Fourteenth Amendment, Section 1 — Equal Protection: Voting Rights

Amdt14.S1.8.6.1 Voting Rights Generally

The Supreme Court’s equal protection jurisprudence as applied to voting laws has most prominently been developed in the context of redistricting. The Supreme Court has interpreted the Constitution to require that electoral districts within a redistricting map contain an approximately equal number of persons, which is known as the equality standard or the principle of one person, one vote.¹ In 1964, the Court interpreted provisions of the Constitution stating that Representatives are to be chosen “by the People of the several States”² and “apportioned among the several States . . . according to their respective Numbers”³ to require that “as nearly as is practicable, one man’s vote in a congressional election is to be worth as much as another’s.”⁴ Later that year, the Court extended the equality standard to apply to state legislative redistricting under the Equal Protection Clause, requiring all participants in an election “to have an equal vote.”⁵ In a series of rulings since 1964, the Supreme Court has described the extent to which precise or ideal mathematical population equality among electoral districts is required.⁶

The issue of partisan gerrymandering, which is “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power,”⁷ has been litigated before the Supreme Court over the last three decades. In 1986, the Court ruled that partisan gerrymandering in state legislative redistricting was justiciable under the Equal Protection Clause, but a majority of the Justices could not agree on a test for ascertaining a violation.⁸ In 2019, the Court held that there were no judicially “discernible and manageable standards” for ascertaining violations.⁹

While the denial of the franchise on the basis of race or color violates the Fifteenth Amendment, election laws that treat voters differently based on race can also violate the guarantee of equal protection under the Fourteenth Amendment.¹⁰ Hence, under certain circumstances, redistricting maps that dilute and weaken Black and other minority voting strength may be held unconstitutional.¹¹ Much of the Supreme Court’s redistricting jurisprudence has been prompted by disputes concerning the interplay between the requirements of the Voting Rights Act (VRA) and the constitutional standards of equal protection.¹² That is, under certain circumstances, the VRA may require the creation of one or more majority-minority districts in a congressional redistricting plan in order to prevent the denial or abridgement of the right to vote based on race, color, or membership in a language minority.¹³ A majority-minority district is one in which a racial or language minority group comprises a voting majority.¹⁴ The creation of such districts can avoid minority vote dilution by helping ensure that racial or language minority groups are not submerged into the majority and, thereby, denied an equal opportunity to elect candidates of their choice.¹⁵ However, congressional redistricting plans must also conform with standards of equal protection under the Fourteenth Amendment to the Constitution.¹⁶ According to the Supreme Court, if race is the predominant factor in the drawing of district lines, above other traditional redistricting considerations—including compactness, contiguity, and respect for political subdivision lines—then a “strict scrutiny” standard of review is to be applied.¹⁷ To withstand strict scrutiny in this context, the state must demonstrate that it had a compelling governmental interest in creating a majority-minority district and the redistricting plan was narrowly tailored to further that compelling interest.¹⁸ These cases are often referred to as “racial gerrymandering” claims because the plaintiffs argue that race was improperly used in the drawing of district boundaries.¹⁹

The Supreme Court has applied principles of equal protection to various types of requirements for voting and elections. According to the Supreme Court, “[t]he States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised. . . absent of course the discrimination which the Constitution condemns.”²⁰ For example, in examining voter qualification laws, the Court invalidated excessive durational residency requirements²¹ and poll tax requirements,²² but upheld a requirement that voters present government-issued photo identification.²³ With regard to ballot access requirements, which establish prerequisites for a candidate’s name to appear on the ballot, the Court determined that if the requirements impose only “reasonable, nondiscriminatory restrictions” on ballot access, they will trigger a “less exacting review,” but if the requirements are considered to be “severe,” they “must be be narrowly tailored and advance a compelling state interest.”²⁴

