Race and the right to vote after Rice V. Cayetano

Michigan Law Review

Volumn 99, Issue 3, 2000, Pages 491-531

  Katz, Ellen D ^a  

^a NONE

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EID: 0041693917     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290494     Document Type: Article

References (193)

1. 364 U.S. 339 (1960).
2. For more detailed descriptions of the events in Tuskegee, see generally MARGARET EDDS, FREE AT LAST: WHAT REALLY HAPPENED WHEN CIVIL RIGHTS CAME TO SOUTHERN POLITICS (1987); ROBERT J. NORRELL, REAPING THE WHIRLWIND: THE CIVIL RIGHTS MOVEMENT IN TUSKEGEE (1985); BERNARD TAPER, GOMILLION V. LIGHTFOOT: THE TUSKEGEE GERRYMANDER CASE (1962).
3. Gomillion, 364 U.S. at 340, 341.
4. Id. at 341.
5. See id. at 347-48.
6. 120 S. Ct. 1044 (2000); see also U.S. CONST. amend. XV, § 1 ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.").
7. The state laws at issue distinguish among Hawaiians, who include any descendant of a person living on the Hawaiian Islands in 1778; Native Hawaiians, who include any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778; and implicitly all other citizens of Hawaii. See, e.g., HAW. CONST., art. XII, § 5; Rice, 120 S. Ct. at 1047, 1055. In an effort to minimize confusion, this Article uses the terms "native," "aboriginal," and "indigenous" people to refer to those included within the OHA's electorate.
8. 120 S. Ct. at 1059.
9. Gomillion, 364 U.S. at 346.
10. Id. at 341. On the role of traditional and preexisting practices, see, e.g., Bush v. Vera, 517 U.S. 952 (1996) (discussing the importance of traditional districting principles); Romer v. Evans, 517 U.S. 620, 633, 647 (1996) (noting the "absence of precedent" for a state amendment invalidating local laws that barred discrimination against homosexuals); Gomillion, 364 U.S. at 341-42 (noting the contrast between old and new boundaries of Tuskegee); see also Pamela S. Karlan, Just Politics? Five Not So Easy Pieces of the 1995 Term, 34 HOUS. L. REV. 289 (1997).
11. Justice Stevens's dissent in Rice makes this point when he argues that Hawaii acted without invidious intent. See Rice, 120 S. Ct. at 1063 (Stevens, J., dissenting) ("[T]here is simply no invidious discrimination present in this effort to see that indigenous peoples are compensated for past wrongs, and to preserve a distinct and vibrant culture that is as much a part of the Nation's heritage as any."). The Court, moreover, was unmoved by the fact that a democratically accountable body implemented the voting restriction. See id.; see also Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969); Lucas v. Colorado Gen. Assembly, 377 U.S. 713 (1964); Ball v. James, 451 U.S. 355, 373 (1981) (Powell, J., concurring).
12. See, e.g., Miller v. Johnson, 515 U.S. 900 (1995); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); see also Holder v. Hall, 512 U.S. 874, 905-08 (1994) (Thomas, J., concurring); Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986).
13. See Croson, 488 U.S. at 469 (1989) (applying strict scrutiny to a Fourteenth Amendment challenge to a minority set-aside program). The Court has previously applied the Fourteenth Amendment's intent requirement to claims brought under the Fifteenth Amendment. See, e.g., Mobile v. Bolden, 446 U.S. 55, 66-68 (1980) (applying the framework from Washington v. Davis, 426 U.S. 229, 240 (1976); Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 272 (1979); Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265, 266 (1977)).
14. See infra notes 55, 92, 111 and accompanying text.
15. 120 S. Ct. at 1058-61.
16. See Brief for Respondent at 13-16, Rice (No. 98-818). These same arguments, Hawaii contended, meant that the electoral regime also comported with Fourteenth Amendment requirements. See id.
17. The Court could have rejected outright each factor's applicability to the OHA. As petitioner argued and the concurring justices found, see Rice, 120 S. Ct. at 1060-62 (Breyer, J., concurring); Brief for Petitioner at 11, Rice (No. 98-818), the Court could have distinguished native Hawaiians from Native American Indian tribes and thus have held the former not entitled to the benefits that flow from the latter's "unique" political status. See Morton v. Mancari, 417 U.S. 535, 547-48 (1974) (discussing the "unique" status of Indian tribes). So too, the Court might have held that the OHA's powers did not qualify the agency as a "special-purpose" district such that elections for it would not implicate a constitutionally protected right to vote. Finally, the Court could have held that the State had not defined the electorate based on property interests because of the absence of full alignment between members of the OHA's electorate and OHA trust beneficiaries. See Rice, 120 S. Ct. at 1060.
18. 120 S. Ct. at 1058-59; see also infra Part II.A.
19. See infra Part II.B.
20. 120 S. Ct. at 1060; see also infra Part II.C.
21. See infra Part III.A.
22. 509 U.S. 630 (1993).
23. See infra Part III.B.
24. Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437, § 2 (codified as amended at 42 U.S.C. § 1973 (1994)).
25. See infra Part III.B.
26. For nearly a century prior to the overthrow, U.S. commercial interests had gained increasing influence over the Hawaiian economy and political affairs. When, in the early 1890s, Queen Liliuokalani began to reassert Native Hawaiian control over governmental operations, these U.S. interests orchestrated her overthrow, with the aid of the U.S. minister to Hawaii, who provided military support. President Cleveland refused to recognize the resulting provisional government, but five years later, President McKinley signed the congressional joint resolution annexing the islands. See Message of the President to the Senate and House of Representatives, reprinted in H.R. REP. NO. 53-243, at 19-31 (1893). For a more detailed description of these events, see Pub. L. No. 103-150, 107 Stat. 1510 (1993); President's Annual Message, reprinted in S. Doc. No. 55-16, at 3-13 (1898); LAWRENCE H. FUCHS, HAWAII PONO: A SOCIAL HISTORY (1961); 3 RALPH S. KUYKENDALL, THE HAWAIIAN KINGDOM 582-650 (1967); RUTH TABRAH, HAWAII, A HISTORY (1984). See also MICHAEL H. HUNT, IDEOLOGY & U.S. FOREIGN POLICY 80-91 (1987). For an assessment of the absence of discussion on the constitutional issues raised by U.S. expansion, see Sanford Levinson, Why the Canon Should be Expanded to Include the Insular Cases and the Saga of American Expansionism, 17 CONST. COMMENT. 241 (2000).
27. Act of July 7, 1898, 30 Stat. 750 (codified at 48 U.S.C. § 661 and repealed in 1959 upon Hawaii's admission to the Union); Hawaiian Organic Act, ch. 339, § 91, 31 Stat. 141, 159 (1900).
28. Hawaiian Organic Act, ch. 339, § 91, 31 Stat. 141, 159 (1900).
29. Hawaiian Homes Commission Act, 1920, ch. 42, 42 Stat. 108. See also H.R. REP. NO. 66-839, at 4 (1920) (noting that Hawaiian people have been "frozen out of their lands and driven into the cities," and that "Hawaiian people are dying").
