Equal protection and fundamental rights

1. Equal protection andfundamental rights • We have seen already that courts will apply heightened scrutiny when a suspect class (e.g., blacks, women) is subject to discrimination or when a suspect-like class (e.g., hippies) is subject to discrimination, but the Supreme Court doesn’t want to recognize the class as suspect as a general matter. • In this part of the course, we will see that courts also apply heightened scrutiny under the equal protection clause when fundamental rights are at stake. The question then is what rights are fundamental for purposes of the equal protection clause? • Today we will see that procreation and voting are two of those fundamental rights.

2. Skinner • What were the facts in this case (page 762)? • Under Oklahoma law, people could be sterilized after their third conviction for a felony involving moral turpitude • Felonies for violation of the prohibitory laws, revenue acts, embezzlement or political offenses did not count • Skinner was convicted for stealing chickens once and armed robbery twice

3. Skinner • The Court observed that chicken thieves were treated differently under the law than were embezzlers • But the Court also observed that the law ordinarily can impose different penalties for chicken thievery and embezzlement • Why, then, did the statute violate the equal protection clause (page 763)?

4. Skinner • Procreation “involves one of the basic civil rights of man” • It is “fundamental to the very existence and survival of the race.” (natural law?) • “In evil or reckless hands, [the power to sterilize] can cause races or types which are inimical to the dominant group to wither and disappear.” (representation-reinforcement) • “There is no redemption for the individual whom the law touches. . . He is forever deprived of a basic liberty.” • Could Oklahoma have fixed the statute by removing the exemptions for those convicted of prohibitory laws, revenue acts, embezzlement or political offenses ? • No.

5. Skinner • How far does the right to procreate recognized by Skinner extend? • May people in prison insist on the opportunity to have sexual relations with their spouses for purposes of procreation? • Does the reasoning of Skinner only prevent the state from interfering with natural reproduction, or does some of the logic apply to state restrictions on physician-assisted reproductive technology? • May the state prohibit sperm or egg donation, surrogate motherhood, or cloning? • May the state limit assisted reproduction to couples?

6. The right to vote and equal protection • Originally, the Constitution left the states pretty much free to decide on eligibility rules for voting • The states had to let people vote in U.S. House elections if they could vote in elections for the most numerous branch of the state legislature • Some specific amendments imposed other restrictions on states • 15th Amend. and denial of voting on basis of race (1870) • 19th Amend. and denial of voting on basis of sex (1920) • 24th Amend. and requirement of poll tax in federal elections (1964) • 29th Amend. and voting at age 18 (1971) • Poll taxes and literacy tests were allowed in state elections until the 1960’s

7. The right to vote and equal protection • In 1964, the Supreme Court started to interpret the 14th Amendment to protect the right to vote • Reynolds v. Sims and the right to an undiluted vote (1964) • Harper v. Virginia State Board of Elections and the right to vote without paying a poll tax (1966) • Congress addressed the literacy test question by banning such tests in the Voting Rights Act of 1965

8. Harper • What were the facts in this case (page 767)? • Virginia authorized a poll tax not to exceed $1.50 (about $10 in today’s dollars) • How did the Court distinguish a poll tax from a literacy test? • The “ability to reach and write has some relation” to the “intelligent use of the ballot” • Wealth “is not germane to one’s ability to participate intelligently in the electoral process”

9. Harper • The Court also observed that “[l]ines drawn on the basis of wealth or property, like those of race [are] traditionally disfavored” (the suspect class part of Harper) • Did the poll tax law really draw a line based on wealth? • No. The law had a disparate impact on poor persons • Does this mean that all governmental fees are subject to strict scrutiny? • This part of Harper has been overtaken by subsequent case law. • The Court will require states to waive fees for poor persons for access to important interests (e.g., running for elected office, court filings) • How else might the Court have found a suspect class claim? • Disparate impact on minority voters

10. Harper • What kind of scrutiny did the Court apply? • “[W]here fundamental rights or liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined” (page 767) (the fundamental rights part of Harper) • Did the Court need to invoke heightened scrutiny? • If requiring a poll tax was “to introduce a capricious and irrelevant factor” (page 767), it didn’t satisfy even rational basis review • But the majority could have said that raising revenue to fund elections was a valid state interest (as did Justice Black)

11. Harper • Note an important point from the dissenters • Looking to tradition would have supported the use of a poll tax • This is an important distinction between equal protection and substantive due process—tradition is important when ascertaining fundamental rights under the due process clause but not when deciding when it is permissible under the equal protection clause to draw lines between people

12. Kramer • What were the facts in this case (page 770)? • New York permitted people to vote in school board elections only if • They owned or rented property subject to property taxes (i.e., they helped fund the schools) or • They had children in the schools • Why these requirements? • New York wanted to limit voting to those who were “primarily interested” in school board elections

