   #copyright

Equal Protection Clause

2007 Schools Wikipedia Selection. Related subjects: Law

   The words inscribed above the entrance to the U.S. Supreme Court are:
   "Equal justice under law"
   Enlarge
   The words inscribed above the entrance to the U.S. Supreme Court are:
   "Equal justice under law"

   The Equal Protection Clause, part of the Fourteenth Amendment to the
   United States Constitution, provides that "no state shall… deny to any
   person within its jurisdiction the equal protection of the laws." The
   Equal Protection Clause can be seen as an attempt to secure the promise
   of the United States' professed commitment to the proposition that "
   all men are created equal" by empowering the judicary to enforce that
   principle against the states.

   More concretely, the Equal Protection Clause, along with the rest of
   the Fourteenth Amendment, marked a great shift in American
   constitutionalism. Before the enactment of the Fourteenth Amendment,
   the Bill of Rights protected individual rights only from invasion by
   the federal government. After the Fourteenth Amendment was enacted, the
   Constitution also protected rights from abridgement by state
   governments, even including some rights that arguably were not
   protected from abridgement by the federal government. In the wake of
   the Fourteenth Amendment, the states could not, among other things,
   deprive people of the equal protection of the laws. What exactly such a
   requirement means, of course, has been the subject of great debate; and
   the story of the Equal Protection Clause is the gradual explication of
   its meaning.

   For a long while after the Clause became a part of the Constitution, it
   was interpreted relatively narrowly. During and after World War II,
   however, the United States Supreme Court began to construe the Clause
   more expansively. During the 1960s, the other two branches of the
   federal government — the executive and the legislative — joined in, as
   Congress and the President passed and enforced legislation intended to
   ensure equality in education, employment, housing, lodging, and
   government benefits. While an expansive reading of the Clause was
   undercut, to some extent, by Court decisions of the 1970s and 1980s,
   the Equal Protection Clause remains an integral part of U.S.
   constitutional law.

Background

   Congressman John Bingham of Ohio was the principal framer of the Equal
   Protection Clause.
   Enlarge
   Congressman John Bingham of Ohio was the principal framer of the Equal
   Protection Clause.

   The Fourteenth Amendment was enacted in 1868, shortly after the Union
   victory in the American Civil War. Though the Thirteenth Amendment,
   which was proposed by Congress and ratified by the states in 1865, had
   abolished slavery, many ex- Confederate states adopted Black Codes
   following the war.

   These laws severely restricted the power of blacks to hold property and
   form legally enforceable contracts. They also created harsher criminal
   penalties for blacks than for whites.

   In response to the Black Codes, Congress enacted the Civil Rights Act
   of 1866, which provided that all those born in the United States were
   citizens of the United States (this provision was meant to overturn the
   Supreme Court's decision in Dred Scott v. Sandford), and required that
   "citizens of every race and colour ... [have] full and equal benefit of
   all laws and proceedings for the security of person and property, as is
   enjoyed by white citizens."

   Doubts about whether Congress could legitimately enact such a law under
   the then-existing Constitution led Congress to begin to draft and
   debate what would become the Equal Protection Clause of the Fourteenth
   Amendment. The effort was led by the Radical Republicans of both houses
   of Congress, including John Bingham, Charles Sumner, and Thaddeus
   Stevens. The most important among these, however, was Bingham, a
   Congressman from Ohio, who drafted the language of the Equal Protection
   Clause.

   The Southern states, of course, were opposed to the Civil Rights Act,
   but in 1865 Congress, exercising its power under Article I, section 5,
   clause 1 of the Constitution, to "be the Judge of the … Qualifications
   of its own Members," had excluded Southerners from Congress, declaring
   that their states, having seceded from the Union, could therefore not
   elect members to Congress. It was this fact—the fact that the
   Fourteenth Amendment was enacted by a " rump" Congress—that allowed the
   Equal Protection Clause, which white Southerners almost uniformly
   hated, to be passed by Congress and proposed to the states. Its
   ratification by the former Confederate states was made a condition of
   their reacceptance into the Union.