30. HHCA, § 201(a)(7), 42 Stat. 108 (1921).
31. Hawaii Admission Act, Pub. L. No. 86-3, 73 Stat. 4, §§ 4, 5(f) (1959).
32. HAW. REV. STAT. § 10-1(a) (1993).
33. COMMITTEE OF THE WHOLE REP. NO. 13 (1978), reprinted in 1 PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF HAWAII OF 1978, at 1018 (1980).
34. Id.
35. HAW. REV. STAT. § 10-13.5 (1993). A separate agency administers the 200,000 acres set aside by the HHCA. See id. § 26-17.
36. See HAW. CONST, art. XII, § 6.
37. See id. § 5.
38. Id.; see also HAW. REV. STAT. § 13D-3(b) (1993) ("No person shall be eligible to register as a voter for the election of board members unless the person meets the following qualifications: (1) The person is Hawaiian."). Rice did not address the constitutional validity of the restriction requiring that OHA trustees be "Hawaiians," and thus that question remains open. The Fifteenth Amendment, as originally proposed, provided that "[t]he right of citizens of the United States to vote and hold office shall not be denied or abridged by the United States, or any State, on account of race . . . ." CONG. GLOBE, 40th Cong., 3d Sess. 379 (1869); see also WILLIAM GILLETTE, THE RIGHT TO VOTE 55 (1969); XI WANG, THE TRIAL OF DEMOCRACY: BLACK SUFFRAGE AND NORTHERN REPUBLICANS, 1860-1910, at 43-44 (1997). While the deletion of the officeholding phrase might suggest that the Fifteenth Amendment does not prohibit race-based officeholding requirements, such requirements may still contravene the expressive and constitutive benefits that the Court in Rice suggests underlie the Amendment, see infra Part III, and may, moreover, independently fail to survive scrutiny under the Fourteenth Amendment.
39. HAW. REV. STAT. § 10-2 (1993). The definition of Hawaiian thus includes "Native Hawaiian" and accords with the more contemporary federal government policy to extend benefits to all Hawaiians regardless of blood quantum.
40. STANDING COMM. REP. NO. 59 (1978), reprinted in 1 PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF HAWAII OF 1978, at 644 (1980).
41. Id. at 645.
42. COMMITTEE OF THE WHOLE REP. NO. 13 (1978), reprinted in 1 PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF HAWAII OF 1978, at 1018 (1980).
43. See Rice v. Cayetano, 963 F. Supp. 1547, 1548 (D. Haw. 1997). Rice also challenged his exclusion from voting in a special election relating to native Hawaiian sovereignty held in August of 1996. The district court rejected that challenge. See Rice v. Cayetano, 941 F. Supp. 1529 (D. Haw. 1996).
44. See Brief for Respondent at 16-50, Rice v. Cayetano, 120 S. Ct. 1044 (2000) (No. 98-818).
45. The district court held that Hawaii did not base the OHA's electoral restriction on race and rested it instead on the "unique" guardian-ward relationship that exists between Hawaii's indigenous people and the State of Hawaii. The court further found that the right to vote was not implicated because the OHA's limited power rendered it akin to a special-purpose district. Applying the deferential review accorded to such districts, the district court held that the voting restriction rationally related to a legitimate governmental purpose, finding that it furthered the State's obligation under federal law to act for the betterment of its native peoples. See Rice, 963 F. Supp. at 1554. Unlike the district court, the Court of Appeals for the Ninth Circuit agreed with Rice that the voting restriction constituted a facial race-based classification, but it nevertheless affirmed the district court's judgment. See Rice v. Cayetano, 146 F.3d 1075, 1081 (9th Cir. 1998). Noting that Rice challenged the voting restriction, and not the OHA's underlying administrative structure, the court held that limiting the vote to those for whose benefit the OHA-administered its trusts "does not deny non-Hawaiians the right to vote in any meaningful sense." Id. Mr. Rice, the court concluded, simply had no interest in the outcome of the OHA elections and consequently had not been denied the right to vote as protected by the Fifteenth Amendment. The appellate court further held that the voting restriction passed muster under the Fourteenth Amendment, even under the strictest scrutiny, in light of the special trust relationship that existed between Hawaii and the descendants of the islands' aboriginal peoples. See id. at 1082 (citing STANDING COMM. REP. NO. 59 (1978), reprinted in 1 PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF HAWAII OF 1978, at 64 (1980)).
46. To be sure, the Court expressed considerable skepticism about the validity of each point, but ultimately accepted each for purposes of its analysis. See infra notes 55, 92, 111 and accompanying text.
47. 417 U.S. 535 (1974).
48. Rice, 120 S. Ct. at 1058 (alteration in original).
49. Mancari, 417 U.S. at 553 n.24.
50. Id. at 554.
51. Id. at 555.
52. See Brief for Respondent at 20-38, Rice (No. 98-818). Hawaii's argument rests on the notion that the state's aboriginal peoples resemble Indian tribes in certain respects: they share a similar history of displacement and discrimination. Numerous federal statutes include Native Hawaiians in statutes designed for the benefit of Indians, see, e.g., 15 U.S.C. § 637(a) (1994); National Historic Preservation Act, 16 U.S.C. §§ 470-470(x) (1994); National Museum of the American Indian Act, 20 U.S.C. §§ 80q(1)-(15) (1994); 20 U.S.C. § 1106(b) (1994); Native American Graves Protection and Repatriation Act, 25 U.S.C. §§ 3001-3013 (1994); Native American Languages Act, 25 U.S.C. §§ 2901-2906x; 38 U.S.C. §§ 3761-3764 (1994); 42 U.S.C. §§ 11701(2) & (19) (1994) (extending to Native Hawaiians "the same rights and privileges accorded to American Indian, Alaska Native, Eskimo, and Aleut communities"); Native American Programs Act of 1974, 42 U.S.C. §§ 2991-92 (1994); American Indian Religious Freedom Act of 1978, 42 U.S.C. § 1996 (1994); Indian Health Care Amendments of 1988, Pub. L. No. 100-713, 102 Stat. 4784, and other statutes that benefit Native Hawaiians invoke an analogy between them and Indian tribes, relying on the federal government's trust relationship toward aboriginal peoples as a justification. For example, when enacting the HHCA, Congress cited previous enactments granting Indians special privileges in using public lands. See H.R. REP. NO. 66-839, at 11 (1920). The Secretary of the Interior supported the legislation describing Native Hawaiians as "our wards . . . for whom in a sense we are trustees." Id. at 4. In Rice, the lower federal courts both found the proffered analogy between Hawaii's native peoples and Indians probative, although not entirely convincing. The district court concluded that the Native Hawaiians enjoyed a "unique status" derived from trust obligations owed by Congress and Hawaii toward them, and that the OHA's voting restriction was not race-based. See Rice v. Cayetano, 963 F. Supp. 1547, 1551-55 (D. Haw. 1997). The appellate court, which viewed the restriction as race-based, found the comparison between Native Hawaiians and Indian tribes sufficiently powerful to provide the requisite compelling interest needed to save the restriction under the application of strict scrutiny. See Rice v. Cayetano, 146 F. 3d 1075, 1082 (9th Cir. 1998).
