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Regulation of the Political Process, Spring 2016 Prof. Michael D. Gilbert


Role of process; process as a substantive right COI: incumbents determine election processes. Power to maintain or change Theories of representation Methods of finding "equality" Chilling vs. Information Burdens Fundamental Rights Equal Protection Vote Denial vs. Vote Dilution o Always start with general vs. special purpose inquiry (Hadley/Avery/Salyer). Harper strict scrutiny if general/denial. Reynolds substantial equality test if general/dilution. Salyer RB review if special. VOTING RIGHTS a. Constitutional Sources i. Article I Section 2: same qualifications for federal and state elections ii. 15A: race iii. 17A: direct election of Senators iv. 19A: sex v. 24A: eliminates poll tax for federal elections vi. 26A: Adulthood defined as 18 vii. 14A: Equal Protection Clause

1. Strict Scrutiny: Fundamental rights, racial classifications (but see 15A)

2. Intermediate Scrutiny: Sex classification (but see 19A)

3. Rational Basis: All other classifications not invoking fundamental rights. Reasonably related to a legit government interest. b. Voting as a Fundamental Right: Strict Scrutiny i. Fundamental right for all (1) adult (2) citizen (3) non-felons. Nonfundamental right for all others. Only invidious restrictions (unrelated to voter qualifications) draw strict scrutiny; see Crawford balancing test for others. ii. Harper v. Virginia SBOE (1966)

1. FACTS: VA required $1.50 poll tax paid 6 months in advance. Federal poll tax already banned by 24A. State interest: raising money, voter competence.

2. REVIEW: Voting is a fundamental right that carries meticulous (strict) scrutiny.


a. 1: Raising money is not compelling. b. 2: Voter competence possibly compelling, but improperly tailored. Overinclusive (bars good voters who cannot afford tax or forgot to pay on time) and underinclusive (allows rich idiots to vote).

4. POLICY: Ability to pay has nothing more than a bare relationship to voter competence (possibly enough to overcome low-level RB). Education is better, but is also insufficiently tailored.

5. DISSENT (Harlan): Civic responsibility is a CI, and people who can't pay a small tax on time can't care enough about the system to vote.

6. BUT SEE: Lassiter v. Northampton County BOE (1959). Literacy tests upheld because pre-Harper there was no fundamental right to vote and all review was RB. Intelligence adequately related to competence interest. a. Congress used 15A S2 power to ban literacy tests via VRA. Still theoretically constitutional; Lassiter never explicitly overruled. iii. Kramer v. Union Free School District (1969) Strict Scrutiny for requirements more stringent than residency.

1. FACTS: Adult citizen nonfelon living in mother's basement challenges special requirement for school board elections that voters either own/lease property or have a child in the school system.

2. REVIEW: Strict scrutiny (checks all 3 boxes)

3. INTEREST: Limit franchise to people with interest in system (either children or taxes). Possibly compelling (no precedent).

4. TAILORING: Fails. Can be interested without concern for children or taxes (better education means higher QOL). Can pay taxes but be disinterested in community.

5. POLICY: P had right to vote for legislators who made this restriction, but SCOTUS doesn't trust legislators to get it right. Too beholden to taxpayers who would not support letting nonpayers vote. iv. Durational Residency: 50 days OK, 1 year not OK

1. Dunn v. Blumstein (1972): CI in fraud prevention and administration. 1 year is insufficiently tailored.

2. Marston v. Lewis (1973): 50 days is narrowly tailored. c. Voting as a non-fundamental right: Rational Basis i. Fundamental right for all (1) adult (2) citizen (3) non-felons. Nonfundamental right for all others.

1. Non-adults: See 26A. RB to deny vote to <18.

2. Non-citizens: Skafte v. Rorex (CO 1976, but used broadly) a. FACTS: Noncitizen wants to vote for school board.

b. RULE: 14A expands franchise to citizens only, so P has no 14A claim. RB satisfied as school boards are involved in state policymaking, and no easily administrable test to determine if aliens are part of the political community (the state interest). Citizenship is a rational place to draw the line (tailoring).

3. Felons: 14A S2 allows disenfranchisement for rebellion and other crimes. States have varying rules on whether felons may vote. None of these draw strict scrutiny; must only survive RB. a. Interests: Competence; exclude those who affirmatively reject the rules of the community. b. Impermissible Interests: Racial, partisan. c. Current Challenges: Based on VRA, not 14A. ii. Residency: Only draws rational basis review.