   By its terms, the Clause restrains only state governments. However, the
   Fifth Amendment's due process guarantee, beginning with Bolling v.
   Sharpe (1954), has been interpreted as imposing the same restrictions
   on the federal government.

Post-Civil War interpretation and the Plessy decision

   The Court that decided Plessy
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   The Court that decided Plessy

   The first truly landmark equal protection decision by the Supreme Court
   was Strauder v. West Virginia (1880). A black man convicted of murder
   by an all-white jury challenged a West Virginia statute excluding
   blacks from serving on juries. The Court asserted that the purpose of
   the Clause was


   Equal Protection Clause

     to assure to the colored race the enjoyment of all the civil rights
    that under the law are enjoyed by white persons, and to give to that
      race the protection of the general government, in that enjoyment,
                 whenever it should be denied by the States.


   Equal Protection Clause

   Exclusion of blacks from juries, the Court concluded, was a denial of
   equal protection to black defendants, since the jury had been "drawn
   from a panel from which the State has expressly excluded every man of
   [the defendant's] race."

   The next important postwar case was the Civil Rights Cases (1883), in
   which the constitutionality of the Civil Rights Act of 1875 was at
   issue. The Act provided that all persons should have "full and equal
   enjoyment of ... inns, public conveyances on land or water, theatres,
   and other places of public amusement." In its opinion, the Court
   promulgated what has since become known as the " State Action
   Doctrine," which limits the guarantees of the Equal Protection Clause
   only to acts done or otherwise "sanctioned in some way" by the state.
   Prohibiting blacks from attending plays or staying in inns was "simply
   a private wrong," provided, of course, that the state's law saw it as a
   wrong. Justice John Marshall Harlan dissented alone, saying, "I cannot
   resist the conclusion that the substance and spirit of the recent
   amendments of the Constitution have been sacrificed by a subtle and
   ingenious verbal criticism."

   Harlan went on to argue that because (1) "public conveyances on land
   and water" use the public highways, and (2) innkeepers engage in what
   is "a quasi-public employment," and (3) "places of public amusement"
   are licensed under the laws of the states, excluding blacks from using
   these services was an act sanctioned by the state.

   In its most notorious post-war reinterpretation of the Equal Protection
   Clause, Plessy v. Ferguson (1896), the Supreme Court upheld a Louisiana
   Jim Crow law that required the segregation of blacks and whites on
   railroads and mandated separate railway cars for members of the two
   races. The Court, speaking through Justice Henry B. Brown, ruled that
   the Equal Protection Clause had been intended to defend equality in
   civil rights, not equality in social arrangements. All that was
   therefore required of the law was reasonableness, and Louisiana's
   railway law amply met that requirement, being based on "the established
   usages, customs and traditions of the people."

   Justice Harlan again dissented. "Every one knows," he wrote,


   Equal Protection Clause

   that the statute in question had its origin in the purpose, not so much
    to exclude white persons from railroad cars occupied by blacks, as to
    exclude colored people from coaches occupied by or assigned to white
   persons.... [I]n view of the Constitution, in the eye of the law, there
     is in this country no superior, dominant, ruling class of citizens.
    There is no caste here. Our Constitution is colour-blind, and neither
                 knows nor tolerates classes among citizens.


   Equal Protection Clause

   Such "arbitrary separation" by race, Harlan concluded, was "a badge of
   servitude wholly inconsistent with the civil freedom and the equality
   before the law established by the Constitution."

   Since Brown v. Board of Education of Topeka, Kansas (1954), Justice
   Harlan's dissent in Plessy has been vindicated as a matter of legal
   doctrine, and the Clause has been interpreted as imposing a general
   restraint on the government's power to discriminate against people
   based on their membership in certain classes, including those based on
   race and sex (see below).

Between Plessy and Brown

   Thus the Plessy majority's interpretation of the Clause stood until
   Brown. However, the holding of Brown was prefigured, to some extent, by
   several earlier cases.

   The first of these was Missouri ex rel. Gaines v. Canada (1938), in
   which a black student at Missouri's all-black college sought admission
   to the law school at the all-white University of Missouri—there being
   no law school at the all-black college. Admission was denied him, and
   the Supreme Court, applying the separate-but-equal principle of Plessy,
   held that a State's offering a legal education to whites but not to
   blacks violated the Equal Protection Clause.