53. Rice, 120 S. Ct. at 1057-59.
54. Justice Breyer argued that even if Native Hawaiians resembled an Indian tribe, the OHA electorate and its programs extend to Hawaiians more generally, a group that includes individuals who may be less than one five-hundredth aboriginal Hawaiian. This, he argued, creates a "vast and unknowable body of potential members . . . [that] goes well beyond any reasonable limit." Id. at 1062 (Breyer, J., concurring). Acknowledging that tribes have considerable discretion to define their membership, he emphasized that the OHA's classification was drawn by the State, not a federally recognized tribe. See id. But see id. at 1066 n.11 (Stevens, J., dissenting).
55. Id. at 1058.
56. Id.
57. Id. at 1059.
58. Id. at 1061.
59. Id. at 1059.
60. See, e.g., Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969) (applying strict scrutiny to a classification affecting the fundamental right to vote); see also City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970); Cipriano v. City of Houma, 395 U.S. 701 (1969); Harper v. Virginia Bd. of Elections, 383 U.S. 663, 667 (1966); Richard H. Pildes, Diffusion of Political Power and the Voting Rights Act, 24 HARV. J. L. & PUB. POL'Y 119 (2000).
61. Rice, 120 S. Ct. at 1055.
62. Id.
63. Id. at 1056.
64. Id. at 1057. The concurring justices agreed. See id. at 1062 (Breyer, J., concurring) (describing OHA electoral restriction as "a race-based voting definition"). But see id. at 1068-69 (Stevens, J., dissenting) ("The ability to trace one's ancestry to a particular progenitor at a single distant point in time may convey no information about one's own apparent or acknowledged race today. Neither does it of necessity imply one's own identification with a particular race, or the exclusion of any others 'on account of race.'").
65. Id. at 1057.
66. See, e.g., KWAME ANTHONY APPIAH, IN MY FATHER'S HOUSE 43-73 (1992); F. JAMES DAVIS, WHO IS BLACK? 1-16 (1991); JOE R. FEAGIN & CLAIRECE BOOHER FEAGEN, RACIAL AND ETHNIC RELATIONS 6-9 (5th ed. 1996); MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES (2d ed. 1994); see also Ariela J. Gross, Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South, 108 YALE L.J. 109 (1998).
67. In this sense, Rice comports with the view that law shapes the process of racial construction. See generally Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 STAN. L. REV. 1 (1991); Ian F. Haney-López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994); Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707 (1993); Christine B. Hickman, The Devil and the One Drop Rule: Racial Categories, African Americans, and the U.S. Census, 95 MICH. L. REV. 1161 (1997); Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. REV. 263 (1995).
68. See OMI & WINANT, supra note 66, at 54 ("Race is a concept which signifies and symbolizes social conflicts and interests by referring to different types of human bodies."); Sally Haslanger, Gender and Race: (What) Are They? (What) Do We Want Them To Be?, 34 NOUS 31, 44 (2000) (noting that a race is a group "demarcated by the geographical associations accompanying perceived body type, when those associations take on evaluative significance concerning how members of the group should be viewed and treated . . . [Race] is not an absolute fact, but will depend on context"); see also DON HERZOG, POISONING THE MINDS OF THE LOWER ORDERS 283-99 (1998) (discussing different conceptions of race); JACQUELINE STEVENS, REPRODUCING THE STATE (1999); Christopher A. Ford, Administering Identity: The Determination of "Race" in Race-Conscious Law, 82 CAL. L. REV. 1231 (1994); Haney-López, supra note 67, at 1-5.
69. Cf. Gross, supra note 66, at 112-13, 163-64 (noting how litigants in the antebellum South could prove "whiteness" by reporting having engaged in acts of citizenship such as voting).
70. See, e.g., Ball v. James, 451 U.S. 355 (1981); Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719 (1973); see also Associated Enter. v. Toltec Watershed Improvement Dist., 410 U.S. 743 (1973); Hadley v. Junior Coll. Dist., 397 U.S. 50, 56 (1970) (noting "that there might be some case in which a State elects certain functionaries whose duties are so far removed from normal governmental activities and so disproportionately affect different groups that a popular election in compliance with Reynolds [v. Sims] might not be required"); Avery v. Midland County, 390 U.S. 474, 483-84 (1968). For academic critiques of the Court's approach to special-purpose districts, see SAMUEL ISSACHAROFF ET AL., THE LAW OF DEMOCRACY 66-67 (1998); Richard Briffault, Who Rules at Home?: One Person/One Vote and Local Governments, 60 U. CHI. L. REV. 339 (1993); William A. Garton, One Person, One Vote in Special District Elections: Two Ideas and an Illustration, 20 S.D. L. REV. 245 (1975); David L. Martin, "One Person, One Vote" and California's Water Districts, 8 NATURAL RESOURCES LAWYER 9 (1973); Frank Michelman, Conceptions of Democracy in American Constitutional Argument: Voting Rights, 41 FLA. L. REV. 443, 465-69 (1989); William H. Riker, Democracy and Representation: A Reconciliation of Ball v. James and Reynolds v. Sims, 1 SUP. CT. ECON. REV. 39 (1982); Glenn P. Smith, Interest Exceptions to One-Resident, One-Vote: Better Results from the Voting Rights Act?, 14 TEXAS L. REV. 1153 (1996).
71. 410 U.S. 719 (1973).
72. Salyer, 410 U.S. at 728.
73. Id. at 729.
74. Id. at 731.
75. 451 U.S. 355 (1981).
76. Ball, 451 U.S. at 365 (noting that the Salt River District includes half the population of the State, has statutory power to generate and sell electric power, and delivers water for both agricultural and nonagricultural purposes).
77. Id. at 366 (emphasizing that the district "cannot impose ad valorem property taxes or sales taxes[,] . . . cannot enact laws governing the conduct of citizens, nor . . . administer such normal functions of government as the maintenance of streets, the operation of schools, or sanitation, health, or welfare services").
78. Id. at 370.
79. Id. at 371.
80. See Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719, 737-38 (1973) (Douglas, J., dissenting); see also Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 342 F. Supp. 144, 150 (E.D. Cal. 1972) (Browning, J., concurring in part and dissenting in part) (noting interest of lessees in water district policies); LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1668 (2d ed. 1988); Briffault, supra note 70, at 361-62, 370; Melvyn R. Durchslag, Salyer, Ball, and Holt: Reappraising the Right to Vote in Terms of Political "Interest" and Vote Dilution, 33 CASE W. RES. L. Rev. 1, 19 (1982); James A. Gardner, Liberty, Community, and the Constitutional Structure of Political Influence: A Reconsideration of the Right to Vote, 145 U. PA. L. REV. 893, 916 (1997).
81. Ball, 451 U.S. at 384 (White, J., dissenting); Briffault, supra note 70, at 367-68; see also JOEL GARREAU, EDGE CITY: LIFE ON THE NEW FRONTIER 183-208 (1991).
82. 395 U.S. 701 (1969).
83. Id. at 705; cf. Phoenix v. Kolodziejski, 399 U.S. 204 (1970); ISSACHAROFF, supra note 70, at 67.
84. 395 U.S. 621 (1969).
85. Id. at 632; see also ISSACHAROFF, supra note 70, at 66-67.
86. See Rice v. Cayetano, 146 F.3d 1075, 1080 (9th Cir. 1998) (equating OHA elections to the elections for the special-purpose districts at issue in Salyer and Ball).