1. Holt Civic Club v. Tuscaloosa (1978) a. FACTS: City's police zone expanded beyond city lines, but other powers (zoning, ED, taxes) did not. Suit to give people within policing zone right to vote in city elections. b. REASONING: Spillover rationale; city decisions affect indeterminate number of people beyond borders. Only way to be fair is to let whole world vote in every election. Rational interest in limiting franchise somehow; drawing line at borders is reasonably related. c. DISSENT: People in policing zone more directly affected by city policy than others. Classification fails RB review. iii. People under Guardianship: Barred from voting by most states. Not outside 14A's three boxes, but RB anyway.

II. REPRESENTATION: ONE PERSON, ONE VOTE a. State Elections: Substantially Equal Standard (without regard to race, gender, citizen status, or eligibility) comes from 14A (EP) and gets rational basis review. If deviation is 10% or less, burden on challenger to show plan is arbitrary or discriminatory. If above 10%, burden on state to show plan is not arbitrary or discriminatory. Compelling reasons (up to 17%) include keeping political units together. i. Reynolds v. Sims (1964): Creates OPOV, bans county-based districts without regard to population. ii. Gaffney v. Cummings (1973): Deviations from perfect equality up to 10%
are presumptively valid. Can be invalid if arbitrary, discriminatory, or not a good faith effort.

1. Harris (2016): Affirms 10% as the test. iii. Larios v. Cox (2004): Summary affirmance of invalidation of GA map. No valid explanation other than partisanship = discriminatory. Interpreted

to show that challenger can overcome burden when deviation is under 10% and that 10% is not a safe harbor. iv. Municipal Boundaries: Sufficient interest to support deviation up to 17%
(several cases on page 74). v. Swann v. Adams (1967): 18% deviation and 1.3:1 ratio plan struck down, but could have been upheld through rational basis other than deference to area, economic, or group interests. b. Congressional Districts: OPOV comes from A1 SS2. Higher standard of no avoidable deviation from mathematical equality unless deviations are minor and there are legitimate state objectives. i. Wesberry v. Sanders (1964): articulates this principle. ii. Tennant v. Jefferson County (2012): For a minor deviation (in this case

0.79%), legitimate objectives include:

1. Avoiding incumbent vs. incumbent contests

2. Keeping counties together

3. Minimizing population shifts between districts c. Local Government: First ask whether specific or general in purpose. i. General Purpose: Yes. Reynolds applies.

1. Hadley v. Junior College District (1970) General Purpose Test a. TEST: Does government (1) perform important government functions and (2) have sufficient impact throughout the district?
i. Application: Government built roads and levied taxes, so OPOV despite not meeting Avery allcitizens test.

2. Avery v. Midland County (1968) a. FACTS: Rural areas of county guaranteed seats on commission despite much less population than city. b. OLD TEST: Does government have authority to make a substantial number of decisions that affect all citizens within its jurisdiction? If yes, must comply with OPOV. c. EXCEPTION: See specific purpose. d. DISSENT (Harlan): Let legislatures (which are OPOV) resolve disparities at lower levels. They are a voter recourse better informed about local government than SCOTUS is. i. Problem with this: Local unit may be so small compared to state that it's trivial to legislature. ii. Recourse for rural voters: Split city from county, reduce committee power, set rules protecting county. But they need a majority to agree with this!
ii. Special Purpose: No, if Avery exception met: Governmental unit affects definable group more than others. Apply rational basis review when special purpose is found.

1. Salyer v. Tulare Lake Basin WSD (1973)

a. FACTS: Water storage district sovereignty is one-acre, one vote. 77 residents, most are renters. Most land owned by a corporation. b. RULE: Apply Avery special-purpose exemption test. c. APPLICATION (Special Purpose): Passes test. Limited in scope (no general government power), more like a business than a governmental body, affects definable group of landowners more because tax assessed by acreage and eminent domain powers affect landowners more than renters. d. APPLICATION (RB): Legitimate interest in letting landowners vote for board that only affects landholders. Acreage is sufficiently related. e. DISSENT: ED powers affect renters too. Hard to draw line to determine when a group is affected more.

2. Ball v. James (1981) Reread for language, p. 94: One-acre one vote upheld despite district's delivery of electricity of half of Arizona. Factors: a. Does not exercise general government powers (taxes, lawmaking, schools, etc.) b. Primary purpose (water storage) is narrow and businesslike c. Delivery of electricity is not a normal government function. Customer-like relationship with nonvoters. d. Size of district and population within not a factor e. Interest and tailoring satisfy RB as district relies on landowner fees. d. Equal Population: All states comply with OPOV by calculating total population of districts. i. Reynolds: allowed for either equal population or equal voters. ii. Burns v. Richardson (1966): stated a preference for equal population. iii. Evenwel v. Perry (2016): confirmed that equal population is permissible and left equal voters open (some justices wrote that only equal population was permissible). e. Models i. Fiduciary (Burke): Representatives elected to exercise best judgment; elections turn on wisdom. ii. Issue-Centric: Representatives elected to vote a particular way on an issue. iii. PROBLEMS: Incohesiveness of priorities, intransitivity of group preferences, intensity gap. f. POLICY: Equal population approximately equals voting power, despite issues with partisanship, turnout gaps, extreme unlikelihood of a single vote mattering.


