Equal Protection

One Person, One Vote - Continued

1) Bodies performing governmental functions The "one person, one vote" rule applies to local elections of entities that perform governmental functions, even when the functions are specialized rather than general in nature. In addition to requiring relative equality with respect to the weight of a person's vote, the Equal Protection Clause subjects the restriction of voting of a particular class of persons to strict scrutiny, which generally results in the invalidation of the law. The restriction of voting to a class of persons (e.g., landowners) and the allocation of voting weight on a basis other than personhood (e.g., the amount of land owned) has been upheld only with regard to water-district elections. c. At-large elections While an election in which members of a governmental unit (e.g., county council members) are elected by all voters within that unit (i.e., an at-large election) does not violate the one-person, one-vote rule, it may conflict with another constitutional provision, such as the Equal Protection Clause. Note: Federal law bans at-large elections for congressional representatives in states that have more than one House member (i.e., the single-member district rule).

Non-Suspect Classifications

1. Age Age discrimination in violation of the Age Discrimination in Employment Act of 1967 does not provoke heightened scrutiny; laws and other governmental actions classifying on the basis of age are reviewed under the rational basis standard. 2. Poverty Most statutes and regulations that classify on the basis of wealth (i.e., discriminate against the poor) are subject only to rational basis scrutiny and will be upheld. There is an exception for cases in which governmental action prohibits the poor from exercising a fundamental right because of a government-imposed fee; strict scrutiny will usually apply in those situations. For example, the availability of appeal in a criminal case cannot hinge on ability to pay for a trial transcript. 3. Sexual Orientation Discrimination on the basis of sexual orientation does not provoke heightened scrutiny. The government, however, cannot impose a burden or deny a benefit on a group of persons solely based on animosity toward the class that it affects.

Quasi-Suspect Classifications

1. Gender Discrimination based on gender is "quasi-suspect" and subject to intermediate scrutiny, which is less stringent than strict scrutiny but tougher than the rational basis test. Just as with suspect classifications and fundamental rights, there must be discriminatory intent by the government to trigger intermediate scrutiny; disparate impact is not enough. Under intermediate scrutiny, the burden is on the state to show that a statute or regulation that treats the sexes differently is substantially related to an important governmental interest. This test applies whether the classification is invidious or benign, and it is now applied rather stringently, requiring the government to show that an "exceedingly persuasive justification" exists for the distinction, and that separate facilities (such as separate sports team facilities as state universities) are "substantially equivalent." United States v. Virginia, 518 U.S. 515 (1996). a. Discrimination against women Intentional discrimination through gender classification will generally be struck down under the intermediate scrutiny standard. For example, a state law giving preference to men over women to be administrators of decedents' estates was invalid. Reed v. Reed, 404 U.S. 71 (1971) (ease in determining who should serve as administrator is not an important interest). See also United States v. Virginia, 518 U.S. 515 (1996) (Virginia Military Institute could not exclude women from admission to public college based on overbroad generalizations about the physical capabilities and preferred educational methods of males and females). b. Discrimination against men Intentional discrimination against males is generally struck down for violating equal protection. However, there have been some instances of discrimination against men being upheld because of the important governmental interest: i) Draft registration of males, but not females, Rostker v. Goldberg, 453 U.S. 57 (1981) (interest of preparing combat troops); and ii) A statutory rape law that held only men criminally liable for such conduct, Michael M. v. Sonoma County Superior Court, 450 U.S. 464 (1981) (interest in preventing teenage pregnancy). c. Affirmative action (benign discrimination) The Court has upheld affirmative action regulations granting beneficial treatment to women over men (such as tax exemptions, increased social security benefits, and increased protection from mandatory armed forces discharge) because providing a remedy for past gender-based discrimination is an important governmental interest. See Califano v. Webster, 430 U.S. 313 (1977); Schlesinger v. Ballard, 419 U.S. 498 (1975). 2. Legitimacy Classifications on the basis of status as a nonmarital child (i.e., those that distinguish between "legitimate" and "illegitimate" children) are subject to intermediate scrutiny—they must be substantially related to an important governmental interest. The Court will closely examine the purpose behind the distinction, and it will not uphold legislation designed to punish the offspring of a nonmarital relationship. To that end, states may not prohibit children of unmarried parents from receiving welfare benefits, New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973), workers' compensation benefits upon the death of a parent, Weber v. Aetna Cas. and Sur. Co., 406 U.S. 164 (1972), or an inheritance from an intestate father, Trimble v. Gordon, 430 U.S. 762 (1977). In addition, a state cannot require a paternity action brought on behalf of an illegitimate child to be commenced within a limited time after birth in order to secure child support, while imposing a similar time limit on a legitimate child seeking child support from a parent. Clark v. Jeter, 486 U.S. 456 (1988).

