PROPHYLACTIC REDISTRJCTING? CONGRESS' SECTION 5 POWER AND THE NEW EQUAL PROTECTION RIGHT TO VOTE.

• Author: Morley, Michael T.
• Position: Special Issue on Gerrymandering

TABLE OF CONTENTS INTRODUCTION 2056 I. UNPACKING THE "RIGHT TO VOTE" 2064 II. BOERNE's EFFECT ON CONGRESS'S SECTION 5 POWER TO ENFORCE 2072 THE RIGHT TO VOTE III. THE NEW EQUAL PROTECTION RIGHT TO VOTE 2088 A. Voting and Elections as Predominantly Political 2090 B. Into the Political Thicket: Equal Protection as a 2097 Pro-Voting, Rational Basis Norm 1. The Creation of Voter Equality Rights Under the 2097 Equal Protection Clause 2. Expansion of Equal Protection Voting Rights: 2098 Voter Eligibility Rights 3. Rational Basis Scrutiny for Laws Helping Certain 2101 Groups Vote C. The New Equal Protection: Equal Protection as a Strict 2108 Equality, Strict Scrutiny Norm CONCLUSION 2112 INTRODUCTION

The generally accepted purpose of a democratic election is to ascertain "the will of the people," yet there often is not any such determinate will independent of the rules regulating the electoral process. (1) Consequently, the rules governing an election frequently play a tremendous role in shaping its outcome. For example, Arrow's Paradox arises when people must make a series of binary choices from among various options and their collective preferences are cyclical rather than transitive. (2) In such cases, there is no single, definitive "will of the people" for an election to ascertain; (3) the electorate's ultimate decision will depend on the order in which voters are invited to choose between different pairs of options. (4)

The will of the people in a presidential election can look very different depending on whether it is measured by popular vote or the Electoral College. (5) Similarly, determining the will of the people in legislative elections depends on whether the elections are conducted statewide or by district; (6) in elections conducted on a district-by-district basis, the apparent will of the people depends on where district boundaries are drawn. (7) Voters' apparent preferences and desires may even be influenced by the phrasing of a question in a referendum or the order in which candidates are listed on a ballot. (8)

The Voting Rights Act (VRA) (9) is one of the most important constraints on the ability of states and localities to set the rules governing the electoral process. (10) By limiting states' power to manipulate their policies to hinder minority voting, the VRA has played a major role in structuring the electoral process at all levels and led to dramatically increased participation rates for African Americans. (11) Most notably, it has been interpreted to require states to create majority-minority legislative districts to ensure that minority voters may elect the candidates of their choice. (12) In some cases, states have been required to disaggregate multimember districts for state and local legislative bodies into single-member districts to compel the creation of predominantly minority districts. (13) In recent years, section 2 of the VRA has been used as the basis for striking down a wide array of electoral reforms, including voter identification requirements, (14) reductions in early voting periods, (15) and attempts to eliminate same-day voter registration. (16) Some courts have gone even further, invoking section 2 to invalidate measures such as the elimination of straight-ticket voting. (17)

The VRA has long been regarded as a "super-statute," (18) part of the firmament of American law virtually immune from challenge. (19) As the Supreme Court's ruling in Shelby County [upsilon]. Holder (20) and dissenting opinions in other recent VRA cases (21) vividly demonstrate, however, we are no longer in an "age of maintenance" concerning the VRA. (22) To the contrary, the Court has demonstrated its willingness to reconsider both the VRA's scope and constitutional legitimacy. (23) Professors Guy-Uriel E. Charles and Luis Fuentes-Rohwer cogently explain that, at least at the Supreme Court, "the consensus about racial discrimination that supported the VRA has dissolved." (24) With the VRA's preclearance requirements held in abeyance under Shelby County, (25) section 2 of the VRA--which prohibits states from adopting rules or engaging in actions that prevent racial minorities from electing candidates of their choice (26)--assumes even greater importance.

In light of the skepticism toward the VRA the Supreme Court has manifested in recent years, (27) two major developments pose substantial threats to what remains of the statute. To help preserve this key protection for voting rights for all Americans, voting rights advocates must structure their arguments concerning the Act's proper interpretation and scope to avoid or minimize such concerns. The VRA's opponents, in contrast, are likely to use these developments as pressure points around which to craft future challenges.