   Smith v. Allwright (1944) and Shelley v. Kraemer (1948), though not
   dealing with education, indicated the Court's increased willingness to
   find racial discrimination illegal. Smith declared that the Democratic
   primary in Texas, in which voting was restricted to whites alone, was
   unconstitutional, partly on equal protection grounds. Shelley concerned
   a privately made contract that prohibited "people of the Negro or
   Mongolian race" from living on a particular piece of land. Seeming to
   go against the spirit, if not the exact letter, of The Civil Rights
   Cases, the Court found that, although a discriminatory private contract
   could not violate the Equal Protection Clause, the courts' enforcement
   of such a contract could: after all, the Supreme Court reasoned, courts
   were part of the state.

   More important, however, were the companion cases Sweatt v. Painter and
   McLaurin v. Oklahoma State Regents, both decided in 1950. In McLaurin,
   the University of Oklahoma had admitted McLaurin, an African-American,
   but had restricted his activities there: he had to sit apart from the
   rest of the students in the classrooms and library, and could eat in
   the cafeteria only at a designated table. A unanimous Court, through
   Chief Justice Fred M. Vinson, said that Oklahoma had deprived McLaurin
   of the equal protection of the laws:


   Equal Protection Clause

     There is a vast difference—a Constitutional difference—between
      restrictions imposed by the state which prohibit the intellectual
    commingling of students, and the refusal of individuals to commingle
                    where the state presents no such bar.


   Equal Protection Clause

   The present situation, Vinson said, was the former.

   In Sweatt, the Court considered the constitutionality of Texas's state
   system of law schools, which educated blacks and whites at separate
   institutions. The Court (again through Chief Justice Vinson, and again
   with no dissenters) invalidated the school system—not because it
   separated students, but rather because the separate facilities were not
   equal. They lacked "substantial equality in the educational
   opportunities" offered to their students.

   All of these cases, including Brown, were litigated by the National
   Association for the Advancement of Colored People. It was Charles
   Hamilton Houston, a Harvard Law School graduate and a law professor at
   Howard University, who in the 1930s first began to challenge racial
   discrimination in the federal courts. Thurgood Marshall, a former
   student of Houston's and the future Solicitor General and Associate
   Justice of the Supreme Court, joined him. Both men were extraordinarily
   skilled appellate advocates, but part of their shrewdness lay in their
   careful choice of which cases to litigate—of which situations would be
   the best legal proving grounds for their cause.

Brown and its consequences

   When Earl Warren became Chief Justice in 1953, Brown had already come
   before the Court. While Vinson was still Chief Justice, there had been
   a preliminary vote on the case at a conference of all nine justices. At
   that time, the Court had split, with a majority of the justices voting
   that school segregation did not violate the Equal Protection Clause.
   Warren, however, through persuasion and good-natured cajoling—he had
   been an extremely successful Republican politician before joining the
   Court—was able to convince all eight associate justices to join his
   opinion declaring school segregation unconstitutional. In that opinion,
   Warren wrote:


   Equal Protection Clause

   To separate [children in grade and high schools] from others of similar
   age and qualifications solely because of their race generates a feeling
     of inferiority as to their status in the community that may affect
      their hearts and minds in a way unlikely ever to be undone.... We
       conclude that in the field of public education the doctrine of
   "separate but equal" has no place. Separate educational facilities are
                             inherently unequal.


   Equal Protection Clause

   The Court then set the case for re-argument on the question of what the
   solution would be. In Brown II, decided the next year, it was concluded
   that since the problems identified in the previous opinion were local,
   the solutions needed to be so as well. Thus the court devolved
   authority to local school boards and to the trial courts that had
   originally heard the cases. (Brown had actually been comprised of four
   different cases from four different states.) The trial courts and
   localities were told to desegregate with "all deliberate speed".