13. Kramer • Why strict scrutiny? • Rational basis review is premised on the “assumption that the institutions of state government are structured so as to represent fairly all the people” (page 770) • Representation-reinforcement • Was there a compelling state interest? • There may be times when the state may restrict voting to those “primarily interested or primarily affected” (page 771)

14. Kramer • Why wasn’t the statute necessary/narrowly tailored? • Not in your excerpt, but some people with a real interest were not allowed to vote (e.g., Kramer lived with his parents and paid federal and state taxes and was “interested in and affected by school board decisions” or suppose a couple had young children not yet in the schools and they lived rent-free with grandparents of the children) • Other people who might not care about the schools were allowed to vote (e.g., a senior citizen with no grandchildren who was paying rent to a landlord)

15. Salyer and Ball • Kramer applied strict scrutiny very strictly, but some later cases upheld eligibility restrictions designed to identify people with a real interest in the elections: • The water storage or reclamation districts served a limited purpose • The districts were not engaged in “traditional state functions,” and • Those eligible to vote had a special interest in the activities of the districts • But note that water use in the West has profound environmental effects

16. Photo ID requirement • In the plurality opinion, Justice Stevens distinguished between invidious denials of the opportunity to vote (e.g., restrictions on the right to vote that are unrelated to voter qualifications) and “evenhanded restrictions that protect the integrity and reliability of the electoral process itself.” • For the evenhanded restrictions, a court must balance the interests put forward by the State against the burdens imposed by the restrictions. • Note that the statute does not apply to absentee voting, where fraud, is a bigger problem • In addition, Indiana does not allow forms of identification other than a government-issued photo identification card (e.g., no private university student id, no utility bills)

17. Vote dilution If it is not permissible to deprive people of the right to vote, it stands to reason that it would not be permissible to dilute a person’s vote. You can effectively deprive someone of the right to vote by sufficiently diluting their vote. If my vote has 1/100 the weight of your vote, then, as a practical matter, I have been denied the right to vote. Voter dilution cases came up because of substantial disparities in the populations of different voting districts

18. Reynolds • Voting districts in six states were challenged because of disparities in populations among the districts (page 775) • One Senate district in Alabama had 41 times the population as another Senate district. The Alabama Constitution of 1901 actually required regular reapportionments to maintain population balance, but the state had not done any reapportioning after the initial apportionment.

19. Reynolds • Voting is a fundamental right in a democratic society, so any alleged infringement of the right must be “carefully and meticulously scrutinized” (strict scrutiny) (page 775). • “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.” (page 775) • To allow disparities in voting districts would be to allow a minority of the population to control state legislatures (page 775) • But why not allow some freedom for states to protect minority interests (Stewart, pages 778-779)? Is it a problem of administrability (Ely, pages 779-780)? • “Seats in both houses of a bicameral state legislature must be apportioned on a population basis.” (page 776)

20. Reynolds • But if the U.S. Senate allows disproportionate representation (two senators for every state), why can’t the Alabama Senate have disproportionate voting (e.g., one senator per county)? • The two-senators-per-state provision is written into the Constitution (Article I § 3, cl. 1) • This was part of the deal that allowed previously-independent states to give up their sovereignty and become part of the union • Political subdivisions of states never have been sovereign entities

21. Reynolds • Must voting districts have exactly the same number of voters? • Some deviation is permissible. For example, keeping political subdivisions intact would be a legitimate state interest (page 777). • But population equality still must be the controlling consideration—you can preserve communities of interest, but you cannot give them a weightier vote • What about Justice Harlan’s concern about access of citizens to their legislators (page 777)? • The majority (full opinion) pointed out that with modern developments in transportation and communication, small legislative districts are not needed to ensure effective representation of people living in sparsely represented areas.

22. Applying Reynolds • How much can you deviate from one person, one vote? • Congressional districts must be drawn so that there is as much population equality as possible. Even if there is no more than a 0.7% deviation from the smallest to the largest district that is too much (page 781). • For states, there is much greater freedom. As long as the maximum deviation between any two districts is 10 percent, there is no problem. Above 10 percent, states might have some leeway if they can justify the greater deviation in terms of making districts compact, respecting municipal boundaries, preserving the cores of prior districts and avoiding contests between incumbent representatives (page 782).

23. Limits of Reynolds • Some supermajority voting requirements are permitted even though they give a minority disproportionate power (like the filibuster in the U.S. Senate) • West Virginia allowed to require a 60 percent vote before a political subdivision could incur debt by issuing bonds (page 780) • Didn’t apply to all issues; didn’t discriminate against an identifiable class of voters; didn’t require an overwhelming majority • New York allowed to require majorities of voters in cities and those living outside the cities before adoption of a new county charter (page 781)