The Representative Equality Principle: Disaggregating the Equal Protection Intent Standard

Bertrall L. Ross II, The Representative Equality Principle: Disaggregating the Equal Protection Intent Standard, 81 Fordham L. Rev. 101 (2012).

Abstract:  Challenges under the Equal Protection Clause require proof of intentional discrimination. Though rarely questioned by legal scholars or the courts, that conventional account cannot explain the success of equal protection challenges to electoral structures that dilute the vote of racial minorities. In the Supreme Court’s most recent decisions on vote dilution, the Court has invalidated local electoral structures under the Equal Protection Clause to the extent that they deprive African Americans of the opportunity for effective representation in the political process. The Court has reached its decisions despite the absence of any proof of intentional discrimination in the adoption of the electoral structures.

In the vote dilution cases, the Supreme Court is best understood as having applied a critical alternative principle underlying the Equal Protection Clause: the representative equality principle. Using this principle, which originated in the reapportionment cases of the 1960s, the Court has invalidated structures that undermine two preconditions of representative government: majority rule and effective representation of minorities in the political process. It has done so even in the absence of evidence of intentional discrimination.

The idea that courts should use judicial review to strengthen the political processes underlying democratic representation is well known. That form of judicial review is termed “representation-reinforcing judicial review.” In this Article, I argue that the vote dilution cases, along with the reapportionment cases, constitute a distinctive form of judicial review, one that is a necessary precursor to representation-reinforcing judicial review. This form should be understood as “representation-structuring judicial review.” By policing the basic structures of representative democracy, the Court protects majority rule and minorities’ effective representation in the political process. In the absence of these critical preconditions, there might well be little representation to “reinforce.”

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