   Partly because of that enigmatic phrase, but mostly because of
   self-declared " massive resistance" in the South to the desegregation
   decision, integration did not begin in any significant way until the
   mid-1960s and then only to a small degree. In fact, much of the
   integration in the 1960s happened in response not to Brown but to the
   Civil Rights Act of 1964. The Supreme Court intervened a handful of
   times in the late 1950s and early 1960s, but its next major
   desegregation decision was Green v. New Kent County School Board
   (1968), in which Justice William J. Brennan, writing for a unanimous
   Court, rejected a "freedom-of-choice" school plan as inadequate. This
   was a significant act; freedom-of-choice plans had been very common
   responses to Brown. Under these plans, parents could choose to send
   their children to either a formerly white or a formerly black school.
   Whites almost never opted to attend black-identified schools, however,
   and blacks, from fear of violence or harassment, rarely attended
   white-identified schools.

   In response to Green, many Southern districts replaced
   freedom-of-choice with geographically based schooling plans; but
   because residential segregation was widespread, this had little effect,
   either. In 1971, the Court in Swann v. Charlotte-Mecklenburg Board of
   Education approved busing as a remedy to segregation; three years
   later, though, in the case of Milliken v. Bradley (1974), it set aside
   a lower court order that had required the busing of students between
   districts, instead of merely within a district. Milliken basically
   ended the Supreme Court's major involvement in school desegregation;
   however, up through the 1990s many federal trial courts remained
   involved in school desegregation cases, many of which had begun in the
   '50s and '60s. American public school systems, especially in large
   metropolitan areas, to a large extent are still de facto segregated.
   Whether due to Brown, to Congressional action or to societal change,
   the percentage of black students attending school districts a majority
   of whose students were black decreased somewhat until the early 1980s,
   at which point that percentage began to increase. By the late 1990s,
   the percentage of black students in mostly minority school districts
   had returned to about what it was in the late 1960s.

   There are, very broadly speaking, two ways to explain America's marked
   lack of success in school integration in the five decades since Brown.
   One way, sometimes voiced by political conservatives, argues that
   Brown's relative failure is due to the inherent limitations of law and
   the courts, which simply do not have the institutional competence to
   supervise the desegregation of whole school districts. Moreover, the
   federal government's, and especially the Supreme Court's, hubris
   actually provoked the resistance of locals, since education in the
   United States is traditionally a matter for local control. The other
   way to explain what has happened since Brown often has political
   liberals as its proponents; it argues that the Court's decree in Brown
   II was insufficiently rigorous to force segregated localities into
   action, and that real success began only after the other two branches
   of the federal government got involved—the Executive Branch (under
   Kennedy and Johnson) by encouraging the Department of Justice to pursue
   judicial remedies against resistant school districts, and Congress by
   passing the Civil Rights Act of 1964 and the Civil Rights Act of 1968.
   Liberals also point out that Richard Nixon's " southern strategy" was
   premised on a tacit support of segregation that continued when Nixon
   came to office, so that after 1968 the Executive was no longer behind
   the Court's constitutional commitments.

Carolene Products and the various levels of Equal Protection scrutiny

   Harlan Stone, author of Carolene Products
   Harlan Stone, author of Carolene Products

   Despite the undoubted importance of Brown, much of modern equal
   protection jurisprudence stems from the fourth footnote in United
   States v. Carolene Products Co. (1938), a Commerce Clause and
   substantive due process case. In 1937, the Court (in what was called
   the " switch in time that saved nine") had loosened its rules for
   deciding whether Congress could regulate certain commercial activities.
   In discussing the new presumption of constitutionality that the Court
   would apply to economic legislation, Justice Harlan Stone wrote:


   Equal Protection Clause

    [P]rejudice against discrete and insular minorities may be a special
     condition, which tends seriously to curtail the operation of those
   political processes ordinarily to be relied upon to protect minorities,
      and which may call for a correspondingly more searching judicial
                                  inquiry.


   Equal Protection Clause

   Thus were born the "more searching" levels of scrutiny—"strict" and
   "intermediate"—with which the Court would examine legislation directed
   at racial minorities and women. Although the Court first articulated a
   "strict scrutiny" standard for laws based on race-based distinctions in
   Hirabayashi v. United States (1943) and Korematsu v. United States
   (1944), the Court did not apply strict scrutiny, by that name, until
   the 1967 case of Loving v. Virginia, and that intermediate scrutiny did
   not command the approbation of a majority of the Court until the 1976
   case of Craig v. Boren.

