Voting and Citizenship

Harper v Virginia Board of Elections (1966)

*Background:* $1.50 poll tax was set in Virginia, impeding Harper from voting because she could not afford it. She claimed it was a violation of her Fourteenth Amendment right to equal protection, but VA used Breedlove v Suttles's ruling to justify their poll tax. Annie appealed to the Supreme Court. *Ruling* 6-3 vote in favor of Annie Harper, ruling the poll tax unconstitutional. They declared that voting was a fundamental right that could not be determined by someone's ability to pay. *Justice Douglas's Majority Opinion:* A violation of the 14th Amendment is present when affluence is a voting standard. Although license fees can be equated to poll taxes, poll taxes are discriminatory because they impede a citizen from the US from the fundamental right to vote and take part in the democratic process on the basis of wealth. *Justice Black's Dissenting Opinion:* Since the Breedlove case, the Constitution has not been amended. Treating someone different and not allowing them to vote is not downright discriminatory. Legal age limits or limits based on criminal backgrounds or mental health may also set some people back from voting, but they are laws that are set and are not under violation of the 14th. Black contends that the Court is not following the Constitution, but rather, their own beliefs of what's right and what's wrong, failing to use constitutional precedents or laws to justify their ruling. He accuses them of using the "natural law due process formula". *Justice Harlan's Dissenting Opinion:* Notes that poll taxes have been used throughout American history and does not believe that the Court has the Constitutional authority to determine that poll taxes are unconstitutional based on ideologies that are popular at that point in time.

The Lani Guinier Nomination Fight

*Background:* Lani Guinier, UPenn student and lawyer for the NAACP Legal Defense fund, was nominated by President Clinton as assistant attorney general for civil rights. He was known to be an advocate of cumulative voting and proportional representation for voting rights violations and their merits. Block claimed that she favored representation schemes favoring racial fixed numbers and Clinton withdrew the nomination. *Clint Bolick, Clinton's Quota Queens (1993):* Claims that Guinier favors representation schemes and believes in equal legislative outcomes for majority rule to ensure a fairer distribution of political power. *Lani Guinier, What I Would Have Told the Senate (1993):* Argues that the Voting Rights Act has failed at providing authentic representation. Cumulative voting can be beneficial to conservative and liberal groups. She provides examples to justify her reasoning.

Congressional Report on the Voting Rights Act of 1965

*Background:* President Lyndon B Johnson's goal to pass an effective voting rights bill was based on the idea that they could eliminate every remaining obstacle to the right and opportunity to vote. The following debate is based on a liberal attempt to ban poll taxes and the preclearance provision and a conservative attempt to limit the preclearance provision. The Voting Rights Act was approves and was signed on August 5, 1965. *Majority Report:* Intended to enforce the 15th amendment. Existing laws and the case-by-case litigation approach are ineffective and feed onto the discriminatory system that divides and attacks African Americans. "In enforcing the 15th Amendment Congress may forbid the use of voter qualification laws where necessary to meet the risk of continued or renewed violations of constitutional rights even though, in the absence of the course of illegal conduct predicated upon the use of such tests, the same laws might be unobjectionable." *Minority Report:* -Statement of Charles J. Bloch- "The sole power given to Congress by the 15th Amendment is to prevent the US or any state from denying certain people the right upon Congress to confer upon anyone the right to vote." -Statement of Thomas Watkins- The 15th amendment did not give Congress the power to prohibit discrimination on grounds of education. The color of one's skin should not determine whether we're allowed to vote or not. It does, however, allow the states to determine other qualifications as granted by the First Article of the Constitution. He calls for a constitutional amendment, not a constitutional shortcut.

Shaw v Reno (1993)

*Background:* Ruth Shaw, a white resident of North Carolina, filed suit against the US attorney general for being moved from the Second Congressional District to the Twelfth, claiming that the legislative district was an irregularly-shaped, black majority district. *Ruling:* 5-4 vote in favor of Shaw, ruling that the US and North Carolina engaged in unconstitutional racial gerrymander. The courts ruled that race-conscious electoral districting had to meed the same strict scrutiny standard as other race-conscious programs. *Justice O'Connor's Majority Opinion:* The Fourteenth Amendment requires state legislation that distinguishes their citizens based on race to be subjected to a compelling governmental interest. Gerrymandering based strictly on race will result in a political apartheid. Even if racial gerrymandering is utilized to fulfill a "good" purpose, it should be met with strict scrutiny because the "courts should bear in mind the difference between what the law permits and what it requires." *Justice White's Dissenting Opinion:* The North Carolina racial gerrymander is not an unconstitutional voting practice, in fact, its purpose is doing the exact opposite. White citizens are the majority and remain the majority, even after the two minority-majority districts, which allow people of color to be represented. Claims the court is focusing on the "looks" of the redistricting instead of the impact. *Justice Stevens's Dissenting Opinion:* The State only violates the Equal Protection Clause when the rights or representation of minorities are undermined. It exists when a majority does whatever is in its power to limit the representation of minorities, not when they are emphasized. "If it is permissible to draw boundaries to protect adequate representation of rural voters, Hasidic jews, polish Americans, or Republicans, it necessarily follows that it is permissible to do the same thing for members of the very minority group whose history in the United States gave birth to the Equal Protection Clause. *Justice Souter's Dissenting Opinion:* "Under our cases there is in general a requirement that in order to obtain relief under the Fourteenth Amendment, the purpose and effect of the districting must be to devalue the effectiveness of a voter compared to what, as a group member, he would otherwise be able to enjoy..."

