Equal Protection V – Voting and Travel

I.     Voting.

A.     Introduction.

1.     Law of nature, generally.

a.     Voting is a civil (man-created) right, not an inalienable (God-given) right.

b.     Voting laws must be neutral as to race, wealth, political viewpoint, etc.

c.     However, there is no lonang principle which requires “one person, one vote.” Why can’t a nation choose to have “one household – one vote,” or “one family – one vote”? See, U.S. Const. Art. I, § 2, Cl. 3.

2.     Modern view, generally.

a.     Voting is a fundamental right, any partiality with respect to which is subject to a strict scrutiny analysis.

b.     Voting rights may be restricted on the basis of age (under 18) and citizenship.

B.     Voter Qualifications (Restrictions on Right to Vote).

1.     Principles.

a.     Residency Requirements. Reasonable time periods for residency (e.g., 30 days) are valid. Congress may override state residency requirements in presidential elections and substitute its own.

b.     Property Ownership. Conditioning the right to vote or hold office on ownership of property is usually invalid. Exception: Special purpose elections (e.g., water storage districts).

c.     Poll Taxes. All poll taxes are per se unconstitutional.

2.     Harper v. Virginia State Bd. of Elections. Court strikes down state law requiring payment of a poll-tax as a condition of exercising state voting franchise.

a.     Court extends rationale of 24th amend. to state context, using the 14th amend. as its legal basis. Judicial activism?

b.     Is the right to vote as important as the Court claims? Does it preserve other basic civil rights? Do the Court’s opinions reflect voter preference? If not, does the Court protect or subvert basic rights? If so, is the Court any less political than the other government branches?

c.     A changing equality standard.

d.     Black: Whatever happened to judicial restraint?

e.     Harlan: Whatever happened to separation of powers?

C.     Legislative Districting (Dilution of Right to Vote).

1.     Law of nature.

a.     Voting rights may reflect the family order, i.e., “one vote per household” instead of “one vote per person.” See, U.S. Const. art. I, §2, cl. 3. Neither women, nor slaves, nor minors, could vote – and there was no constitutional problem.

b.     The determination of legislative districts is a matter of political discretion, not a legal obligation reviewable by the courts. “Political question” doctrine.

c.     Political representation is a legal, not a factual, relationship. The representative must be duly chosen by the people according to law; he does not solely represent the people who are like him factually.

2.     One Person, One Vote Principle.

a.     “One person, one vote” applies to any government official chosen by popular election from individual districts.

b.     Congressional Elections. Almost exact mathematical equality is required between congressional districts within a state.

c.     State and Local Elections. For state and local elections, the variance in the number of persons included within districts must not vary by more than a few percentage points.

d.     Exception – The apportionment requirement is inapplicable to officials either elected at large or appointed.

e.     Exception – The one person, one vote principle does not apply to elections for officials who do not exercise normal governmental authority but rather deal with matters of special interest in the community (e.g., water storage districts).

f.     Gerrymandering. Districting plans that intentionally disadvantage an identifiable racial or political group are invalid.

3.     Reynolds v. Sims. Court invalidates state redistricting plan which gave equal representation in state legislature to districts of widely varying population size.

a.     Troublesome issues (glossed over):

(1)     Political (nonjusticiable) questions.

(2)     Our nation as a democracy.

(3)     Rejection of “one household, one vote.”

b.     Federalism concerns:

(1)     Constitution left districting to state legislatures (that’s what makes it a political matter).

(2)     States precluded from bicameral system based on “one state senator per county” because of unique historical circumstances – but is this a legal difference?

(3)     Geography precluded as basis for districting.

c.     Interpretational concerns:

(1)     No express constitutional guarantee supports Court’s opinion.

(2)     Warren’s argument makes logical sense according to law of nature, but does that make the matter a federal constitutional issue?

(3)     Congress had not acted to enforce 14th amend. via §5.

(4)     Court stepped in where Congress had not yet tread – judicial activism.

4.     Karcher v. Daggett. Court overturns state districting plan in which population deviations were small, but “not the result of a good faith effort to achieve population equality.”

a.     Republicans did not like the way redistricting had occurred. Result: political infighting in the form of a lawsuit. Democratic view becomes the “state’s interest.” Is this political or what?

b.     Brennan: Mathematical equality.

(1)     Factual equality assumed: Equality = mathematical equality. Whose plan was better? The one in which population variances were the least.

(2)     What result if there had not been a competing plan in which the population variances were even smaller?

(3)     Federal census is the exclusive basis for “good faith” districting.

c.     Stevens: He doesn’t like gerrymandering.

d.     White: Mathematical exactitude will promote lawsuits. He favors a de minimus rule.

5.     Davis v. Bandemer. S.Ct. upholds state apportionment law in face of the claim it discriminated against Democrats.

a.     Political question.

(1)     Court’s standard: state legislature is not co-equal with S.Ct. What does this assume?

(2)     Historic standard: Is the matter within the discretion of one of the political (legislative or executive) branches.

(3)     Isn’t this a matter of state law (to determine what is, and what isn’t, within state legislative discretion)?

(4)     What is a “judicially manageable standard,” except matters of law, not discretion, policies, or facts and circumstances?

b.     The nature of representation.

(1)     What implicit assumptions are made as to who is “represented”? If black and white voters choose a white Congressman, does the Court see black voters as able to present a justiciable issue as to whether they are represented? If Democratic citizens live in a district having a Republican Senator, can’t they at least claim they aren’t represented? What does that do for jurisprudence?