   The Supreme Court has defined these levels of scrutiny in the following
   way:
     * Strict scrutiny (if the law categorizes on the basis of race): the
       law is unconstitutional unless it is "narrowly tailored" to serve a
       "compelling" government interest. In addition, there cannot be a
       "less restrictive" alternative available to achieve that compelling
       interest.
     * Intermediate scrutiny (if the law categorizes on the basis of sex):
       the law is unconstitutional unless it is "substantially related" to
       an "important" government interest. Note that in past decisions
       "sex" generally has meant gender.
     * Rational-basis test (if the law categorizes on some other basis):
       the law is constitutional so long as it is "reasonably related" to
       a "legitimate" government interest.

   There is, arguably, a fourth level of scrutiny for equal protection
   cases. In United States v. Virginia Justice Ruth Bader Ginsburg
   eschewed the language of intermediate scrutiny for sex-based
   discrimination and instead demanded that litigants demonstrate an
   "exceedingly persuasive" argument to justify gender discrimination.
   Whether this was simply a re-articulation of the doctrine of
   intermediate scrutiny or whether it created a new level of scrutiny
   between the intermediate and strict standards is unclear.

Discriminatory intent or disparate impact?

   Another controversial area of equal protection theory—although it seems
   that the legal doctrine has been settled by the Supreme Court—is the
   issue of whether an equal protection violation requires purposeful
   discrimination, or whether it merely requires what is termed "disparate
   impact."

   In other words, does the Equal Protection Clause outlaw public policies
   that cause racial disparities—for example, a public school examination
   that more white students than black students pass? Or, on the other
   hand, does it merely outlaw intentional bigotry by public officials?

   The Supreme Court has answered: It depends. In the context of Title VII
   of the Civil Rights Act of 1964, which forbids job discrimination on
   the basis of race, national origin, sex or religion—and applies both to
   private and to public employers—the Supreme Court has answered (in
   Griggs v. Duke Power Co. (1971)) that (1) if an employer's policy has
   disparate racial consequences, and (2) if the employer can't give a
   reasonable justification for such a policy on grounds of "business
   necessity," then the employer's policy violates Title VII. In the years
   since Griggs, courts have defined "business necessity" as requiring the
   employer to prove that whatever is causing the racial disparity—be it a
   test, an educational requirement, a hiring practice—has a demonstrable
   factual relationship to making the company more profitable.

   In most other situations, however, the Court's focus is on
   discriminatory intent. This was made clear in the seminal case of
   Arlington Heights v. Metropolitan Housing Corp. (1977). In that case,
   the plaintiff, a housing developer, sued a Chicago suburb that had
   refused to rezone a plot of land in order to allow low-income, racially
   integrated housing to be built. There was no clear evidence of racially
   discriminatory intent on the part of Arlington Heights's planning
   commission; the result, however, was racially disparate, since the
   refusal prevented more African-Americans and Hispanics than whites from
   moving in. Justice Lewis Powell, writing for the Court, stated, "Proof
   of racially discriminatory intent or purpose is required to show a
   violation of the Equal Protection Clause." Disparate impact merely has
   an evidentiary value; absent a "stark" pattern, said the Court, "impact
   is not determinative." (See also Washington v. Davis (1976).)

   Defenders of the Court's approach in Arlington Heights and Washington
   v. Davis argue that the Equal Protection Clause was not intended to
   guarantee equal outcomes, but rather equal opportunities; and that,
   therefore, we shouldn't be concerned with trying to fix every racially
   disparate effect—we should worry about only intentional bigotry. Others
   point out that the courts are merely enforcing the Equal Protection
   Clause, and that if the legislature wants to correct racially disparate
   effects, it may do so through further legislation. Critics of the
   approach, however, contend that focusing on intent and according only
   an evidentiary value to disparate racial impact misses the point.
   Racial bigotry, they say, is, especially nowadays, unconscious; giving
   much more weight to disparate impact can remedy the kind of unconscious
   racism that a requirement of conscious discriminatory intent cannot.
   This debate, though, goes on almost entirely in the academy, since the
   Supreme Court has not changed its basic approach as outlined in
   Arlington Heights.