87. See 1998 OHA FISCAL ANN. REP. 38, available at http://planet-hawaii.com/oha.
88. Ball v. James, 451 U.S. 355, 368 (1981).
89. Cf. Cipriano, 395 U.S. at 705.
90. Rice v. Cayetano, 963 F. Supp. 1547, 1558 (D. Haw. 1997) (finding that the OHA court was "constrained by its overall purpose to work for the betterment of Hawaiians," and exercised sufficiently limited powers to qualify as a special-purpose district, such that the challenged electoral restriction need only be rationally related to a legitimate governmental purpose).
91. Rice, 146 F.3d at 1081 (noting that the election for OHA trustees was not "a general election for government officials performing government functions of the sort that has previously triggered Fifteenth Amendment analysis").
92. Rice v. Cayetano, 120 S. Ct. 1044, 1059 (2000).
93. Id. at 1060.
94. For criticisms of the special-purpose district doctrine, see Briffault, supra note 70, at 370-84 (describing the criteria for defining special-purpose districts as analytically unsound); Michelman, supra note 70, at 465-69; Riker, supra note 70, at 39; Smith, supra note 70, at 1160.
95. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 241 (1995) (Thomas, J., concurring) ("[G]overnment-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice."); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) ("Unless they are strictly reserved for remedial settings, [racial classifications] may in fact promote notions of racial inferiority and lead to a politics of racial hostility."). Salyer, Ball, and Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978), did not involve allegations of intentional racial discrimination and thus to the extent the voting restrictions at issue had a racially disparate impact, they would not trigger strict scrutiny under the Constitution. See Washington v. Davis, 426 U.S. 229 (1976).
96. Cf. Rice, 146 F.3d at 1081 ("[T]he voter qualification at issue here - albeit clearly racial on its face - does not . . . deny non-Hawaiians the right to vote in any meaningful sense."); see also Quinn v. Millsap, 491 U.S. 95, 106 (1989) (rejecting a broad interpretation of Salyer because it "would render the Equal Protection Clause inapplicable even to a requirement that all members of the [limited government] board be white males").
97. See, e.g., Santosky v. Kramer, 455 U.S. 746 (1982); Carey v. Population Servs. Int'l, 431 U.S. 678 (1977); Kramer v. Union Free Sch. Dist., 395 U.S. 621 (1969); Shapiro v. Thompson, 394 U.S. 618 (1969); see also United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
98. See Rice, 146 F.3d at 1081 (arguing that the OHA electoral restriction "does not deny non-Hawaiians the right to vote in any meaningful sense"); see also id. at 1082 (emphasizing the special trust relationship between Hawaii and its indigenous people, and finding that the voting restriction "ultimately responds to the state's compelling responsibility to honor the trust, and . . . is precisely tailored to the perceived value that a board 'chosen from among those who are interested parties would be the best way to insure proper management and adherence to the needed fiduciary principles' ").
99. Rice v. Cayetano, 120 S. Ct. 1044, 1030 (2000).
100. See generally Stuart Minor Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 YALE L.J. 537 (1996); Philip P. Frickey, Adjudication and its Discontents: Coherence and Conciliation in Federal Indian Law, 110 HARV. L. REV. 1754, 1756-67 (1997); Jon M. Van Dyke, The Political Status of the Native Hawaiian People, 17 YALE L. & POL'Y REV. 95 (1998).
101. Rice, 120 S. Ct. at 1059.
102. Such complexity is not novel. Compare Shaw v. Hunt, 517 U.S. 899, 915 (1996) (assuming that compliance with section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (1994), is a compelling state interest); Bush v. Vera, 517 U.S. 952, 977 (1996) (same); Miller v. Johnson, 515 U.S. 900, 920-21 (1995) (same), with Bush, 517 U.S. at 992 (O'Connor, J., concurring) (noting that section 2 should be assumed to be constitutional "unless and until current lower court precedent is reversed and it is held unconstitutional"); Chisom v. Roemer, 501 U.S. 380, 418 (1991) (Kennedy, J., dissenting) (questioning the constitutionality of section 2). Of course, the morass that is the Voting Rights Act in the wake of the Shaw decisions may well have given the Court pause in pursuing a similar analytical path in Rice. See Richard H. Pildes, Principled Limitations on Racial and Partisan Redistricting, 106 YALE L.J. 2505 (1997).
103. As noted above, insofar as Hawaii's native people are fairly characterized as Indians, the Court would regard them as a political, as opposed to racial, group and accordingly would evaluate the OHA's electoral regime under rational basis review. See supra Part II.A.
104. See Rice, 120 S. Ct. at 1058 ("It does not follow from Mancari, however, that Congress may authorize a State to establish a voting scheme that limits the electorate for its public officials to a class of tribal Indians, to the exclusion of all non-Indian citizens."); id. at 1061 (asserting that all citizens have an interest in OHA affairs).
105. At oral argument, petitioner's counsel argued in favor of reliance on what he viewed as the greater simplicity of a decision based on the Fifteenth rather than the Fourteenth Amendment. In so arguing, however, he was referring to the Fourteenth Amendment's one person, one vote principle, and not its application to race-based classifications. While insisting that the restriction violated the one person, one vote principle, counsel stated, "I think it is much easier to say that [the voting restriction] denies the right to vote on account of race. This a racial determination, and the right to vote is being denied here." Argument for Petitioner at 4, United States Supreme Court Official Transcript, Rice (No. 98-818).
106. Brief for Respondent at 18, Rice (No. 98-818).
107. STANDING COMM. REP. NO. 59 (1978), reprinted in 1 PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF HAWAII OF 1978, at 644 (1980).
108. Id. 109. Id. at 645.
109. Brief for Respondent at 18, Rice (No. 98-818).
110. Rice v. Cayetano, 120 S. Ct. 1044, 1060 (2000).
111. Id.
112. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 666 (1966) (invalidating state poll tax under Fourteenth Amendment because a State violates the Equal Protection Clause "whenever it makes affluence of a voter . . . an electoral standard"). From the colonial period through much of the nineteenth century, property ownership, race and sex were the defining characteristics of the electorate in most jurisdictions in the United States. See, e.g., CHILTON WILLIAMSON, AMERICAN SUFFRAGE: FROM PROPERTY TO DEMOCRACY, 1760-1860 (1960); Robert J. Steinfeld, Property and Suffrage in the Early American Republic, 41 STAN. L. REV. 335 (1989). Ownership of land or other significant assets was deemed a prerequisite to voting because it was thought to ensure the independent thought and free will of the franchise holder. See GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 269 (1991); Frank I. Michelman, Possession vs. Distribution in the Constitutional Idea of Property, 72 IOWA L. REV. 1319, 1328-29 (1987); Steinfeld, supra.
113. See supra notes 74-79 and accompanying text.
114. See, e.g., Mount Healthy Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). Had the Court in Rice grounded its analysis under the Fourteenth Amendment, it might well have deemed the difficult line-drawing process required in mixed-motive cases unnecessary given the apparent identity and causal connection between the race and property-based classifications. See also infra Part III.B.
