Nothing Personal: The Evolution of The Newest Equal Protection from Shaw v. Reno To Bush v. Gore

TLDR: In this paper, the authors argue that the Shaw cases reflect a ''structural? notion of equal protection, in which the clause is detached from the protection of any identifiable injury to a particular individual and is instead used to regulate the political process itself''.

Abstract: This article is a response to a piece by Robinson Everett, principal lawyer for the plaintiffs in a series of challenges to North Carolina?s post-1990 congressional redistricting collectively referred to as the Shaw cases. In it, I argue that the Shaw cases reflect a ?structural? notion of equal protection, in which the clause is detached from the protection of any identifiable injury to a particular individual and is instead used to regulate the political process itself. In particular, I focus on the concept of standing to show how incongruous the Shaw cases are. I then argue that Bush v. Gore is also a structural equal protection case. It raised quite similar issues of standing, remedies, judicial respect for the states and the political branches, and the frame within which to assess equal protection claims. In particular, using the resources of the Stanford Law Library's Election 2000 website, which contains virtually all the legal documents filed in the Florida recount cases, I show that Bush v. Gore raises serious questions of standing with respect to the equal protection clause claim with which the Supreme Court ultimately disposed of the case.

Full text

NORTH CAROLINA LAW REVIEW
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Nothing Personal: e Evolution of the Newest
Equal Protection from Shaw v. Reno to Bush v.
Gore
Pamela S. Karlan
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NOTHING
PERSONAL:
THE
EVOLUTION
OF
THE
NEWEST
EQUAL
PROTECTION
FROM
SHAW
V.
RENO
TO
BUSH
V.
GORE
PAMELA
S.
KARLAN"
In
this
Essay,
which is
a
response
to
Robinson
Everett's
Redistricting
in
North
Carolina-A
Personal
Perspective,
I
argue
that
the
Shaw
line
of
cases
and
the
Supreme
Court's
recent
decision
in
Bush
v.
Gore
share
some
critical
features.
Each
involves
what
I
call
"structural" equal
protection.
The
Supreme
Court
deploys
the
Equal
Protection
Clause
not
to
protect
the
rights
of
an
identifiable
group
of
individuals,
particularly
a
group
unable
to
protect
itself through
the
operation
of
the
normal
political
processes,
but
rather
to
regulate
the
institutional arrangements
within
which
politics
is
conducted.
The
Shaw
cases
and
Bush
v.
Gore raise
quite
similar
issues
of
standing
and
remedies. Neither
the
Shaw
cases
nor
Bush
v.
Gore
fully
answers
the
question
of
when,
and
why,
courts
should
intervene
in
the deeply
messy
process
of
partisan
politics.
Instead,
they
manifest
the
Supreme
Court's
general
disdain
for
the
other
branches
and
levels
of
government. Finally,
each
adopts
a
distressingly
narrow
perspective
within
which to
measure
equality,
a
perspective
that
shortcircuits
the
normal,
albeit potentially
contentious
and
messy,
process
of
self-government,
leaves
in
its wake weakened
institutions,
and
re-enlists
equal
protection
in
the
service
of
less,
rather
than
greater,
equality
and
democracy.
INTRODUCTION
.....................................................................................
1346
*
Kenneth
and
Harle
Montgomery
Professor
of
Public
Interest
Law,
Stanford
Law
School.
As
with
all my
work
in
this
field,
I
owe
many
of
my
insights
to
Sam
Issacharoff,
Rick
Pildes,
and
Jim
Blacksher.
In
addition,
I
thank
Henry
Weinstein and
Viola Canales
for
virtually
hours
of
conversations
on
the
issues
raised
in
this
piece. Portions
of
this
comment
appear,
in
a
different form,
in
Pamela
S.
Karlan,
The
Newest
Equal
Protection:
Regressive
Doctrine on
a
Changeable
Court,
in
THE
VOTE:
BUSH,
GORE
AND
THE
SUPREME
COURT
(Cass
R.
Sunstein &
Richard
A.
Epstein
eds.,
2001).
These
passages
appear
here
by
permission
of
the
University
of
Chicago
press.
Finally,
in
the
interest
of
full
disclosure,
I
have
participated
in
many
cases involving
the
issues
raised
by
Shaw
v.
Reno
and
its
progeny:
Sinkfield
v.
Kelley,
531
U.S.
28
(2000)
(per
curiam);
Meadows
v.
Moon,
521
U.S.
1113
(1997),
affg,
952
F.
Supp.
1141
(E.D.
Va.
1997)
(three-judge
court);
Shaw
v.
Hunt,
517
U.S.
899 (1996);
Miller
v.
Johnson,
515
U.S.
900
(1995);
and United
States
v.
Hays,
515
U.S.
737
(1995).

