Voting Rights Generally

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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

1: See Gray v. Sanders, 372 U.S. 368, 381 (1963) (holding that the conception of political equality means one person, one vote).
2: U.S. Const. art. I, § 2, cl. 1. See ArtI.S2.C1.1 Congressional Districting.
3: U.S. Const. amend. XIV, § 2. cl. 1.
4: Wesberry v. Sanders, 376 U.S. 1, 7–8 (1964).
5: Reynolds v. Simms, 377 U.S. 533, 557–58 (1964). See also Connor v. Johnson, 402 U.S. 690 (1971); Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187 (1972); White v. Weiser, 412 U.S. 783 (1973).
6: See Amdt14.S1.8.6.4 Equality Standard and Vote Dilution.
7: Ariz. State Leg. v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 791 (2015).
8: Davis v. Bandemer, 478 U.S. 109 (1986).
9: Rucho v. Common Cause, No. 18–422, slip op. at 20 (2019). See Amdt14.S1.8.6.3 Partisan Gerrymandering. See also North Carolina v. Covington, No. 17–1364, slip op. at 9–10 (2018) (per curiam) ( “[S]tate legislatures have primary jurisdiction over legislative reapportionment and a legislature’s ‘freedom of choice to devise substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should not be restricted beyond the clear commands’ of federal law. A district court is ‘not free . . . to disregard the political program of’ a state legislature on other bases.” ).
10: See, e.g., Hunt v. Cromartie, 526 U.S. 541 (1999); Hunter v. Underwood, 471 U.S. 222 (1985); Richardson v. Ramirez, 418 U.S. 24 (1974); Wright v. Rockefeller, 376 U.S. 52 (1964).
11: See, e.g., Gomillion v. Lightfoot, 364 U.S. 339, 340 (1960) (finding that, if proven, appellants’ claim that a city-wide redistricting map will discriminate based on race will constitute a violation of the Fourteenth and Fifteenth Amendments to the Constitution); see also Rogers v. Lodge, 458 U.S. 613 (1982); City of Mobile v. Bolden, 446 U.S. 55 (1980); Wise v. Lipscomb, 437 U.S. 535 (1978); United Jewish Orgs. v. Carey, 430 U.S. 144 (1977); White v. Regester, 412 U.S. 755 (1973); Whitcomb v. Chavis, 403 U.S. 124 (1971); Kilgarlin v. Hill, 386 U.S. 120 (1967); Burns v. Richardson, 384 U.S. 73 (1966); Fortson v. Dorsey, 379 U.S. 433 (1965).
12: In a 1993 ruling, Shaw v. Reno, the Supreme Court first recognized a claim of racial gerrymandering, holding that the challengers to a redistricting plan had stated a claim under the Equal Protection Clause of the Constitution. See Shaw v. Reno, 509 U.S. 630, 639–52 (1993) (Shaw I). See Amdt14.S1.8.6.6 Racial Vote Dilution and Racial Gerrymandering.
13: 52 U.S.C. §§ 10301, 10303(f). See also Upham v. Seamon, 456 U.S. 37, 41 (1982) (per curiam) (emphasizing that the drawing of legislative districts “is primarily a matter for legislative consideration and determination, and that judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so” ) (internal quotation marks omitted).
14: See Bartlett v. Strickland, 556 U.S. 1, 13 (2009).
15: See Thornburg v Gingles, 478 U.S. 30, 46–47 (1986).
16: Miller v. Johnson, 515 U.S. 900, 912–15 (1995). See also Cooper v. Harris, No. 15–1262 (2017) (holding that two congressional districts constituted unconstitutional racial gerrymanders).
17: See Miller, 515 U.S. 900 at 916; see also, e.g., Vieth v. Jubelirer, 541 U.S. 267, 348 (2004) (listing traditional redistricting criteria to include contiguity, compactness, respect for political subdivisions, and conformity with geographic features like rivers and mountains).
18: Miller, 515 U.S. at 916.
19: See, e.g., Shaw I, 509 U.S. at 641 ( “Our focus is on appellants’ claim that the State engaged in unconstitutional racial gerrymandering.” ) See also North Carolina v. Covington, No. 17–1364, slip op. (2018) (per curiam).
20: Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50–51 (1959). See also Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978); Hill v. Stone, 421 U.S. 289, 297 (1975); Kramer v. Union Free School Dist., 395 U.S. 621, 626–28 (1969).
21: See Dunn v. Blumstein, 405 U.S. 330, 342 (1972).
22: See Harper v. Virginia Bd. of Elections, 383 U.S. 663, 670 (1966).
23: See Crawford v. Marion Co. Election Bd., 553 U.S. 181, 198 (2008) (plurality opinion) (distinguishing photo identification requirement from a poll tax or fee and determining that the photo identification requirement did not constitute a substantial burden). See Amdt14.S1.8.6.2 Voter Qualifications.
24: Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997). See also Hadnott v. Amos, 394 U.S. 358 (1971). See Amdt14.S1.8.6.7 Ballot Access.
25: Gray v. Sanders, 372 U.S. 368, 379 (1963). See Amdt14.S1.8.6.4 Equality Standard and Vote Dilution.
26: See Bush v. Gore, 531 U.S. 98, 110 (2000) (per curiam) ( “Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work.” ).
27: Id. at 104–05 (citing Harper v. Virginia Bd. of Elections, 383 U.S. at 665).
28: Id. at 109.