115. See, e.g., C.B. MACPHERSON, THE LIFE AND TIMES OF LIBERAL DEMOCRACY 23-43 (1977); Michelman, supra note 70, at 451.
116. See KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION 93 (1989) ("Voting . . . is an assertion of belonging to a political community."); JUDITH N. SHKLAR, AMERICAN CITIZENSHIP: THE QUEST FOR INCLUSION 26 (1991); QUIET REVOLUTION IN THE SOUTH: THE IMPACT OF THE VOTING RIGHTS ACT 1965-1990, at 15-16 (Chandler Davidson & Bernard Grofman eds., 1994) (noting that the right to vote "confer[s] full citizenship on the members of the group"); Gardner, supra note 80, at 906 ("To seek the vote is to seek formal recognition as a full member of society; to be denied the vote is to be either excluded altogether from membership in the community or consigned to some kind of second-class citizenship."); Pamela S. Karlan, Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Litigation, 24 HARV. C.R.-C.L. L. REV. 173, 237 (1989) (discussing the symbolic value of civic inclusion); Pamela S. Karlan, Undoing the Right Thing: Single-Member Offices and the Voting Rights Act, 77 VA. L. REV. 1, 5 (1991) (noting that voting "announces that the voter is a full member of the political community"); see also HERZOG, supra note 68, at 29-33 (discussing gradations of citizenship). For a discussion of the expressive benefit derived from the post-Civil War enfranchisement of African-American men and the expressive harm generated by post-Reconstruction disenfranchisement, see LEON F. LITWACK, BEEN IN THE STORM SO LONG: THE AFTERMATH OF SLAVERY 531-556 (1979), and GLENDA ELIZABETH GILMORE, GENDER AND JIM CROW 123-24 (1996). For a discussion regarding the expressive benefits associated with the Nineteenth Amendment, see Reva B. Siegal, Collective Memory and the Nineteenth Amendment: Reasoning About "the Woman Question" in the Discourse of Sex Discrimination, in HISTORY, MEMORY, AND THE LAW (Austin, Sarat & Thomas R. Kearns eds., 1999).
117. See Gardner, supra note 80, at 906; see also Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503 (2000) (discussing expressive harms); Richard H. Pildes & Richard G. Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483 (1993) (same).
118. While closely related, voting's expressive and constitutive values offer distinct benefits. But see Adam Winkler, Note, Expressive Voting, 68 N.Y.U. L. REV. 330, 364 (1993) (arguing that voting's constitutive value is a component of its expressive value). The expressive value rests on the message the electoral system is understood to disseminate, and accordingly represents something bestowed on the political community. Cf. SHKLAR, supra note 115, at 3 (voting is not "an aspiration to civic participation as a deeply involving activity"); Gardner, supra note 80, at 905-06 ("Voting, then, is something to be had rather than something to be done."). The constitutive benefit, by contrast, is something voters acquire for themselves through active engagement in the political process. The jurisdiction inevitably shapes the constitutive process through the electoral rules and structures adopted, but ultimately it is the voters who do the work required in order to derive constitutive benefits. The constitutive benefit thus may be seen to be more tangible than the expressive value that inheres in the vote. Temporally, the relationship between voting's expressive and constitutive benefits is not fixed. An electoral system may give rise to an expressive benefit from which the constitutive benefit follows, or alternatively may create a constitutive process from which the expressive value derivatively follows. The latter relationship best explains the puzzling doctrinal route taken by the Court in Rice. See infra Part III.B.
119. Michelman, supra note 70, at 451.
120. See HANNAH ARENDT, BETWEEN PAST AND FUTURE 143-96 (1968); HANNAH ARENDT, ON REVOLUTION 251-81 (1963); John Stuart Mill, Considerations on Representative Government, in ON LIBERTY AND OTHER ESSAYS, 205, 303-24 (Gray, ed., Oxford University Press, 1991); Miriam Galston, Taking Aristotle Seriously: Republican-Oriented Legal Theory and the Moral Foundation of Deliberative Democracy, 82 CAL. L. REV. 329 (1994); see also MACPHERSON, supra note 116, at 47-48, 50-52.
121. See, e.g., ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 520-24 (J.P. Mayer ed., 1969); BENJAMIN R. BARBER, STRONG DEMOCRACY 133 (1984) ("[S]trong democratic theory understands the creation of community as one of the chief tasks of political activity in the participatory mode."); Kathryn Abrams, "Raising Politics Up": Minority Political Participation and Section 2 of the Voting Rights Act, 63 N.Y.U. L. REV. 449, 477 (1988) ("By acting together in the political sphere, a group of apparently disparate individuals may come to appreciate the strength of their common interests, and those already so connected may recognize the power that comes from concerted effort." (footnotes omitted)).
122. See MACPHERSON, supra note 116, at 60 (noting that "developmental democracy" seeks "not to impose a utopia on the people but to have the people reach the goal themselves, improving themselves by participating actively in the political process, every instalment [sic] of participation leading to an improvement in their political capacity, as well as their all-round development, and making them capable of more participation and more self-development").
123. See, e.g., Michelman, supra note 70, at 447-48 (arguing that participation contributes to a deliberative process, through which competing arguments are developed and reasonable answers to questions of public ordering are produced); see also CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION (1993); David M. Estlund, Who's Afraid of Deliberative Democracy? On the Strategic/Deliberative Dichotomy in Recent Constitutional Jurisprudence, 71 TEXAS L. REV. 1437 (1993); Galston, supra note 121, at 345-50; Amy Gutmann, The Disharmony of Democracy, in DEMOCRATIC COMMUNITY: NOMOS XXXV, at 126 (John W. Chapman & Ian Shapiro eds., 1993); Frank I. Michelman, Traces of Self-Government, 100 HARV. L. REV. 4 (1986).
124. See Galston, supra note 121, at 350; Gutmann, supra note 124, at 141; see also ARENDT, ON REVOLUTION, supra note 121, at 234-47.
125. See Rice v. Cayetano, 120 S. Ct. 1044, 1054 (2000) (noting that the Fifteenth Amendment was meant to guarantee former slaves the vote "lest they be denied the civil and political capacity to protect their new freedom"); id. at 1057 ("The ancestral inquiry mandated by the State is forbidden by the Fifteenth Amendment for the further reason that the use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve.").
126. Id. at 1057. Justice Kennedy is, of course, overstating the point. While he identifies within the Constitution the broad notion of equality based on an obligation to engage in personal identification, cf. Bernard A.O. Williams, The Idea of Equality, in JUSTICE AND EQUALITY 127 (Hugo A. Bedau ed., 1971) (discussing the duty of individual identification), the Court has long recognized that jurisdictions may define their electorates and otherwise classify individuals according to a variety of criteria that wholly ignore an individual's "own merit and essential qualities," and his or her "unique personality." See, e.g., Dunn v. Blumstein, 405 U.S. 330 (1972) (residency duration); Carrington v. Rash, 380 U.S. 89 (1965) (residency requirement). More precisely, then, Justice Kennedy is identifying race as a prohibited basis upon which to define the political community. This comports with the Court's approach in prior cases suggesting that the Constitution constrains the criteria upon which a jurisdiction may define the political community without imposing its own affirmative vision of that community. See, e.g., Carrington, 380 U.S. at 92; Gray v. Sanders, 372 U.S. 368, 380 (1963) ("[T]here is no indication in the Constitution that . . . occupation affords a permissible basis for distinguishing between qualified voters within the State.").