NORTH
CAROLINA
LAW
REVIEW
I.
STANDING
ON
THIN
AIR:
THE
"NEWEST
EQUAL
PROTECTION"
IN
THE
WRONGFUL
DIsTRICrING
CASES
.....
1348
II.
SKATING
ON
THIN
ICE:
THE
"NEWEST
EQUAL
PROTECTION"
IN
BUSH
V.
GORE
.............................................
1356
INTRODUCTION
During
the
week
of
November
27,
2000,
the
United
States
Supreme
Court
heard
two
cases
involving
judicial
regulation
of
electoral
politics.
The
first
case
was
Hunt
v.
Cromartie:
1
the
Court's
fifth
confrontation
with
North
Carolina's
post-1990
congressional
reapportionment
The
second
was
Bush
v.
Palm
Beach
County
Canvassing
Board:
the
Court's
first
encounter
with
the
disputed
presidential
election
of
2000
and
the
counting
of
ballots
in
Florida.
3
What
do
these
two
litigations
have
in
common?
A
lot
more
than
may
be
apparent
to
the
casual
reader.
Both
involve
what
I
will
call
"structural"
equal
protection.
The
Court
deploys
the
Equal
Protection
Clause
4
not
to
protect the
rights
of
an
identifiable
group
of
individuals,
particularly
a
group
unable
to
protect
itself
through
operation
of
the
normal
political
processes,
but
rather
to
regulate
the
institutional
arrangements
within
which
politics
is
conducted.
Neither
fully
answers
the
question
of
when,
and
why,
courts
should
intervene
in
the
very
messy
process
of
partisan
politics.
Further,
each
adopts
a
distressingly
narrow
perspective
within
which
to
measure
equality.
Most
of
the
commentary
about
Bush
v.
Gore,'
at
least
so
far,
has
been
quite
scathing.
6
A
common
thread
has
been
that
the
Court's
equal
protection
analysis
"had
no
basis
in
precedent."
7
This
Article
1.
121
S.Ct.
1452 (2001).
2.
The
Court
was
hearing
the
second
round
of oral
argument
in
Easley
v.
Cromartie.
See
also
Hunt
v.
Cromartie,
526
U.S.
541
(1999)
(remanding
the
case
for
a
full
trial
on
the
merits).
The
Court had
also
issued
two
opinions
in
a
prior
challenge
to the
state's
reapportionment
as
an
unconstitutional
racial
gerrymander.
Shaw
v.
Hunt,
517
U.S.
899
(1996);
Shaw
v.
Reno,
509
U.S.
630
(1993).
Even
earlier,
the
Court
had
summarily
affirmed
the
rejection
of
a challenge
to the
same
apportionment
as
an
unconstitutional
political gerrymander.
Pope
v.
Blue,
506
U.S.
801
(1992).
3.
531
U.S.
70
(2000).
4.
U.S.
CONST.
amend
XIV,
§ 1.
5. 531
U.S.
98
(2000).
6.
For representative
examples,
see
Samuel
Issacharoff,
Political
Judgments,
68
U.
CHi.
L.
REv.
637
(2001);
Michael
J.
Klarman,
Bush
v.
Gore
Through
the
Lens
of
Constitutional
History,
89
CAL.
L.
REV.
(forthcoming
Dec.
2001);
Cass
R.
Sunstein,
Order
Without
Law,
68
U.
CHI.
L.
REV.
757
(2001);
Mark
V.
Tushnet,
Renormalizing
Bush
v.
Gore,
90 GEO.
L.J.
(forthcomming
Nov.
2001);
Jeffrey
Rosen,
Disgrace,
NEW
REPUBLIC,
Dec.
25,2000,
at
18.
7.
Sunstein,
supra
note
6;
see
also,
e.g.,
David
G.
Savage,
The
Vote
Case
Fallout,
87
A.B.A.
J.
32
(2001)
(quoting
Professor
A.E.
Dick
Howard
as saying
"This
is
a
remarkable
1346
[Vol.
79