According to the Supreme Court, once a geographical unit is established from which a representative is elected, the Equal Protection Clause requires all who vote in the election “to have an equal vote.”²⁵ In the 2000 presidential election contest, the Court determined that the Florida Supreme Court violated the Equal Protection Clause by not identifying and mandating uniform standards among counties for counting ballots.²⁶ Once the right to vote is granted equally, the state cannot later, by “arbitrary and disparate treatment, value one person’s vote over that of another,” the Court announced.²⁷ However, the Court limited its holding to “the present circumstances,” where “a state court with the power to assure uniformity” fails to provide “minimal procedural safeguards.”²⁸

Amdt14.S1.8.6.2 Voter Qualifications

The Supreme Court has determined that, under the Fourteenth Amendment’s Equal Protection Clause, states may require a duration of residency as a qualification to vote, but such requirements will be held unconstitutional unless the state can show that the requirement is necessary to serve a compelling interest.¹ According to the Court in Dunn v. Blumstein, “[t]his exacting test” applies because the right to vote is “a fundamental political right . . . preservative of all rights,” and because a “durational residence requirement directly impinges on the exercise of a second fundamental personal right, the right to travel.”² While acknowledging that states have “a legitimate and compelling interest” in preventing fraud by voters, in Dunn, the Court determined that a one-year residency requirement in a state and a three-month residency requirement in a county was not necessary to further “a compelling governmental interest.”³ In contrast, the Court in Marston v. Lewis upheld a fifty-day durational residency and voter registration requirement, determining that the law was necessary to serve “the State’s important interest in accurate voter lists.”⁴

In a landmark case, Harper v. Virginia State Board of Elections, the Supreme Court in 1966 held that restricting voting qualifications to those citizens who had paid a poll tax constituted invidious discrimination under the Fourteenth Amendment Equal Protection Clause.⁵ While underscoring that states have the limited power to establish qualifications for voting, the Court observed that “[w]ealth, like race, creed, or color is not germane to one’s ability to participate intelligently in the electoral process.”⁶ Extending this ruling, the Court held that the eligibility to vote in local school elections may not be limited to persons owning property in the district or who have children in school,⁷ and denied states the right to restrict the vote to property owners in elections on the issuance of revenue bonds⁸ or general obligation bonds.⁹ By contrast, the Court upheld a statute that required voters to present a government-issued photo identification in order to vote, as the state had not “required voters to pay a tax or a fee to obtain a new photo identification.”¹⁰ The Court added that, although obtaining a government-issued photo identification is an “inconvenience” to voters, it “surely does not qualify as a substantial burden.”¹¹

The Court has also evaluated challenges under the Equal Protection Clause to voter qualification laws in other contexts. For instance, the Court has determined that a state that exercised general criminal, taxing, and other jurisdiction over residents of a federal enclave within the state could not treat these persons as nonresidents for voting purposes because the residents of the enclave “have a stake equal to that of other” “residents of the state.”¹² In that vein, the Court invalidated a state constitutional provision prohibiting any member of the military, who entered military service outside the state, from establishing a voting residence within the state during the duration of their military service because it imposed an “invidious discrimination in violation of the Fourteenth Amendment.”¹³ Although the Court acknowledged the “special problems” presented to the state “in determining whether servicemen have actually acquired a new domicile in a State for franchise purposes,” the Court determined that the constitutional provision “goes beyond such rules.”¹⁴ With regard to prisoners, in a case applying rational basis scrutiny, the Court held that the failure of a state to provide for absentee balloting by unconvicted jail inmates, when absentee ballots were available to other classes of voters, did not deny equal protection when it was not shown that the inmates could not vote in any other way.¹⁵ Subsequently, however, the Court held unconstitutional a statute denying absentee registration and voting rights to persons confined awaiting trial or serving misdemeanor sentences.¹⁶

