An introduction to this diary series can be found here. Jim Crow 2.0
Before taking up other issues such as the apportionment of legislative districts and voting rights, it would be useful to explore the equal protection clause of the 14th amendment and the varied history of its interpretation and application. At the end of the civil war the US was a nation divided. The north had prevailed militarily by its greater population and economic strength. However, most white southerners were entirely unwilling to see the error of their ways. The original constitution had attempted to sweep important issues that were already dividing the nation under the rug. In 1865 it was apparent that the effort had failed and it needed fixing. The 13th, 14th and 15th amendments were the attempts of the people who remained in congress to impose a solution. The states of the Confederacy were required to subscribe to them in order to gain readmission to the union.
The 14th amendment has five sections. Only the first one has had much enduring impact on legal and political institutions.
Section 1. 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.It is the final phrase nor deny to any person within its jurisdiction the equal protection of the laws that has become known as the equal protection clause, EPC. This is probably what most people think about when they encounter a reference to the 14th amendment. However, it is a small piece of a document that attempts to clean up many problems. The issues dealing with the immediate aftermath of the war drew a lot more political attention at the time. The amendment as a whole is not centrally focused on what we have come to term civil rights. It contains this little gem in section two.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.An additional act of congress was required in order to actually confer citizenship on the former slaves.
Courts are political institutions. The judges who sit on them are political appointees and they generally are selected in terms of the politics of the president making the appointment. From 1867 to 1954 the federal courts did not pay a lot of attention to the EPC. During the 1880s SCOTUS applied it in a couple of decisions, but in 1896 the decision issued in Plessy v. Ferguson relegated it to the status of being virtually meaningless. They held that racially segregated facilities were constitutional if they were separate but equal. Federal courts continued to pursue this line of judicial reasoning.
In 1954 the Warren court fired the opening shot is what became a judicial revolution with its unanimous decision in Brown v Board of Education. They held that racial segregation per se, regardless of the quality of facilities, was a violation of the EPC. The court continued to apply this basic principle in a number of other cases dealing with a variety of government functions, including legislative apportionment and voting rights. It became a solidly established judicial precedent. It was later extended to cover discrimination on the basis of sex/gender. The present legal debate is over whether it should be applied to the issue of sexual orientation.
For half a century we had accepted this interpretation of the EPC and expected it to control court decisions. However, anybody who doubts the assertion that courts are political institutions, need look no further than the infamous case of Bush v Gore. The outcome of the 2000 presidential election became trapped in the land of the hanging chad. The Republican appointees to the US Supreme Court took it upon themselves to decide the outcome and they used the EPC as the spurious rationale for their decision.
The constitution provides little in the way of guidance as to what to do in the event of a disputed election. The 1876 election was such a dispute and it was congress that eventually cobbled together a resolution to the crisis. Since there was no precedent for SCOTUS as the arbiter of elections they had to create some constitutional justification for their intervention.
The Supreme Court, in a per curiam opinion, ruled that the Florida Supreme Court's decision, calling for a statewide recount, violated the Equal Protection Clause of the Fourteenth Amendment. This ruling was by a 7-2 vote, but (as discussed more fully in the next subsection below) two of the seven disagreed with the Court's remedy for the Equal Protection violation. The Court held that the Equal Protection Clause guarantees to individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment". Even if the recount was fair in theory, it was unfair in practice. The record, as weighed by the Florida Supreme Court, suggested that different standards were seemingly applied to the recount from ballot to ballot, precinct to precinct, and county to county, even when identical types of ballots and machines were used.This decision left many legal scholars with their jaws dropping. There was absolutely no precedent for such an interpretation and application of the EPC. The inclusion of this statement in the majority opinion strongly suggest that the decision was a matter of political expediency.
According to the Court, the statewide standard (that a "legal vote" is "one in which there is a 'clear indication of the intent of the voter'") could not guarantee that each county would count the votes in a constitutionally permissible fashion. The Court stated that the per curiam opinion's applicability was "limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."
"Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."This appeared to many critics as an attempt to block use of the decision as a precedent in other cases. There are many other things about this decision to criticize. It was messy and chaotic. All of the justices essentially responded as political actors. The decision is the reason that I think it useful to devote a separate diary to the topic of the EPC. I do not think that we can necessarily assume that SCOTUS can always be relied on to put democratic principles before political considerations. I also do not think that we can assume that the EPC will inevitably be interpreted in the same way that it has been over the past 50 years ago.
Even without the level of political drama that was created by the 2000 election, there are many issues related to the electoral process that don't necessarily turn on matters derived from the EPC. People are suggesting that the proposals to allocate electoral votes by congressional district could be argued to constitute such a violation. I seriously doubt that such an argument would prevail. The apportionment and configuration of a specific district can be held to account under those terms, but it would be very difficult in relation to such a general change in election law. At any rate the EPC is not going to be an all purpose cross in the mirror that will ward off all Republican electoral schemes.