Due Process under Equal Protection

14th Amendment provides that "no state shall... deny to any person within its jurisdiction the equal protection of the laws." Therefore, the 14th Amendment applies to locality and states only. Although no Equal Protection Clause guarantee technically applies to the federal government, equal protection concepts are applied to the federal government via the Due Process Clause of the 5th Amendment. Therefore, states and localities have both equal protection and due process; for the federal government, equal protection and due process are called 5th Amendment Due Process.

Alienage

Classifications based on status as a lawful resident of the United States (as opposed to a citizen) are subject to a variety of different standards, depending on the level of government and the nature of the classification. a. Federal classification Because Congress has plenary power over aliens under Article I, a federal alienage classification is likely valid unless it is arbitrary and unreasonable. Example: Medicare regulations may require a five-year residency period for eligibility despite thereby excluding many lawful resident aliens. b. State classifications 1) Generally struck down The Court will generally apply the strict scrutiny test and strike down state laws that discriminate against aliens, such as laws prohibiting aliens from owning land, obtaining commercial fishing licenses, or being eligible for welfare benefits or civil service jobs. 2) Exception—participation in government functions A growing exception exists, however, for state laws that restrict or prohibit an alien's participation in government functions. Such laws need only have a rational relationship to a legitimate state interest. Laws prohibiting aliens from voting, serving on a jury, or being hired as police officers, probation officers, or public-school teachers have been upheld as preventing aliens from having a direct effect on the functioning of the government. EXAM NOTE: When determining whether a position or license from which aliens are excluded falls under the government function or political function exception, consider whether the position or license would allow the alien to "participate directly in the formulation, execution, or review of broad public policy" or would allow the alien to exercise "broad discretion." c. Undocumented aliens Undocumented aliens are not a suspect class, but the states may not deny primary or secondary public education benefits to undocumented aliens.

Race, Ethnicity, and National Origin

Laws or regulations that intentionally disadvantage on the basis of race, ethnicity, or national origin have almost always been struck down for failing to advance a compelling state interest. One exception was Korematsu v. United States, 323 U.S. 214 (1944), in which the internment of Japanese-Americans during World War II was upheld in the name of national security. a. School integration Because discrimination must be intentional in order to violate the Constitution, only intentional (de jure) segregation in schools violates the Equal Protection Clause. Moreover, a court cannot impose a remedy that involves multiple school districts unless there is evidence of intentional segregation in each district. If a school board does not take steps to eliminate intentional racial segregation of schools, a court can order the district to implement measures, such as busing, to remedy the discrimination. Court-ordered busing is temporary, however, and must be terminated once the "vestiges of past discrimination" have been eliminated.

Suspect Classifications

Laws that categorize based on race, ethnicity, national origin, or (in some cases) alienage are considered suspect and therefore require closer judicial examination. Such laws are subject to strict scrutiny and are invalid unless they are necessary to achieve a compelling governmental interest.

General Considerations

Privileges or Immunities of National Citizenship under the 14th Amendment mean nothing, never the right answer. Privileges and immunities of State Citizenship Clause in Article 4 (Comity Clause) has a narrow but important meaning. It prohibits serious discrimination against out-of-state individuals, especially in the context of access to the private job market, i.e., prohibits requiring those work in state to live in state.