127. See Bush v. Vera, 517 U.S. 952 (1996); Miller v. Johnson, 515 U.S. 900 (1995); Shaw v. Reno, 509 U.S. 630 (1993); see also Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. PA. L. REV. 1363 (2000); Anderson & Pildes, supra note 118, at 1503; Pildes & Niemi, supra note 118.
128. Expressive harms are not limited to cases involving race-based classifications; indeed, they have been prominent in Establishment Clause jurisprudence. See, e.g., Anderson & Pildes, supra note 118, at 1545-51.
129. Rice, 120 S. Ct. at 1054.
130. Id. at 1060; see also Pildes, supra note 60, at 121 (describing the perspective that the self-conscious use of race-based districting "expresses a view of political identity inconsistent with democratic ideals"). While not confronted with the question, the Court's language suggests that, in addition to Mr. Rice, those included within the OHA's electorate could also have challenged the voting restriction under the Fifteenth Amendment given the nature of the expressive harm identified. This is not to say that an expressive harm causes a tangible individuated injury akin to those traditionally recognized at common law, but rather that the harm caused by the government's impermissible message regarding its conception of community causes a harm not confined to members of one race. See Richard H. Pildes, Why Rights Are Not Trumps: Social Meaning, Expressive Harms, and Constitutionalism, 27 J. LEGAL STUD. 725, 756-60 (1998); Note, Expressive Harms and Standing, 112 HARV. L. REV. 1313, 1328 (1999) (suggesting that excessive reliance on race in redistricting "belittles members of both races; rather than sending a message of inferiority to one group, it presents an unacceptable vision of society").
131. See supra Part II.
132. For a discussion, see supra note 40 and accompanying text.
133. COMMITTEE OF THE WHOLE REP. NO. 13 (1978), reprinted in 1 PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF HAWAII OF 1978, at 1018 (1980).
134. Id.
135. Cf. MACPHERSON, supra note 116, at 60; Pildes, supra note 60, at 121-22. For a discussion of how state programs and political parties affect individual and class organization and identification, see PRADEEP K. CHHIBBER, DEMOCRACY WITHOUT ASSOCIATIONS (1999).
136. See supra Part II.A. Rice, of course, carefully avoided resolving the question of the constitutionality of the OHA itself. Rice v. Cayetano, 120 S. Ct. 1044, 1059 (2000) (noting that the question was not before the Court). The assumptions the Court was willing to accept for purposes of this dispute, namely its acceptance of the Indian analogy, in no way binds the Court to that analogy should Mr. Rice or another litigant now challenge the OHA itself.
137. See supra note 68.
138. See supra note 67 and accompanying text.
139. COMMITTEE OF THE WHOLE REP. NO. 13 (1978), reprinted in 1 PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF HAWAII OF 1978, at 1018 (1980).
140. The holding in Rice, however, did not turn on Hawaii's specific goal in creating the OHA's electoral regime. The outcome would no doubt have been the same had the State acted with the admittedly implausible purpose of fostering cleavages among native Hawaiians. Under this hypothetical, the State posits that native Hawaiians would act as a bloc in a diverse electorate, but disagree among themselves in an exclusive one. The State argues that it created the OHA's electoral regime precisely to foster such division in the hope that it would diminish the role race (or what the Court perceives to be race) plays in defining political identity. Regardless, however, of whether the Rice Court would applaud the goal of reducing race-based political identifications (and leaving aside the question whether the State's imagined argument represents a plausible mechanism for doing so), the Rice Court certainly would repudiate the method selected, namely the use of what it deems to be an express race-based classification to define an electorate. Yet, this deep and seeming categorical mistrust of race-based decisionmaking of any kind, see supra note 12, ignores and indeed exacerbates the numerous more subtle ways facially race-neutral state policy may shape racially-informed political identities and distort the constitutive values inhering in the vote. See infra text accompanying note 180.
141. See supra note 127 and accompanying text.
142. For a discussion of the way in which American law has implicitly recognized that one may acquire a racial identity through the exercise of the vote and through other acts of citizenship such as jury service, see Gross, supra note 66, at 112-13, 163-64.
143. The employment program in Mancari purported to advance constitutive goals in terms of encouraging self-governance among the beneficiaries. See Morton v. Mancari, 417 U.S. 535 (1974). Rice, however, suggests that political participation through voting is distinct in terms of its constitutive benefit, regardless of the intent of those framing benefit programs. See Rice v. Cayetano, 120 S. Ct. 1044, 1058 (2000) (noting that Mancari does not apply to "a voting scheme of this sort"); see also infra text accompanying note 180. This distinction between voting and employment may well be counterfactual. See Cynthia L. Estlund, Working Together: The Workplace, Civil Society, and the Law, 89 GEO. L.J. 1, 3-4 (2000).
144. Notwithstanding, Rice cannot fairly be read to provide support for affirmative action in employment, education, and other benefit programs. To be sure, the Court's treatment of the Indian analogy suggests that Hawaii went wrong by employing a regime focused on the definitional level of the polity, and that a more circumscribed effort to distribute public benefits to its indigenous population might have survived. But see supra text accompanying notes 100-101 (noting the validity of OHA programs was not before the Court). That suggestion, however, most likely reflects the Court's inability to place Hawaii's native people neatly into the racial classifications that generally arise on the mainland. The Court's equation of Hawaii's reliance on ancestry with a racial classification and the expressive harm it perceives to follow, see supra note 127 and accompanying text, suggests little receptivity on the part of the Rice majority to programs designed to benefit groups the Court has historically considered to be racial.
145. See supra Part II.B.
146. Michelman, supra note 70, at 469 ("[T]he Salt River District and its ilk . . . might easily have been perceived as fora non conveniens for the realization of the self-constitutive values of citizenship . . . . Perhaps the majority Justices [in Ball] doubted . . . that the Salt River District, given its history and the accompanying understandings about its place in the lives of the people, defined or constituted [a political community]."); see also Briffault, supra note 70, at 363-64 ("[T]here was no community to speak of in the Tulare Lake Basin district . . . . [The sparse population established] not an absence of governmental power for the district's governing board but the lack of a community within the district appropriate for self-government."). It is, however, hardly self-evident that constitutive values cannot be derived from participation in water district elections, particularly given the critical importance of water in particular parts of the country. See GARREAU, supra note 81, at 193 (describing water in Arizona as "the linchpin of the universe" and emphasizing the influence of water districts in everyday life).
147. See Michelman, supra note 70, at 469.
148. As with the Indian analogy, here too the expressive harm follows derivatively. The racial classification transforms the special use election into one involving the constitutionally protected right to vote. This transformation means that the OHA regime now disseminates the message that race comprises a relevant criterion upon which to define the political community vote.
149. See supra notes 74-79 and accompanying text.
150. See supra note 148 and accompanying text.
151. See supra note 148 and accompanying text.
152. See supra note 115 and accompanying text.
153. See supra note 31 and accompanying text. In the Shaw cases, a similar connection between race and an ostensibly nonsuspect factor such as a shared socioeconomic status explains the judicial rejection of the latter as a basis to avoid strict scrutiny.