(2)     What does it mean to be a representative? Does a representative have to bear factual resemblance to the people he/she represents? See 945-46.

(3)     If a representative ignores the pleas of a segment of the constituency, does that fact leave the population segment unrepresented? Does representation = political influence?

II.     Right to Travel.

A.     Generally.

1.     Law of nature.

a.     The right to travel between states is constitutionally guaranteed, but this has nothing to do with the validity of state residency requirements for the exercise of civil (man-made) rights.

b.     A nation may bar aliens from entry into that nation

c.     There is no right to enter a foreign nation based on the Great Commission. That is, the authority to evangelize and make religious disciples does not trump laws to protect national borders.

2.     Modern view.

a.     An individual has a fundamental right to migrate from state to state, but not every restriction on the right to cross state lines is an impairment of the right to travel.

b.     The dispensing of state benefits based on length of residency tends to be reviewed on a strict level of scrutiny.

c.     International travel is not a fundamental right. It will, however, be protected from arbitrary federal interference by the fifth amendment Due Process Clause; the rational basis standard applies.

B.     Cases.

1.     Shapiro v. Thompson (1969), p 969. Court strikes down various state laws requiring a one-year residency as a condition to receiving welfare benefits.

a.     Travel & migration.

(1)     What assumptions are made regarding the nexus between residency and the right to travel or migrate?

(2)     Do the statutes bar residency? [Alternate: Do they define residency for welfare purposes differently than for other state purposes?]

(3)     Do the statutes bar entry into the state? Historically, this was done.

(4)     No constitutional clause secures the right to travel. [Privileges & Immunities?]

b.     Welfare claim.

(1)     Is an economic disincentive the same as a legal bar?

(2)     Did the states have any obligation to provide welfare benefits to begin with?

(3)     Since when did welfare receipt become a constitutional right?

2.     Zobel v. Williams (1982). S.Ct. invalidates state law which provides for distribution of crude oil profits to citizens in proportion to their length of residency in the state.

a.     Burger (majority):

(1)     Unequal distribution of benefits to citizens raises an equal protection issue.

(2)     None of the statutory purposes proffered by the state rationally relate to the achievement of a valid state objective.

(3)     The statute fails under even the rational basis test (leaving open the question whether a stricter scrutiny may be applicable).

b.     Residency (law of nature).

(1)     State law can validly define residency for purpose of eliminating fraudulent claims resident status.

(2)     But, the determination of residency is a legal matter, thus, once determined to exist, is an all-or-nothing proposition. The factual length of residency is irrelevant for legal purposes.

(3)     Could rate of taxation depend upon taxpayer’s length of residency? No. Such a legal distinction would be a respecter of persons. Residency is not an action which people do, but a legal status of who people are.

c.     O’Connor (concurring):

(1)     The right to travel (per privileges and immunities clause) is at issue, not equal protection.

(2)     But, does this state law discriminate against non-residents?

(3)     Is the statutory plan a “disability of alienage,” as O’Connor says? How is alienage different from residency?

III.     Misc. Classifications.

A.     Legitimacy Classifications.

1.     Common law. Illegitimate children are presumed not to inherit from their fathers (but may inherit from their mothers). Inheritance follows the legal, not biological, relation.

a.     What about Jesus’ inheritance rights in view of Matt. 1:2-3; Gen. 38:24-30?

2.     Modern rule.

a.     Illegitimacy is a quasi-suspect classification which is subject to an intermediate, not a strict, level of scrutiny. That is, illegitimacy classifications must be substantially related to an important government interest.

b.     Discriminatory regulations intended to punish or disinherit illegitimate children are invalid, but may require illegitimates to prove parenthood to receive legal benefits.

3.     Lalli v. Lalli. Court upholds state law requiring illegitimate children to provide proof of paternity before they can inherit from their fathers by intestate succession.

a.     What purposes of the statute are controlling?

b.     State interest in orderly disposition of estates is preeminent.

c.     Why does the Court eschew “family order” purpose?

(1)     Avoidance of moral issue: right v. wrong human conduct.

(2)     Subordinates family rights to civil interests.

4.     Should legitimate / illegitimate children be treated differently at law?

B.     Retardation.

1.     Generally.

a.     Law of nature. “Retardation” is not a term capable of legal definition. Thus, legal distinctions based on retardation are prohibited as a form of “respecter of persons” based on who a person is, not on what they do.

b.     Modern view. Retardation classifications are subject to the rational basis standard.

2.     City of Cleburne v. Cleburne Living Center. S.Ct. overturns the denial of a special use permit for a group home for the mentally retarded as applied under a municipal ordinance.

a.     Level of scrutiny: rationally related to a legitimate state interest.

(1)     The ordinance was not declared facially invalid.

b.     The City’s action was based “on an irrational prejudice against the mentally retarded.”

(1)     Law of nature: Is there any basis for discriminating against the mentally retarded?

(2)     No. A classic “respecting of persons” based on who someone is, not what they do.

(3)     Who can say what retardation is, objectively? Is retardation something which is capable of a legal definition?

c.     Stevens (concurring): Equal protection analysis is “a continuum of judgmental responses to differing classifications.”

d.     Marshall (concurring and dissenting): Level of judicial scrutiny varies, depending on the situation. Yet, he chides the Court for not stating a “principled foundation.”

(1)     What is his view of law? the Constitution?

C.     Wealth.

1.     Law of nature. “You shall not be partial to the poor nor defer to the rich.” Lev. 19:15. Legal classifications based on wealth are prohibited.

2.     Modern view. Wealth classifications are not suspect. Rational basis standard applies.