Suspect classes

   The Supreme Court has seemed unwilling to extend "suspect class" status
   (i.e., status that makes a law that categorizes on that basis suspect,
   and therefore deserving of greater judicial scrutiny) to groups other
   than women and racial minorities. In City of Cleburne v. Cleburne
   Living Centre, Inc. (1985), the Court refused to make the
   developmentally disabled a suspect class. Many commentators have noted,
   however—and Justice Marshall so notes in his partial concurrence—that
   the Court does appear to examine the City of Cleburne's denial of a
   permit to a group home for mentally retarded people with a
   significantly higher degree of scrutiny than is typically associated
   with the rational-basis test.

   In Lawrence v. Texas (2003), the Court struck down a Texas statute
   prohibiting homosexual sodomy on substantive due process grounds. In
   Justice Sandra Day O'Connor's opinion concurring in the judgment,
   however, she argued that by prohibiting only homosexual sodomy, and not
   heterosexual sodomy as well, Texas's statute did not meet
   rational-basis review under the Equal Protection Clause; her opinion
   prominently cited City of Cleburne.

   Notably, O'Connor did not claim to apply a higher level of scrutiny
   than mere rational basis, and as a larger matter the Court has not
   extended suspect-class status to sexual orientation. Much as in City of
   Cleburne, though, the Court's decision in Romer v. Evans (1996), on
   which O'Connor also relied in her Lawrence opinion, and which struck
   down a Colorado constitutional amendment aimed at denying homosexuals
   "minority status, quota preferences, protected status or [a] claim of
   discrimination," seemed to employ a markedly higher level of scrutiny
   than the nominally applied rational-basis test. It seems probable,
   therefore, that the Court, whatever it may decide about the
   constitutionality of laws that prohibit same-sex unions, will not
   explicitly apply heightened scrutiny to them; however, this question is
   unresolved. It has been argued that discrimination based on sex should
   be interpreted to include discrimination based on sexual orientation,
   in which case intermediate scrutiny could apply to gay rights cases.

Affirmative action

   Affirmative action is the policy of consciously setting racial, ethnic,
   religious, or other kinds of diversity as a goal within an
   organization, and, in order to meet this goal, purposely selecting
   people from certain groups that have historically been oppressed or
   denied equal opportunities. In affirmative action, individuals of one
   or more of these minority backgrounds are preferred— ceteris
   paribus—over those who do not have such characteristics; such a
   preferential scheme is sometimes effected through quotas, though this
   need not necessarily be so.

   Although there were forms of what is now called affirmative action
   during the Reconstruction (most of which were implemented by the same
   persons who framed the Fourteenth Amendment) the modern history of
   affirmative action began with the Kennedy administration and started to
   flourish during the Johnson administration, with the Civil Rights Act
   of 1964 and two Executive Orders. These policies directed agencies of
   the federal government to employ a proportionate number of minorities
   whenever possible.

   Several important affirmative action cases to reach the Supreme Court
   have concerned government contractors—for instance, Adarand
   Constructors v. Peña (1995) and City of Richmond v. J.A. Croson Co.
   (1989). But the most famous cases have dealt with affirmative action as
   practiced by public universities: Regents of the University of
   California v. Bakke (1978), and two companion cases decided by the
   Supreme Court in 2003, Grutter v. Bollinger and Gratz v. Bollinger.

   In Bakke, the Court held that racial quotas are unconstitutional, but
   that educational institutions could legally use race as one of many
   factors to consider in their admissions process. In Grutter and Gratz,
   the Court upheld both Bakke as a precedent and the admissions policy of
   the University of Michigan law school. In dicta, however, Justice
   O'Connor, writing for the Court, said she expected that in 25 years,
   racial preferences would no longer be necessary. In Gratz, the Court
   invalidated Michigan's undergraduate admissions policy, on the grounds
   that unlike the law school's policy, which treated race not as one of
   many factors in an admissions process that looked to the individual
   applicant, the undergraduate policy used a point system that was
   excessively mechanistic.