First, the Supreme Court's 1996 ruling in City of Boerne v. Flores marks a dramatic shift in the Court's understanding of the scope of congressional authority under Section 5 of the Fourteenth Amendment. (28) Shortly after the VRA's enactment, in Katzenbach v. Morgan, the Supreme Court easily affirmed that the statute was a valid exercise of Congress's power under Section 5 and did not violate equal protection restrictions. (29) The Court analogized Section 5 to the Necessary and Proper Clause, (30) holding it grants Congress sweeping authority to enact any laws it deems "appropriate" to enforce constitutional rights, including voting rights. (31) The Court elsewhere held (32) that Congress has similarly broad authority under Section 2 of the Fifteenth Amendment, (33) which permits Congress to enforce that Amendment's prohibition against intentional racial discrimination concerning voting rights. (34)

Under the Court's original interpretation of these enforcement clauses, Congress could not only prevent states from violating the Constitution, but also enact purely prophylactic measures banning constitutionally valid state actions that Congress believed might lead to, or be a cover for, a potential constitutional violation. (35) When Congress acts under these provisions, it may even be able to authorize states to enact race-conscious measures that would otherwise be suspect. (36)

Boerne, in contrast, adopted a much narrower conception of Section 5 of the Fourteenth Amendment, holding that a law enacted pursuant to that provision must be "congruent and proportional []" to actual constitutional violations that can be established in an evidentiary record. (37) Boerne raises questions as to whether: Katzenbach remains good law; Boerne's interpretation of Section 5 applies equally to Section 2 of the Fifteenth Amendment and other voting rights amendments' enforcement clauses; (38) and the VRA--either as currently interpreted (39) or under reasonable alternate interpretations--falls within this more limited conception of congressional authority. (40)

Boerne threatens the VRA's validity because Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment are the constitutional cornerstones of congressional voting rights enforcement. They are the only provisions even potentially broad enough to support the VRA. Congress has virtually plenary authority (41) to regulate congressional (42) and presidential (43) elections. Apart from its power to induce states

to voluntarily comply with federal standards by offering grants under the Spending Clause, (44) however, Congress's only authority to regulate elections at all levels of government (including state and local races) comes from Section 5 of the Fourteenth Amendment, (45) Section 2 of the Fifteenth Amendment, (46) and other complementary voting rights enforcement provisions. (47) By narrowing the scope of Section 5, Boerne partly eroded the VRA's constitutional foundation.

Second, the judiciary's interpretation of the equal protection right to vote appears to be in the midst of an even more fundamental evolution. Traditionally, the Supreme Court adopted a "pro-voting" interpretation of equal protection. The Court would generally uphold measures that expanded the franchise or made it easier for certain segments of the electorate to vote, even though they did not apply to other, similarly situated individuals. (48) It construed the Constitution to facilitate efforts to expand voting rights, even on a piecemeal basis.

Later precedents, and circuit court cases building on them, adopt more of a "pro-equality" approach. A measure is no longer deemed constitutional simply because it selectively expands the franchise, makes it easier for some people to vote, or extends special protections to certain populations. Rather, modern equal protection doctrine appears to require that voting-related rights generally be conferred upon everyone (or all similarly situated people) or no one. (49)

This "new" equal protection right to vote, arising from the Court's concept of voting as a fundamental right, (50) seems more in accord with the principles underlying the Equal Protection Clause than the pro-voting interpretation. One serious challenge of the proequality interpretation, however, is that measures such as section 2 of the VRA, which offer certain groups special protection even from constitutionally valid state laws that disadvantage them, become much harder to justify. This Article is among the first to recognize this "new" equal protection right to vote and consider its impact on the VRA, as well as congressional power under Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment.

Part I begins by setting forth various conceptions of "the right to vote" under the Constitution and federal law. It contends that the phrase can be understood in at least five different senses, as referring to either: (1) the right to be recognized as an eligible voter; (2) the right of an eligible voter to cast a ballot without undue burden; (3) the right of an eligible voter who casts a ballot to have it counted and assigned weight equal to other people's votes; (4) the...