Prophylactic Redistrjcting? Congress' Section 5 Power and the New Equal Protection Right to Vote

By Morley, Michael T. | William and Mary Law Review, April 2018 | Go to article overview

Prophylactic Redistrjcting? Congress' Section 5 Power and the New Equal Protection Right to Vote


Morley, Michael T., William and Mary Law Review


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. …

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