. Four Justices rejected this view of the plurality, while Justice Stevens also appeared to do so but followed a mode of analysis significantly different from that of any other Justice.
  106.  458 U.S. 613 (1982). Joining the opinion of the Court were Justices White, Brennan, Marshall, Blackmun, O’Connor, and Chief Justice Burger. Dissenting were Justices Powell and Rehnquist, id. at 628, and Justice Stevens. Id. at 631.
  107.  On the legislation, see Congressional Definition of Fourteenth Amendment Rights, infra.
  108.  478 U.S. 30, 50-51 (1986). Use of multimember districting for purposes of political gerrymandering was at issue in Davis v. Bandemer, 478 U.S. 109 (1986), decided the same day as Gingles, but there was no agreement as to the appropriate constitutional standard. A plurality led by Justice White relied on the Whitcomb v. Chavis reasoning, suggesting that proof that multimember districts were constructed for the advantage of one political party falls short of the necessary showing of deprivation of opportunity to participate in the electoral process. 478 U.S. at 136-37. Two Justices thought the proof sufficient for a holding of invalidity, the minority party having won 46% of the vote but only 3 of 21 seats from the multimember districts, and the only discernible pattern [being] the appearance of these districts in areas where their winner-take-all aspects can best be employed to debase [one party’s] voting strength, (id. at 179-80, Justices Powell and Stevens), and three Justices thought political gerrymandering claims to be nonjusticiable.
  109.  With regard to the interplay between the demands of the Equal Protection Clause and the Voting Rights Act (VRA), the Court recently explained:

    Since the Equal Protection Clause restricts consideration of race and the VRA demands consideration of race, a legislature attempting to produce a lawful districting plan is vulnerable to "competing hazards of liability." In an effort to harmonize these conflicting demands, we have assumed that compliance with the VRA may justify the consideration of race in a way that would not otherwise be allowed. In technical terms, we have assumed that complying with the VRA is a compelling state interest, and that a State's consideration of race in making a districting decision is narrowly tailored and thus satisfies strict scrutiny if the State has 'good reasons' for believing that its decision is necessary in order to comply with the VRA.

    Abbott v. Perez, 585 U.S. ___, No. 17-586, slip op. at 4–5 (2018) (quoting Bush v. Vera, 517 U.S. 952, 977 (1996) (plurality opinion); Cooper v. Harris, 581 U.S. ___, No. 15-1262, slip op. at 3 (2017)) (citing Bethune-Hill v. Va. State Bd. of Elections, 580 U.S. ___, No. 15-680, slip op. at 13 (2017); Shaw v. Hunt, 517 U.S. 899, 915 (1996)). The Court further clarified that, under Thornburg v. Gingles, "[t]o make out a 2 'effects' claim [under the VRA], a plaintiff must establish the three so-called 'Gingles factors.' These are (1) a geographically compact minority population sufficient to constitute a majority in a single-member district, (2) political cohesion among the members of the minority group, and (3) bloc voting by the majority to defeat the minority's preferred candidate." Id. at 33 (citing Gingles, 478 U.S. at 48–51).

  110.  E.g., Reynolds v. Sims, 377 U.S. 533, 586-87 (1964); Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 195-200 (1972); White v. Weiser, 412 U.S. 783, 794-95 (1973); Upham v. Seamon, 456 U.S. 37, 41-42 (1982). When courts draw their own plans, the court is held to tighter standards than is a legislature and has to observe smaller population deviations and use single-member districts more than multi-member ones. Connor v. Johnson, 402 U.S. 690, 692 (1971); Chapman v. Meier, 420 U.S. 1, 14-21 (1975); Wise v. Lipscomb, 437 U.S. 535, 540 (1978). Cf. Mahan v. Howell, 410 U.S. 315, 333 (1973).
  111.  E.g., North Carolina v. Covington, 585 U.S. ___, No. 17-1364, slip op. at 9–10 (2018) (per curiam) ("The District Court's decision to override the legislature's remedial map on that basis was clear error. '[S]tate legislatures have primary jurisdiction over legislative reapportionment,' and a legislature's 'freedom of choice to devise substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should not be restricted beyond the clear commands' of federal law. A district court is 'not free . . . to disregard the political program of' a state legislature on other bases." (quoting White v. Weiser, 412 U.S. 783, 795 (1973); Burns v. Richardson, 384 U.S. 73, 85 (1966); Upham v. Seamon, 456 U.S. 37, 43 (1982) (per curiam)));Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187 (1972) (reduction of numbers of members); Whitcomb v. Chavis, 403 U.S. 124, 160-61 (1971) (disregard of policy of multimember districts not found unconstitutional); White v. Weiser, 412 U.S. 783, 794-95 (1973); Upham v. Seamon, 406 U.S. 37 (1982). But see Karcher v. Daggett, 466 U.S. 910 (1983) (denying cert. over dissent’s suggestion that court-adopted congressional districting plan had strayed too far from the structural framework of the legislature’s invalidated plan).
  112.  531 U.S. 98 (2000).
  113.  531 U.S. at 109.
  114.  372 U.S. 368 (1963).
  115.  403 U.S. 1 (1971).