Amdt14.S1.8.6.3 Partisan Gerrymandering

Partisan political gerrymandering, “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power,”¹ is an issue that has vexed the federal courts for more than three decades.² Prior to the 1960s, the Supreme Court had determined that challenges to redistricting plans presented nonjusticiable political questions that were most appropriately addressed by the political branches of government, not the judiciary.³ In 1962, the Supreme Court held in the landmark ruling of Baker v. Carr that a constitutional challenge to a redistricting plan is justiciable, identifying factors for determining when a case presents a nonjusticiable political question, including “a lack of [a] judicially discoverable and manageable standard[ ] for resolving it.”⁴ In the years that followed, while invalidating redistricting maps on equal protection grounds for other reasons—inequality of population among districts⁵ or racial gerrymanding⁶—the Court did not nullify a map based on a determination of partisan gerrymandering.⁷

In the 1986 case of Davis v. Bandemer, the Court ruled that partisan gerrymandering in state legislative redistricting is justiciable under the Equal Protection Clause.⁸ Although the vote was 6-3 in favor of justiciability, a majority of the Justices could not agree on the proper test for determining whether the particular gerrymandering in this case was unconstitutional and reversed the lower court’s holding of unconstitutionality by a vote of 7-2.⁹ Hence, as a result of Bandemer, the Court left open the possibility that claims of unconstitutional partisan gerrymandering could be judicially reviewable, but did not ascertain a discernible and manageable standard for adjudicating such claims.¹⁰

Similarly, following Bandemer, the Supreme Court could not reach a consensus for several years on the proper test for adjudicating claims of unconstitutional partisan gerrymandering. First, in the 2004 ruling, Vieth v. Jubelirer, a four-Justice plurality would have overturned Bandemer to hold that “political gerrymandering claims are nonjusticiable.”¹¹ Justice Anthony Kennedy, casting the deciding vote and concurring in the Court’s judgment, agreed that the challengers before the Court had not yet articulated “comprehensive and neutral principles for drawing electoral boundaries” or any rules that would properly “limit and confine judicial intervention.”¹² Nonetheless, Justice Anthony Kennedy held out hope that in some future case, the Court could find “some limited and precise rationale” to adjudicate other partisan gerrymandering claims, thereby leaving Bandemer intact.¹³ In 2006, in League of United Latin American Citizens v. Perry, a splintered Court again failed to adopt a standard for adjudicating political gerrymandering claims, but did not overrule Bandemer by deciding such claims were nonjusticiable.¹⁴ Likewise, in 2018, the Court considered claims of partisan gerrymandering, but ultimately issued narrow rulings on procedural grounds specific to those cases.¹⁵

Ultimately, in the 2019 case, Rucho v. Common Cause, the Supreme Court held that there were no judicially “discernible and manageable standards” by which courts could adjudicate claims of unconstitutional partisan gerrymandering, thereby implicitly overruling Bandemer.¹⁶ According to the Court, the federal courts “are not equipped to apportion political power as a matter of fairness” and “it is not even clear what fairness looks like in this context.”¹⁷ As a result of Rucho, claims of unconstitutional partisan gerrymandering are not subject to federal court review because they present nonjusticiable political questions.¹⁸ Writing for the Court, Chief Justice John Roberts acknowledged that excessive partisan gerrymandering “reasonably seem[s] unjust,” stressing that the ruling “does not condone” it, but reiterated that “the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause.”¹⁹

Amdt14.S1.8.6.4 Equality Standard and Vote Dilution

The Supreme Court has interpreted the Constitution to require that electoral districts within a redistricting map contain an approximately equal number of persons.¹ This requirement is referred to as the “equality standard” or the principle of “one person, one vote.”² In 1964, the Court in Wesberry v. Sanders³ interpreted provisions of the Constitution stating that Representatives are to be chosen “by the People of the several States”⁴ and “apportioned among the several States . . . according to their respective Numbers”⁵ to require that “as nearly as is practicable, one man’s vote in a congressional election is to be worth as much as another’s.”⁶ Later in 1964, the Court in Reynolds v. Sims⁷ extended the equality standard to apply to state legislative redistricting under the Equal Protection Clause, requiring all participants in an election “to have an equal vote.”⁸