   In these affirmative action cases, the Supreme Court has employed, or
   has said it employed, strict scrutiny, since the affirmative action
   policies challenged by the plaintiffs categorized by race. The policy
   in Grutter, and the Harvard College policy discussed by Justice
   Powell's opinion in Bakke, passed muster because the Court deemed that
   they were narrowly tailored to achieve a compelling interest in
   diversity. On one side, critics have argued that the scrutiny the Court
   has applied is much less searching than true strict scrutiny, and that
   the Court has acted not as a principled legal institution but as a
   biased political one. On the other side, it is argued that the purpose
   of the Equal Protection Clause is to prevent the socio-political
   subordination of some groups by others, not to prevent classification;
   since this is so, non-invidious classifications, such as those used by
   affirmative action programs, should not be subjected to heightened
   scrutiny.

The Equal Protection Clause and voting

   Although the Supreme Court ruled in Nixon v. Herndon (1927) and
   Gomillion v. Lightfoot (1960) that the Constitution prohibited denial
   of the vote based on race, those decisions were based on the Fifteenth
   Amendment. The first significant application of the Equal Protection
   Clause to voting law came in Baker v. Carr (1962), where the Court
   ruled that the districts that sent representatives to the Tennessee
   state legislature were so malapportioned (with some legislators
   representing ten times the number of residents as others) that they
   violated the Equal Protection Clause. This ruling was extended two
   years later in Reynolds v. Sims (1964), in which a "one man, one vote"
   standard was laid down: in both houses of state legislatures, each
   resident had to be given equal weight in representation.

   It may seem counterintuitive that the Equal Protection Clause should
   provide for equal voting rights; after all, it would seem to make the
   Fifteenth Amendment and the Nineteenth Amendment redundant. Indeed, it
   was on this argument, as well as on the legislative history of the
   Fourteenth Amendment, that Justice John M. Harlan (the grandson of the
   earlier Justice Harlan) relied in his dissent from Reynolds. Harlan
   quoted the congressional debates of 1866 to show that the framers did
   not intend for the Equal Protection Clause to extend to voting rights,
   and in reference to the Fifteenth and Nineteenth Amendments, he said:


   Equal Protection Clause

    If constitutional amendment was the only means by which all men and,
    later, women, could be guaranteed the right to vote at all, even for
    federal officers, how can it be that the far less obvious right to a
      particular kind of apportionment of state legislatures... can be
       conferred by judicial construction of the Fourteenth Amendment?
                         [Emphasis in the original.]


   Equal Protection Clause

   However, Reynolds and Baker do not lack a rationale, if seen in a
   broader perspective. The Supreme Court has repeatedly stated that
   voting is a "fundamental right" on the same plane as marriage (Loving
   v. Virginia), privacy ( Griswold v. Connecticut (1965)), or interstate
   travel (Shapiro v. Thompson (1969)). For any abridgment of those rights
   to be constitutional, the Court has held, the legislation must pass
   strict scrutiny. Thus, on this account, equal protection jurisprudence
   may be appropriately applied to voting rights.

   A recent use of Equal Protection doctrine came in Bush v. Gore (2000).
   At issue was the controversial recount in Florida in the aftermath of
   the 2000 presidential election. There, the Supreme Court decided that
   the different standards of counting ballots across Florida violated the
   Equal Protection Clause. It was not this decision that proved
   especially controversial among commentators, and indeed, the
   proposition gained seven out of nine votes; Justices Souter and Breyer
   joined the majority of five—but only, it should be emphasized, for the
   finding that there was an Equal Protection violation. What was
   controversial was, first, the remedy upon which the majority
   agreed—that even though there was an Equal Protection violation, there
   was not enough time for a recount—and second, the suggestion that the
   Equal Protection violation was true only on the facts of Bush v. Gore;
   commentators suggested that this meant that the Court did not wish its
   decision to have any precedential effect, and that this was evidence of
   its unprincipled decision-making.
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