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5. Equality, Not Structure
- NYU Press
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Equality, Not Structure The End of Individual Rights? The changes I have advocated in the three preceding chapters recognize that courts (and the law professors providing them with unsolicited advice!) do not have particular expertise in the design of political systems or government entities across the United States. But courts remain the government actors of last resort who must referee some high-stakes political battles and protect basic rights of political equality, and the Supreme Court by necessity sets these basic refereeing rules and defines the protective floor. If the Supreme Court adopted the procedural and substantive changes to political equality jurisprudence of chapters 2, 3, and 4, American election law would change substantially. The Court would show much greater institutional modesty in defining the scope of new equal protection rights, following as much as leading society. In reviewing challenges to existing election laws, the Court would fulfill its primary purpose by protecting core equality principles from government intrusion. In appropriate cases, the Court would balance infringements on individual and group core political equality rights with other government interests, such as the interest in preventing voter confusion. In this careful balancing, the Court would police the problem of legislative self-interest through close means-ends scrutiny. It would not accept claims of voter confusion at face value. The Court also would defer to legislative value judgments about appropriate steps to expand political equality. Again, the Court would use close means-ends scrutiny to distinguish between measures aimed truly at expanding political equality and those measures masquerading as political equality measures enacted simply for legislative self-protection. As novel as my program is, there are elements that are familiar, even conservative. Calls for judicial modesty or minimalism echo conservative 5 138 calls for judicial restraint. And balancing remains a readily familiar tool when faced with competing claims between the government and individuals (or groups of individuals). Just arriving over the horizon, however, is a much more radical approach to election law cases. The approach views balancing of rights and state interests as passé. Instead of balancing, constitutional adjudicators should examine the “structure” or “functioning” of the election process and make appropriate adjustments consistent with defined systemic goals for the political system. Election law becomes transformed into “political regulation.”1 The trend, which Pamela Karlan has termed “structural equal protection ” in its judicial manifestation,2 has gained adherents both on the Supreme Court and among prominent members of the legal academy. It is about judicial hubris rather than judicial modesty or restraint. Because these structural theories require great intrusion by the judiciary into the political processes without sufficient justification, they are misguided and dangerous. I begin by describing the rise of structural equal protection in the Supreme Court, which Karlan and others have chronicled well. I focus the bulk of this chapter on a critique of structural theories in the legal academy , particularly the “political markets” model of Samuel Issacharoff and Richard H. Pildes. The Issacharoff-Pildes model is becoming the new election law orthodoxy, and this chapter offers a dissenting view at least to its more revolutionary strand. Structural Equal Protection in the Courts According to Karlan, under structural equal protection, “[t]he Court deploys the Equal Protection Clause not to protect the rights of an identifiable group of individuals, particularly a group unable to protect itself through operation of the normal political processes, but rather to regulate the institutional arrangements within which politics is conducted.”3 Karlan ’s Exhibit “A” is Shaw v. Reno.4 Readers will recall that Shaw arose out of North Carolina’s redistricting for the United States House of Representatives after the 1990 census. In order to satisfy Justice Department preclearance requirements under section 5 of the Voting Rights Act as the Justice Department then understood it, the North Carolina legislature created an extremely odd shaped second Equality, Not Structure | 139 [44.203.219.117] Project MUSE (2024-03-28 18:04 GMT) majority-minority district. The Court held that the creation of such a district could violate the Constitution’s equal protection guarantees, even absent proof that such a district diluted anyone’s voting rights. As Karlan explains, Shaw cannot be understood as a traditional voting rights case. The North Carolina districting denied no one the right to vote nor minimized anyone’s voting strength. “It was a claim that the very use of race in the process of redistricting was divisive and harmful.”5 The Shaw Court...