MINORITY VOTE DILUTION a. VRA SS4 and SS5: Enacted under 15A SS2 i. SS4(a): Forbids tests (e.g. literacy, good character) unless D.D.C. determines no bad acts in past 5 years. In practice: ends all tests. ii. SS4(b) Overruled: Used 1964 voter registration figures to determine covered jurisdctions for SS4(a) and SS5.

1. Could be revived in accordance with Shelby County. iii. SS 5: Requires covered jurisdictions to seek court approval from D.D.C. or preclearance from AG (may appeal denial to D.D.C) before enacting any voting change (see Allen).

1. Standard: does it have the purpose or effect of denying or abridging voting rights on account of race?

2. Still good law, but toothless for now because Shelby County eliminated all covered jurisdictions.

3. Allen v. State BOE (1969) Broad Definition of "Voting Change" a. FACTS: MS creates multi-member seats, converts some positions to appointment, and restricts indy ballot access. VA changes procedures for illiterate voters writing in candidates. No direct vote denial. b. RULE: SS5 is broad and encompasses entire electoral process. Not sure how much broader it is than this. c. POLICY: Each of these changes looked suspicious; very plausibly done to decrease black voting power.

4. Beer (see below): SS5 only applies to changes. Keeping the status quo does not trigger SS5. iv. Shelby County v. Holder Strikes Down Preclearance Regime

1. FACTS: No changes to covered jurisdictions since 1964 despite similar levels of participation and better minority voting stats than in uncovered jurisdictions.

2. OUTCOME: Coverage formula (SS4(b)) struck down on EP because of unequal burdens: disconnect between burden on covered states and actual voting statistics. SS5 left in place, but toothless until new coverage formula passed by Congress.

3. GILBERT: Makes sense if strict scrutiny because not narrowly tailored to problem. Does not make sense if rational basis because there's correlation between old bad acts and coverage formula. v. Retrogression Standard Test for Preclearance under Old SS5 Regime

1. See Alabama Legislative Black Caucus v. Alabama for test that would govern SS5 if preclearance regime revived.

2. Beer v. United States (1976) Original Test a. FACTS: NOLA is 50% black but 4/5 districts have a white majority, 5th is black majority but even by registration. Redistricting complies with OPOV and is 3 white, 1 black, and 1 black by population but white by voters. Preclearance denied.

b. TEST: Has there been a retrogression of the voting strength of minorities?
c. APPLICATION: No retrogression as blacks gain a majority in one seat. Preclearance should be granted. d. POLICY: Retrogression is outer bounds of constitutionality; anything more aggressive violates EP of white voters. e. DISSENT (White): Review entire plan and not just changes, and consider whether racially proportional. f. DISSENT (Marshall): Retrogression does not get at purpose or text of SS5. Proposed test: (1) Are minorities underrepresented? (2) If yes, burden on state to show political process is open to minority participation.

3. Reno v. Bossier Parish School Board (2000): Preclearance can only be denied for actual retrogression, not mere discriminatory intent.

4. Georgia v. Ashcroft (2003) No Longer Important a. FACTS: GA legislature, led by black Democrat, dilutes black-majority seats to add blacks to white majority-seats and make them more Dem-friendly. Preclearance denied. b. TEST: Less restrictive than Beer. i. Consider comparative ability of racial minorities to elect candidates of their choice through majority or coalition seats. ii. Consider "opportunity seats" where minorities can influence process. iii. Consider role of minorities in legislature. c. AFTERMATH: Congress rejects by rewriting SS5 to give states less discretion. New standard never tested before Shelby County struck everything down.

5. Northwest Austin Municipal Utility District v. Holder (2009) a. FACTS: Special purpose district created post VRA with no history of discrimination, but within covered state of TX. Seeks to be excluded from SS5 preclearance OR strikedown of SS4(b) as unconstitutional. b. RULE (Roberts): District allowed to bail out of preclearance regime. Constitutional argument not reached. b. VRA SS 2: Enacted under 15A SS2 i. Private COA

1. 1982 Amendment to VRA SS2: Private COA based on discriminatory effect alone, no intent requirement. Virtually eliminated 15A litigation.

2. City of Mobile v. Bolden (1980) Current 15A COA

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