Affirmative Action

Programs that favor racial or ethnic minorities are also subject to strict scrutiny. 1) Past discrimination by government For a governmental affirmative action program to survive, the relevant governmental entity must show more than a history of societal discrimination. The government—whether federal, state, or local—must itself be guilty of specific past discrimination against the group it is seeking to favor, and the remedy must be narrowly tailored to end that discrimination and eliminate its effects. In other words, the elimination of past discrimination in a particular governmental institution is a compelling state interest; attempting to remedy general societal injustice through affirmative action is not. 2) Diversity in public universities and colleges Race may be used as a "plus factor" (i.e., one of a range of factors to consider) in determining whether a student should be admitted to a public college or university, as there is a compelling interest in obtaining the educational benefits of a diverse student body. The use of racial quotas or of race as a determinative criterion, however, violates equal protection and is unconstitutional. Race may not be considered unless the admissions process used to achieve a diverse student body can withstand strict scrutiny. Strict scrutiny here requires the university to clearly demonstrate that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary to the accomplishment of its purpose. 3) Diversity in public elementary and high schools A school district may not assign students to schools on the basis of race unless it is necessary to accomplish a compelling interest—e.g., remedy past discrimination. However, a district may use facially race-neutral criteria that may have the same effect, such as strategic site selection for new schools or the redrawing of attendance zones. 4) Private affirmative action Recall that the Equal Protection Clause applies only to governmental action, so private employers are not restricted by it. Discrimination by private employers is nonetheless regulated by federal statute pursuant to Congress's power under the enabling clauses of the Thirteenth and Fourteenth Amendments and the Commerce Clause. c. Racial gerrymandering Race may not be the predominant factor in determining the boundary lines of legislative districts.

Standards of Review for Equal Protection - Strict Scrutiny

Same as for Substantive Due Process. Strict Scrutiny - is the law necessary for a compelling interest? Burden is on the government to prove that law is necessary. Applicability The strict scrutiny test is applied if a fundamental right or a suspect classification is involved. Suspect classes are: 1) race; 2) ethnicity; 3) national origin; 4) if classification is by state law, alienage.

Intermediate Scrutiny

Test To be constitutional, the law must be substantially related to an important government interest. Burden of proof Although the Court has not clearly stated the rule, the burden appears generally to be on the government to prove that the law in question passes intermediate scrutiny. As with strict scrutiny (and unlike rational basis review), the government must defend the interest(s) it stated when the law was enacted, not just some conceivable legitimate interest. Applicability Intermediate scrutiny is used when a classification is based on gender or status as a non-marital child (legitimacy). Note that in gender cases, there must be an "exceedingly persuasive justification" for the classification, which may bring the standard in such cases closer to strict scrutiny.

Rational Basis

Test A law passes the rational basis standard of review if it is rationally related to a legitimate state interest. This is a test of minimal scrutiny. Burden of proof Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational. Applicability The rational basis standard is used in all cases that one of the higher standards (intermediate or strict scrutiny) does not apply. Thus, rational basis review applies to laws drawing distinctions based on age, wealth, weight, or most other classifications, as well as to any distinctions drawn for business or economic reasons. Some classifications, although nominally subject to rational basis review, in practice receive heightened scrutiny. When the government has acted out of animus toward or fear of a particular group, that action—even if not involving a suspect or a quasi-suspect classification—will be searchingly reviewed, and may be struck down even under a rational basis test. (DOMA Case - rational basis with teeth).

Fundamental Rights Unique to Equal Protection

The fundamental rights guaranteed by substantive due process are often protected by equal protection principles as well. Thus, impingement of the right to vote, to travel, or to marry may trigger an inquiry under either the Due Process Clause or the Equal Protection Clause. However, certain rights and principles are particular to equal protection. EXAM NOTE: The right to travel and the right to vote are the most frequently tested fundamental rights in the area of equal protection. (Often, both the Due Process Clause and the Equal Protection Clause will apply. Equal protection predominates if the question emphasizes denial of a right to a particular group, and it does not apply if the denial of the right is universal.)