154. See supra note 12.
155. See Guinn v. United States, 238 U.S. 347 (1915); see also Lane v. Wilson, 307 U.S. 268 (1939). Admittedly, the correspondence and causal relationship between property and race in Rice parallels the correspondence and causal relationship between race and the "political" status of tribal members in Mancari. Both criteria capture the same people. Yet, the legitimate nonsuspect factor trumped the illegitimate factor in Mancari but failed to do so in Rice. Justice Kennedy wrote that "[i]t does not follow from Mancari . . . that Congress may authorize a State to establish a voting scheme that limits the electorate for its public officials to a class of tribal Indians, to the exclusion of all non-Indian citizens." Rice v. Cayetano, 120 S. Ct. 1044, 1058 (2000). Again, the constitutive understanding of the vote helps explain why. The special political status of Indian tribes suffices to neutralize the corresponding racial nature of the classification in Mancari because the award of employment preferences is not seen to involve an identity-forming process. Voting, however, is seen as precisely such a process. See supra notes 143-144 and accompanying text. The State's use of a racial classification in Rice transforms OHA elections into a constitutive process, and a constitutionally infirm one at that. The shared property interest also explaining the electoral restriction therefore cannot save the regime, because its design promotes an impressible conception of self and group identity.
156. See Pildes, supra note 102, at 2506-09.
157. A more attenuated causal connection may exist between race and other nonsuspect factors.
158. See, e.g., Bush v. Vera, 517 U.S. 952, 984 (1996); id. at 1053 (Souter, J., dissenting); see also Anderson & Pildes, supra note 118, at 1053.
159. The Shaw cases require the application of strict scrutiny when race predominates over other factors in the drawing of a district, see, e.g., Bush, 517 U.S. at 962; Miller v. Johnson, 515 U.S. 900, 915 (1995), while the narrow reading of Rice would bar districts where race is the only factor that defines the electorate. See supra text accompanying note 156. Insofar as race may predominate but still not constitute the sole factor in districting, some Shaw plaintiffs may not be able to bring a claim under Rice, assuming the narrow reading prevails. While the prospect of such cases offers one explanation for the concurring opinion in Rice, see infra text accompanying notes 169-173, the close correspondence that often exists between race and other districting factors suggests that such cases will rarely arise. So too, the peculiar standing rules that govern the Shaw cause of action may prevent some Rice claimants from raising Shaw claims. See United States v. Hayes, 515 U.S. 737 (1995); see also Samuel Issacharoff & Thomas C. Goldstein, Identifying the Harm in Racial Gerrymandering Claims, 1 MICH. J. RACE & L. 47 (1996); Samuel Issacharoff & Pamela S. Karlan, Standing & Misunderstanding in Voting Rights Law, 111 HARV. L. REV. 2276 (1998); Pamela S. Karlan, Still Hazy After All These Years, 26 CUMB. L. REV. 287 (1996).
160. So understood, Rice stands in some tension with dicta in the Court's nearly contemporaneous decision Reno v. Bossier Parish School Board, in which the Court insisted that it had "never held that vote dilution violates the Fifteenth Amendment . . . . [W]e have never even 'suggested' as much." 528 U.S. 320, 334 n.3 (2000). Insofar as racial vote dilution and Shaw-type racial gerrymandering are understood to interfere similarly with the constitutive process, both, after Rice, should violate the Fifteenth as well as Fourteenth Amendments. Bossier Parish's dicta to the contrary should not, however, mandate a different reading of Rice. It falls short of actually holding that the Fifteenth Amendment does not encompass vote dilution, claiming instead that the Court has not yet so held. See id.; cf. South Carolina v. Katzenbach, 383 U.S. 301, 335 (1966). Moreover, the Court's quick dismissal of Gomillion's Fifteenth Amendment holding as resting on the "denial of the right to vote in municipal elections" obscures the decision's broader import. As nonresidents, Tuskegee's former black voters ostensibly had no right to cast ballots in municipal elections. See Gomillion v. Lightfoot, 364 U.S. 339, 349 (1960) (Whittaker, J., concurring); infra text accompanying note 194. Gomillion nevertheless held that the State violated the Fifteenth Amendment because it manipulated political boundaries to diminish black voting strength, which, as Justice Souter notes in his dissent in Bossier Parish, would be called dilution in contemporary discourse. See Bossier Parish, 528 U.S at 360 n.11 (Souter, J., concurring in part and dissenting in part); see also Allen v. State Bd. of Elections, 393 U.S. 544, 569 (1969) ("The right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot."). Finally, the Bossier Parish Court fails to reconcile its suggestion regarding the Fifteenth Amendment and vote dilution with the Court's prior recognition that section 2 of the Voting Rights Act both mirrors the relevant language in the Fifteenth Amendment and proscribes racial vote dilution. See, e.g., Johnson v. DeGrandy, 512 U.S. 997 (1994); City of Mobile v. Bolden, 446 U.S. 55, 60-61 (1980) (plurality opinion); see also Bossier Parish, 528 U.S. at 360 n.11 (Souter, J., concurring in part and dissenting in part).
161. Rice, of course, does not resolve the extent to which a perceived reliance on race in decisionmaking causes a harm that transcends voting. The question turns on whether voting's intrinsic values and indeed instrumental purposes may be unique such that, regardless of the harm race-based decisionmaking is understood to cause elsewhere, it generates a distinct injury when voting is involved. Compare Estlund, supra note 144, at 3, with Pildes, supra note 60, at 122.
162. City of Boerne v. Flores, 521 U.S. 507 (1997), raises the distinct question whether section 2 of the Voting Rights Act, as amended in 1982, goes beyond Congress's powers under Section 5 of the Fourteenth Amendment. See David Cole, The Value of Seeing Things Differently: Boerne v. Flores and Congressional Enforcement of the Bill of Rights, 1997 SUP. CT. REV. 31, 45; Pamela S. Karlan, Two Section Twos and Two Section Fives: Voting Rights and Remedies After Flores, 39 WM. & MARY L. REV. 725, 725-28 (1998); Douglas Laycock, Conceptual Gulfs in City of Boerne v. Flores, 39 WM. & MARY L. REV. 743, 749-50 (1998).
163. Prior to 1982, section 2 tracked the language of the Fifteenth Amendment itself. See Chisom v. Roemer, 501 U.S. 380, 392 (1991) (noting that section 2, as originally enacted, "was unquestionably coextensive with the coverage provided by the Fifteenth Amendment"). Constructions of the pre-1982 statute (and accordingly of the Amendment itself) to prohibit minority vote dilution are not easily reconciled with the strong reading of Rice discussed above. See White v. Regester, 412 U.S. 755 (1973); Whitcomb v. Chavis, 403 U.S. 124 (1971); see also Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973), aff'd sub nom. East Carroll Parish Sch. Bd. v. Marshall, 424 U.S. 636 (1976) (per curiam).