Reynolds v Sims (1964)

*Background:* Sims and other members of the Birmingham business association sued Reynolds and other Alabama officials for failing to redistrict every ten years. The shift in Alabama district populations was impacting legislative districts, and they failed to do this for 60 years (since 1900). Sims claimed it was a violation of the Fourteenth Amendment and the lower courts agreed. Alabama appealed to the Supreme Court. *Ruling:* 8-1 vote affirming lower courts, ruling that the Constitution required state legislatures to be proportioned in a manner consistent with the one person, one vote principle. *Justice Warren's Opinion of the Court:* The right to vote freely is a fundamental right that require protection from abuse. Any imposition on the right to vote is abusing the principles of a representative government. Warrant continues to state that legislators represent people, and that it is a violation of majority rights just like it would be a violation of minority rights. He holds that the Equal Protections Clause of the 14th Amendment requires that the seats in both houses of bicameral state legislature must be apportioned on a population basis. *Justice Harlan's Dissenting Opinion:* "The Equal Protection Clause was never intended to inhibit the States in choosing any democratic method they pleased for the apportionment of their legislatures."

Rose, et al. Council for Better Education, 1989 Ky. 55 (1989)

*Background:* Sixty Kentucky schoo, districts filed suit claiming that the use of state revenue and local taxes violated Kentucky's constitution for failing to provide an "efficient" system of public schools, resulting in disparities in funding available for public schooling in individual districts. The State claimed that school financing raised non justifiable "political questions." *Ruling:* 5-2 decision by the Supreme Court of the State of Kentucky ruling the existing system unconstitutional. They asserted that the state constitution made education a fundamental right and required equal access. *Justice Stephens's Opinion of the Court:* Under sec. 183 of the Kentucky Constitution, "all common schools must be free, open to all students, and provide equal opportunities for all students to acquire the same education." Carrying out the intent to provide equal education is left up to the General Assembly. *Justice Vance's Dissenting Opinion:* "Not all academic failure is result of under-funding." The duty to provide an adequate system is not put to the courts, but rather, up to the General Assembly. *Justice Leibson's Dissenting Opinion:* The case is not justiciable... it ensues political questions.

Plyler v Doe (1982)

*Background:* Texas legislature allowed local school officials to deny students who could not provide proof of citizenship the right to attend public schools. The students claimed it was a violation of the due process and equal protection clauses under the Fourteenth Amendment, suing Plyler. The lower courts agreed and the state of Texas appealed to the US Supreme Court. *Ruling:* 5-4 vote in favor of the students, ruling that the Texas law was unconstitutional because they had no good reason to deny them the right to education and would lead to heightened constitutional scrutiny. *Justice Brennan's Opinion:* The Fourteenth Amendment is not just applicable to citizens. It is universal..."within its jurisdiction...", indicating that it extends to anyone within state territory. The Texas law is directed against children, and they have little to no control over their legal status and where they reside. Education is beneficial to maintaining a democratic government. *Justice Blackmun's Concurring Opinion:* When the state provides education to some and not to others, it leads to class distinctions inconsistent with the Equal Protection Clause. *Justice Burger's Dissenting Opinion:* The Equal Protection Clause shouldn't be applied just because children lack "control". There are many cases where people lack control but are not subject to federal or state protection.

Katzenbach v Morgan (1966)

*Background:* The Morgans objected a provision in the Voting Rights Act of 1965 that prohibited people who completed 6th grade in Puerto Rico on the grounds that they did not read English. They filed suit to assure that the attorney general would not enforce the provision. The lower courts agreed, declaring it unconstitutional. The US appealed to the Supreme Court. *Ruling:* 7-2 ruling in favor of Katzenbach, declaring that Congress acted constitutionally. *Justice Brennan's Majority Opinion:* Stressed that Section 5 of the amendment is "a positive grant of legislative power authorizing Congress to exercise its discretion in determining the need for and nature of legislation to secure Fourteenth Amendment guarantees." Justice Brennan applied the appropriateness standard of McCulloch v. Maryland (1819) to determine whether the legislation passed constitutional muster. Section 4(e) arguably expanded rights beyond what the Court had recognized in Lassiter, but Brennan ruled that Section 4(e) was appropriate. In doing so, he has often been credited with introducing the "ratchet theory" for congressional legislation enacted under Section 5. It held that Congress could ratchet up civil rights beyond what the Court had recognized, but Congress could not ratchet down judicially recognized rights. The "ratchet theory" essentially set judicially recognized rights as a support on which Congress could expand if it so chose. According to the theory, Brennan's opinion allowed for multiple interpreters of the Fourteenth Amendment, as opposed to just that of the judiciary. *Justice Harlan's Dissenting Opinion:* Justice Harlan criticized the "ratchet theory" and the idea of multiple interpreters of the 14th Amendment. Harlan relied on the separation of powers doctrine to argue that allowing Congress to interpret the 14th Amendment undercut the power of the judiciary. He objected to Congress having the power to interpret the 14th Amendment substantively (to create new rights). Harlan argued that the appropriate use of Section 5 power was the enforcement of judicially-recognized 14th Amendment rights.

Section 5 of the Fourteenth Amendment

1) Provides remedies for judicially ascertained unconstitutional violations. 2) Find the factual predicates of constitutional violations. 3) Forbid otherwise constitutional actions in order to prevent or deter unconstitutional behavior. 4) Independently interpret the rights protected by the Fourteenth Amendment.

Natural Law Due Process Formula

Black rejects the idea that judges have been given authority by the Constitution to enforce natural law principles that have not been incorporated into the constitutional text.