Fundamental Right - One Person, One Vote

The principle of "one person, one vote" holds that one person's vote must be essentially equal to any other person's vote. To that end, when the government establishes voting districts for the election of representatives, the number of persons in each district must be approximately equal. a. Congressional districts When states establish districts for congressional elections, they must achieve nearly precise mathematical equality between the districts. This restriction is imposed on the states by Article I, Section 2, which requires members of the House to be chosen by "the People of the several States." An unexplained deviation of less than one percent may invalidate the statewide congressional district plan. Variations may be justified by the state on the basis of consistently applied, legitimate state objectives, such as respecting municipal political subdivision boundaries, creating geographic compact districts, and avoiding contests between incumbent representatives. In addition, variations based on anticipated population shifts may be acceptable when such shifts can be predicted with a high degree of accuracy, and population trends are thoroughly documented. Kirkpatrick v. Preisler, 394 U.S. 526 (1969) (variation in population of slightly less than six percent violated the "one person, one vote" rule); Karcher v. Daggett, 462 U.S. 725 (1983) (variation of slightly less than 0.7 percent violated the "one person, one vote" rule). 1) Congressional apportionment of House members Congress, in apportioning members of the House among the states pursuant to Article I, Section 2, is not held to the "mathematical equality" standard. The method adopted by Congress is entitled to judicial deference and is assumed to be in good faith. b. State and local districts The size of electoral districts may vary much more in the case of state and local elections, as long as the variance is not unjustifiably large. A variation of less than 10% is rebuttably presumed to be a minor deviation that does not constitute a prima facie case for discrimination. When the maximum variation is 10% or greater, the state must show that the deviation from equality between the districts is reasonable and designed to promote a legitimate state interest.

Proving Discrimination

To trigger strict or intermediate scrutiny, there must be discriminatory intent on the part of the government. The fact that legislation has a disparate effect on people of different races, genders, etc., without intent, is insufficient. Discriminatory intent can be shown facially, as applied, or when there is a discriminatory motive. Facial discrimination A law that, by its very language, creates distinctions between classes of persons is discriminatory on its face. Example: An ordinance states that only males will be considered for a city's training academy for firefighters. Discriminatory application A law that appears neutral on its face may be applied in a discriminatory fashion. If the challenger can prove that a discriminatory purpose was used when applying the law, then the law will be invalidated. Example: A city's ordinance concerning the police academy say nothing about gender, but in practice only men are considered for admission. Discriminatory motive A law that is neutral on its face and in its application may still result in a disparate impact. By itself, however, a disparate impact is not sufficient to trigger strict or intermediate scrutiny; proof of discriminatory motive or intent is required to show a violation of the Equal Protection Clause. Example: A city's paramedic training school is theoretically open to both men and women, but the entrance test includes a height requirement that disproportionately excludes women.

Gerrymandering

a. Racial discrimination 1) Vote dilution When a state draws election districts for the purpose of scattering a racial or ethnic minority among several districts in order to prevent the minority from exercising its voting strength, the state's action is a violation of the Equal Protection Clause. 2) Majority-minority districts Under the Equal Protection Clause, election districts for public office may not be drawn using race as the predominant factor in determining the boundary lines, unless the district plan can survive strict scrutiny. This restriction applies even when the district is drawn to favor historically disenfranchised groups. The state can use traditional factors—such as compactness, contiguity, or honoring political subdivisions—as the bases for the district, and it may only consider race if it does not predominate over other considerations. A district's bizarre shape can be used as evidence that race was a predominating factor, but such a shape is not necessary for a finding of racial gerrymandering. a) Voting Rights Act The Voting Rights Act (42 U.S.C. § 1973 et seq.) requires racial gerrymandering to ensure minority success in elections by creating majority-minority districts (i.e., affirmative gerrymandering). Until recently, the Act required federal pre-clearance for changes in voting rules, including redistricting, for specific southern states and a few other local governmental units. However, the formula used as a basis for subjecting jurisdictions to preclearance has been declared unconstitutional because it no longer reflects current conditions; therefore, it can no longer be used. Receiving federal pre-clearance for a redistricting plan does not ensure that plan will avoid conflicting with the Equal Protection Clause. b. Political discrimination Partisan political gerrymandering may violate the Equal Protection Clause if the challenger can show "both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group." However, lack of comprehensive and neutral principles for drawing electoral boundaries as well as the absence of rules to confine judicial intervention can prevent adjudication of political gerrymandering claims.