164. Section 2(A) prohibits practices that "result[] in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." Voting Rights Act § 2, 42 U.S.C. § 1973(a) (1994). Under the broad reading of Rice, section 5 of the Voting Rights Act is also vulnerable to invalidation. Like section 2, section 5 prohibits changes to electoral rules that have a racially discriminatory effect, see 42 U.S.C. § 1973c (noting that covered jurisdictions must demonstrate that a proposed electoral change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race..."), and thus, it also requires that affected jurisdictions consider race when crafting such rules. The Court's construction of section 5's effects test to bar changes that "lead to retrogression in the positions of racial minorities with respect to their effective exercise of the electoral franchise," Beer v. United States, 424 U.S. 130 (1976), similarly assumes that statutory compliance requires that jurisdictions engage in race-conscious decisionmaking. See also Bossier Parish, 520 U.S. at 478-85. Even if, however, the broad reading in Rice should prevail, the record of misconduct that gives rise to coverage under section 5 suggests that the Court may preserve this provision notwithstanding its reliance on race-conscious decisionmaking. See Lopez v. Monterey County, 525 U.S. 266 (1999) (upholding congressional power to enact section 5 as legislation enforcing the Fourteenth and Fifteenth Amendment).
165. Id. § 1973(b).
166. See, e.g., Johnson v. DeGrandy, 512 U.S. 997 (1994); Thornburg v. Gingles, 478 U.S. 30 (1986); see also Holder v. Hall, 512 U.S. 874, 891, 903-04 (1994) (Thomas, J., concurring) (rejecting the Court's construction of section 2).
167. See Shaw v. Hunt, 517 U.S. 899, 915 (1996); Miller v. Johnson, 515 U.S. 900, 920-21 (1995); Johnson, 512 U.S. at 1011-12; Bush v. Vera, 517 U.S. 952, 990 (1996) (O'Connor, J., concurring).
168. See Abrams v. Johnson, 521 U.S. 74, 103 (1997) (Breyer, J., dissenting); Bush, 517 U.S. at 1045 (Souter, J., dissenting); Shaw v. Reno, 509 U.S. 630, 379 (1993).
169. Cf. Bossier Parish, 528 U.S. at 334 n.3 (noting that precedent does not establish the Fifteenth Amendment's application to vote dilution); see also supra note 160.
170. Bossier Parish, 528 U.S. at 360 (Souter, J., concurring in part and dissenting in part).
171. See Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 493-95 (1997) (Breyer, J., concurring in part and concurring in the judgment).
172. Writing for the Court in Johnson v. DeGrandy, Justice Souter observed that majority-minority districts should not be used where meaningful cross-racial coalitions are possible in their absence. 512 U.S. at 1020 ("It bears recalling, however, that for all the virtues of majority-minority districts as remedial devices, they rely on a quintessentially race-conscious calculus aptly described as the 'politics of second best.'"). Such districts are, however, constitutionally permissible and statutorily required where needed "to ensure equal political and electoral opportunity." Id.
173. An expressive and constitutive understanding of the vote, moreover, helps explain why replacing an electoral system with an appointive one eliminates the constitutional defect, even though no one gets to vote under the resulting system. See Avery v. Midland County, 390 U.S. 474 (1968); cf. Chisom v. Roemer, 501 U.S. 380, 401 (1991).
174. See, e.g., Gotanda, supra note 67, at 1-5.
175. See generally BERNARD R. BERELSON, VOTING (1954); ANGUS CAMPBELL ET AL., THE AMERICAN VOTER (1960); CIVIC ENGAGEMENT IN AMERICAN DEMOCRACY (Theda Skocpol & Morris Fiorina eds., 1999); E.J. DIONNE, JR., WHY AMERICANS HATE POLITICS (1991); WHY PEOPLE DON'T TRUST GOVERNMENT (Joseph Nye et al. eds., 1997).
176. See FRANCIS FOX PIVEN & RICHARD A. CLOWARD, WHY AMERICANS DON'T VOTE (1988).
177. See, e.g., Theda Skocpol et al., How Americans Became Civic, in CIVIC ENGAGEMENT IN AMERICAN DEMOCRACY, supra note 176; LEON D. EPSTEIN, POLITICAL PARTIES IN THE AMERICAN MOLD 161-74 (1986); MICHAEL E. MCGERR, THE DECLINE OF POPULAR POLITICS: THE AMERICAN NORTH, 1865-1928, at 5-6 (1986); MICHAEL SHUDSON, THE GOOD CITIZEN: A HISTORY OF AMERICAN CIVIC LIFE 5 (1998); ROBERT H. WIEBE, SELF-RULE: A CULTURAL HISTORY OF AMERICAN DEMOCRACY 68, 83 (1995); see also EDWARD MORGAN, INVENTING THE PEOPLE: THE RISE OF POPULAR SOVEREIGNTY IN ENGLAND AND AMERICA 174-208 (1988); WOOD, supra note 113.
178. WIEBE, supra note 178, at 66; see also id. at 82-83 ("Approaching the polls, [voters] carried a fully panoply of insular loyalties. In the act of voting, however, it was as if citizens entered a peculiar state of nature, where as they cast their ballots they were stripped of any identity other than that of sovereign citizens deciding collectively. For that instant, they were the American People.").
179. See Bush v. Vera, 517 U.S. 952, 1071-72 (1996) (Souter, J., dissenting) ("[T]he price of imposing a principle of colorblindness in the name of the Fourteenth Amendment would be submerging the votes of those whom the Fourteenth and Fifteenth Amendments were adopted to protect, precisely the problem that necessitated our recognition of vote dilution as a constitutional violation in the first place.").
180. See City of Mobile v. Bolden, 446 U.S. 55, 66-68 (1980).
181. See Brief for Respondent at 20-40, Rice v. Cayetano, 120 S. Ct. 1044 (2000) (No. 98-818); Rice v. Cayetano, 146 F.3d 1075, 1078-79 (9th Cir. 1998) (noting this position).
182. See Rice, 120 S. Ct. at 1056-57.
183. See Pildes, supra note 102, at 2539-41.
184. See City of Mobile, 446 U.S. at 134-37 (Marshall, J., dissenting) (arguing that a jurisdiction need not take action "because of" the result to act with the requisite intent and that the common law foreseeability presumption should suffice).
185. See City of Boerne v. Flores, 521 U.S. 507, 519 (1997) ("Congress does not enforce a constitutional right by changing what the right is."); see also Kimel v. Florida Bd. of Regents, 528 U.S. 62, 88 (2000) (invalidating a provision of the Age Discrimination in Employment Act because, inter alia, Congress "has effectively elevated the standard for analyzing age discrimination to heightened scrutiny").
186. Jesse Guzman lost to a white candidate in a racially polarized vote in which virtually all eligible white voters participated, while many of the city's black residents had been unable to register. See TAPER, supra note 2, at 13-14.
187. See id. at 14-15; Pildes & Niemi, supra note 118, at 552.
188. Gomillion v. Lightfoot, 364 U.S. 339, 349 (1960) (Whittaker, J., concurring).
189. 439 U.S. 60 (1978).
190. See Larry Alexander, Lost in the Political Thicket, 41 FLA. L. REV. 563 (1989).
191. Holt, 439 U.S. at 70.
192. Id. at 74 (quoting Salyer Land Company v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 732 (1973)); see also Briffault, supra note 70, at 386-89 (discussing Holt); Karlan, supra note 10, at 289 (noting the different approaches in Gomillion and Holt); Note, Holt Civic Club v. City of Tuscaloosa: Extraterritorials Denied the Right to Vote, 68 CAL. L. REV. 126 (1980).
193. In contrast to both Rice and Gomillion, the Court in Holt may well have viewed the residents of Holt to have chosen voluntarily to live outside Tuscaloosa's city limits and thereby to have denied themselves membership in the