In a series of rulings since 1964, the Supreme Court has described the extent to which precise or ideal mathematical population equality among electoral districts is required.⁹ Ideal or precise equality is the average population that each district would contain if a state population were evenly distributed across all districts; and the total or “maximum population deviation” refers to the percentage difference from the ideal population between the most populated district and the least populated district in a redistricting map.¹⁰ In 1967, the Court announced that while “[d]e minimis deviations are unavoidable, . . . variations of 30% among [state legislative] senate districts and 40% among [state legislative] house districts can hardly be deemed de minimis,” emphasizing that none of the Court’s prior case law has approved of such large differences.¹¹ By contrast, evaluating the principle of equal protection in the context of a county governing body, the Court approved of a population disparity among districts of 11.9% because of a “long tradition of overlapping functions and dual personnel” in the county government and because the map did not intrinsically contain “bias tending to favor particular political interests or geographic areas.”¹²

Nine years after deciding Reynolds v. Sims, the Court continued to clarify the population equality requirement. Underscoring that less deviation from precise population equality is permissible for congressional districts than is permissible for state legislative districts, in 1973, the Court upheld a state legislative redistricting map that contained a total population percentage deviation of 16.4%.¹³ The Court reached its decision by determiing, in part, that the challenged map “may reasonably be said to advance the rational state policy of respecting the boundaries of political subdivisions.”¹⁴ In 1975, in holding that a 20% population deviation did not comport with standards of equal protection, the Court observed that a deviation of such “magnitude” cannot be constitutionally permissible without “significant state policies or other acceptable considerations that require adoption of a plan with so great a variance.”¹⁵ In 2016, the Court held that challengers to maps with a “minor” deviation of less than 10% must show that it is “more probable than not” that the deviation “reflects the predominance of illegitimate reapportionment factors,” concluding “that attacks on deviations under 10% will succeed only rarely, in unusual cases.”¹⁶ Also in 2016, the Court rejected the argument that the Equal Protection Clause prohibits states from using total population, instead of total voting population, in drawing state legislative redistricting maps.¹⁷

Amdt14.S1.8.6.5 Inequalities Within a State and Vote Dilution

Invoking the Equal Protection Clause of the Fourteenth Amendment, the Supreme Court effectively ended the 2000 presidential election contest. In Bush v. Gore, the Court determined that the Florida Supreme Court violated the Equal Protection Clause by not identifying and mandating uniform standards among counties for counting ballots.¹ The Florida court had ordered a partial manual recount of the Florida vote for presidential electors, requiring the counting of all ballots that contained a “clear indication of the intent of the voter,” but allowing the relevant counties to determine the physical characteristics of a ballot that would satisfy this test.²

According to the Supreme Court, the recount process approved by the Florida Supreme Court “is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter.”³ Once the right to vote is granted equally, the state cannot later, by “arbitrary and disparate treatment, value one person’s vote over that of another,” the Court announced.⁴ While acknowledging that local jurisdictions can implement different election systems, the Court underscored that it was remedying a state court ruling that failed to provide “at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.”⁵ However, the Court in Bush v. Gore limited its holding to “the present circumstances,” where “a state court with the power to assure uniformity” fails to provide “minimal procedural safeguards.”⁶ Citing the “many complexities” of application of equal protection “in election processes generally,” the Court distinguished the many situations where disparate treatment of votes results from different standards being applied by different local jurisdictions.⁷

Once a geographical unit is established from which a representative is elected, the Equal Protection Clause requires all who vote in the election “to have an equal vote.”⁸ In Gray v. Sanders, the Supreme Court invalidated a Georgia county unit system as a basis for tabulating votes whereby, based on population, each county was allocated a number of county-unit votes: “Counties with from 0 to 15,000 people were allotted two units; an additional one unit was allotted for the next 5,000 persons; an additional unit for the next 10,000 persons; another unit for each of the next two brackets of 15,000 persons; and, thereafter, two more units for each increase of 30,000 persons.”⁹ Although each qualified voter was provided one vote in the statewide election under the “county unit system,” the Court observed that the “end result weights the rural vote more heavily than the urban vote and weights some small rural counties heavier that other larger rural counties.”¹⁰ In striking down the law, the Court emphasized that standards of equal protection require that “[o]nce the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote—whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit.”¹¹ Further, the Court in Gray characterized analogies drawn between this case and the electoral college, redistricting, and “other phases of the problems of representation in state or federal legislatures or conventions” as “inapposite,” observing that the Constitution expressly contemplates those processes and this “case is only a voting case.”¹²

By contrast, in Gordon v. Lance, the Court approved a 60% affirmative vote requirement in a referendum election before constitutionally prescribed limits on bonded indebtedness or tax rates could be exceeded.¹³ Distinguishing its ruling in Gray v. Sanders, the Court pointed out that the equal protection violation found there was based on denying or diluting “voting power because of group characteristics-geographic location and property ownership-that bore no valid relation to the interest of those groups in the subject matter of the election . . . [and] was imposed irrespective of how members of those groups actually voted.”¹⁴ Further, while acknowledging that the requirement departed from strict majority rule, the Court pointed out that the Constitution did not prescribe majority rule, but instead, proscribed discrimination through dilution of voting power or denial of the franchise because of some class characteristic-race, urban residency, or the like-and the provision at issue in this case was neither directed to nor affected any identifiable class.¹⁵

Amdt14.S1.8.6.6 Racial Vote Dilution and Racial Gerrymandering

Much of the Supreme Court’s redistricting jurisprudence has been prompted by disputes concerning the interplay between the requirements of the Voting Rights Act (VRA) and the constitutional standards of equal protection.¹ That is, under certain circumstances, the VRA may require the creation of one or more “majority-minority” districts in a congressional redistricting plan in order to prevent the denial or abridgement of the right to vote based on race, color, or membership in a language minority.² A majority-minority district is one in which a racial or language minority group comprises a voting majority. The creation of such districts can avoid minority vote dilution by helping ensure that racial or language minority groups are not submerged into the majority and, thereby, denied an equal opportunity to elect candidates of their choice.

In its landmark 1986 decision Thornburg v. Gingles, the Supreme Court established a three-pronged test for proving vote dilution under Section 2 of the VRA.³ Under this test, (1) the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the minority group must be able to show that it is politically cohesive; and (3) the minority must be able to demonstrate that the majority votes sufficiently as a bloc to enable the majority to defeat the minority group’s preferred candidate absent special circumstances, such as the minority candidate running unopposed.⁴ Further interpreting the Gingles three-pronged test, in Bartlett v. Strickland, the Supreme Court ruled that the first prong of the test-requiring a minority group to be geographically compact enough to constitute a majority in a district-can only be satisfied if the minority group would constitute more than 50% of the voting population in a single-member district.⁵

In addition to the VRA, however, congressional redistricting plans must also conform with standards of equal protection under the Fourteenth Amendment to the Constitution. According to the Supreme Court, if race is the predominant factor in the drawing of district lines, above other traditional redistricting considerations-including compactness, contiguity, and respect for political subdivision lines-then a “strict scrutiny” standard of review is to be applied.⁶ To withstand strict scrutiny in this context, the state must demonstrate that it had a compelling governmental interest in creating a majority-minority district and the redistricting plan was narrowly tailored to further that compelling interest.⁷ These cases are often referred to as “racial gerrymandering” claims because the plaintiffs argue that race was improperly used in the drawing of district boundaries.⁸ Case law in this area has revealed that there can be tension between compliance with the VRA and conformance with standards of equal protection.⁹

In a series of cases, the Supreme Court has clarified the standards for ascertaining a racial gerrymandering claim under the Equal Protection Clause. For example, the Court has determined that successful claims of racial gerrymandering require plaintiffs to prove that racial considerations were “dominant and controlling” in the creation of the districts at issue.¹⁰ The Court has also held that in determining whether race is a predominant factor in the redistricting process, and thereby triggering strict scrutiny, a court must engage in a district-by-district analysis instead of analyzing the state as an undifferentiated whole.¹¹ Further, according to the Court, plaintiffs challenging a state legislative redistricting plan on racial gerrymandering grounds need not prove, as a threshold matter, that the plan conflicts with traditional redistricting criteria.¹² Nonetheless, the Court has held that plaintiffs need “to overcome the presumption of legislative good faith” by demonstrating that a legislature drew a redistricting map “with invidious intent.”¹³

Amdt14.S1.8.6.7 Ballot Access

State laws that specify prerequisites for the names of candidates to appear on election ballots are known as ballot access requirements. Generally, states enact ballot access requirements to prevent ballot overcrowding, voter confusion, election fraud, and to facilitate election administration.¹ Supreme Court case law demonstrates how ballot access requirements must comport with principles of equal protection under the Fourteenth Amendment.

While reasonable ballot access requirements are likely to be upheld, the Supreme Court has determined that the Constitution will not permit laws that impermissibly restrict or completely prohibit third-party and independent candidates from qualifying for the ballot.² According to the Court, on the condition that ballot access requirements do not “unfairly or unnecessarily burden” new party or independent candidates (that is, candidates not affiliated with a political party), it may be constitutional for states to provide different requirements based on whether a candidate is a nominee of a major political party, a minor or new party, or an independent candidate.³

In a series of ballot access cases, the Court has applied and refined this analysis. For instance, in the 1971 case of Jenness v. Fortson, the Court upheld ballot access requirements whereby candidates belonging to any political party that obtained 20% or more of the vote in the previous gubernatorial or presidential elections could obtain ballot access in the general election by winning the party’s primary election while independent or candidates of other parties were required to obtain signatures of at least 5% of those registered to vote at the last election for the office sought.⁴ According to the Court, from the perspective of a candidate, the ballot access requirement did not violate the Equal Protection Clause because neither of the prescribed methods “can be assumed to be inherently more burdensome than the other.”⁵ While recognizing that from the perspective of a political party, “the situation is somewhat different,” the Court nonetheless determined that by providing separate mechanisms for obtaining ballot access for new and established political parties, the state was simply acknowledging the differences between the two types of parties.⁶ As the Court explained, in enacting the ballot access requirements, the state “surely [had] an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization’s candidate on the ballot—the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.”⁷

In the 1974 case, Storer v. Brown, the Court was faced with a ballot access requirement that independent candidates “file a petition signed by voters not less in number than 5% of the total votes cast in California at the last general election.”⁸ However, the law did not permit registered voters who voted in the primary election to sign an independent candidate’s petition.⁹ In addition, the law prohibited an independent candidate from ballot access if the candidate voted in the preceding primary or had a registered affiliation with a political party “within one year prior to the immediately preceding primary.”¹⁰ According to the Court in Storer, “to comply with the First and Fourteenth Amendments the State must provide a feasible opportunity for new political organizations and their candidates to appear on the ballot.”¹¹ Acknowledging that “no litmus-paper test” exists for determining which requirements pass constitutional muster, the Court emphasized that is “very much a matter of ‘consider[ing] the facts and circumstances behind the law, the interest which the State claims to be protecting, and the interest of those who are disadvantaged by the classification.’”¹²

In the 1997 case Timmons v. Twin Cities Area New Party, the Supreme Court announced that when evaluating whether a state election law comports with the First and Fourteenth Amendments, courts will weigh the “‘character and magnitude’ of the burden” imposed by the restrictions against the government’s asserted interests, considering “the extent to which the State’s concerns make the burden necessary.”¹³ In Timmons, the Court held that if ballot access requirements impose only “reasonable, nondiscriminatory restrictions” on ballot access, they will trigger a “less exacting review” whereby “important regulatory interests” asserted by the state will typicially be sufficient “to justify ‘reasonable, nondiscriminatory restrictions.’”¹⁴ However, if restrictions are considered to be “severe,” the Court held that they “must be narrowly tailored and advance a compelling state interest.”¹⁵