NEWEST
EQUAL
PROTECTION
takes
a
somewhat
different
tack.
Rather
than
condemning
Bush
v.
Gore
as
an
aberration,
it
criticizes
Bush
as
the
latest
manifestation
of
the
"newest
model
of equal
protection,"
the
Court's
Shaw
jurisprudence.'
Bush
v.
Gore
turns out
to
have
a
lot
in
common
with
Bush
v.
Vera.
9
As
Richard
Pildes
perceptively
notes,
the
"image
of
democracy"
that
has
informed
the
contemporary
Supreme
Court's
interventions
into
the
political
arena-in
contexts
as
diverse
as
blanket
primaries,
ballot
access,
and
candidate
debates-is
a
fear
of
too
much
democracy,
of too
robust
and
tumultuous
a
political
system.
10
That
image
underlies
the Court's
Shaw
jurisprudence
as
well:
the
Court
sees
itself
as
the
only
institution
capable
of
resolving
the
difficult
questions
raised
by
the
role
of
race
in
American
democracy.
In
the
Shaw
cases,
as
in
Bush
v.
Gore,
the
Supreme
Court
has
radically
transformed
not
only
the
substantive
rules
that
govern
reapportionments
and
recounts,
but
also
the
vertical
and
horizontal
relationships
among
the
various
institutional
players
involved
in
these
intensely
political
activities.
The former
concern
the
connection
between
the
federal
government
and
state
governments:
for
example,
what
is
the
extent
of
congressional
power
to
regulate
state
elections?
The
latter
concern
the
interaction
among
different
branches
of
government:
when
can
courts
overturn
the
choices
reached
by
other
branches
and when
should
courts
resolve,
or
pretermit,
conflicts
among
the
other
branches?
And,
as
Bush
v.
Gore
shows,
the
institutional
questions
may
sometimes
seem
almost
diagonal:
what
is
the
relationship
between,
for
example,
Article
II,
section
1
of
the
Constitution,
which
provides
that
"Each
State
shall
appoint"
its
presidential
electors
"in
such
Manner
as
the
Legislature
thereof
may
direct,"'"
the
federal
Electoral
Count
Act,
which
confers
special
responsibilities
on
Congress,
2
and
the
powers
of
the
Florida
and
federal
courts?
3
The
Supreme
Court's
newest
equal
protection
use
of
the
equal
protection
clause.
It
is
not
consistent
with
anything
they
have
done
in
the
past
25
years.").
8.
I
use
this
phrase
as
a
shorthand
to
describe
the
Court's
race-conscious
redistricting
cases,
which
began
with
the
decision
in
Shaw
v.
Reno,
509
U.S.
630
(1993).
9.
517
U.S.
952
(1996).
Bush
v.
Vera
is
the
Shaw
case
striking
down
three
majority-
nonwhite
congressional
districts
in
Texas.
Id.
at
956-57.
George
W.
Bush
was
named
as
a
defendant
because
he
was
the
Governor
of
Texas.
10.
Richard
H.
Pildes,
Democracy
and
Disorder,
68
U.
CHI.
L.
REV.
(forthcoming
summer
2001).
11.
U.S.
CONsr.
art.
II,
§1,
cl.
2.
12.
3
U.S.C.
§§
1-18
(1994).
13.
For
a
more
extensive
consideration
of these
issues,
see generally
SAMUEL
ISSACHAROFF,
PAMELA
S.
KARLAN
&
RICHARD
H.
PILDES,
WHEN
ELECTIONS
Go
2001]
1347

NORTH
CAROLINA
LAW
REVIEW
manifests
a
striking
mistrust
of
nearly
every
other
actor
in
the
reapportionment
and
recount
processes.
Forty
years
after
the
judiciary's
first
significant
foray
into
the
political
thicket,
we find
ourselves
ensnared
in
the
political
Bushes.
I.
STANDING
ON
THIN
AIR: THE
"NEWEST
EQUAL
PROTECTION"
IN
THE
WRONGFUL
DISTRICrING
CASES
There
is
a
deep
irony
in
the
title
of
Robinson
Everett's
contribution
to
this
Symposium.
14
Everett
can offer
a
"personal
perspective"
on
the North
Carolina
experience
only
because
he
was
the
lead
counsel
for the
plaintiffs
in
both
Shaw
and
Cromartie.
Had
he
been
simply
a
plaintiff,
he
would
have virtually
nothing "personal"
to
say
and
no
distinctive
"perspective"
to
offer;
as
a
matter
of
law,
the
distinctive
qualities
and
experiences
of
plaintiffs
in
the
Shaw
cases
are
entirely
irrelevant."
5
All
that
matters
is
that
the
plaintiffs
live
in
the
district
they
challenge.
6
To
be
sure,
the
other
named
plaintiffs
in
Shaw
and
Cromartie
make
a
brief
appearance
in
the
text
or
footnotes
of
Everett's
article,
but
what
do
we
learn about
them?
That
Everett
knew each
of
them
for
a
long
time.
17
That Ruth
Shaw
had
been
a
plaintiff
in
one
of
the
early
one-person,
one-vote
lawsuits.
18
That
Martin
Cromartie
lives
in
Tarboro
and
has
known
Everett
for
almost
fifty
years.'
9
Was
there
anything
that
singled
out
these
individuals
from
all
their
neighbors
who were
also
allocated
among
the
state's
twelve congressional
districts?
Actually,
we
learn
one
other
thing
about
this
deracinated
quintet:
although
each
of
them
was
white,
this
BAD:
THE
LAW
OF
DEMOCRACY
AND
THE
PRESIDENTIAL ELECTION
OF
2000
(rev.
ed.
2001)
[hereinafter
BAD
ELECTIONS].
14.
Robinson
0.
Everett,
Redistricting
in
North
Carolina-A
Personal
Perspective,
79
N.C.
L.
REV.
1301
(2001).
15.
The
most
pointed
example
of
this
fact
arose
in
one
of
the
Florida
Shaw
cases,
Johnson
v.
Mortham,
926
F.
Supp.
1460
(N.D.
Fla.
1996)
(three-judge
court).
In that
case,
the
plaintiffs
successfully
resisted
being
deposed
by
defendant-intervenors
on the
ground
that
the
plaintiffs
had
no discoverable
information
about
the
lawsuit
they
had
initiated.
Email
from
Brenda
Wright,
attorney for
Defendant-Intervenors,
to
Pamela
S.
Karlan,
Professor
of
Law,
Stanford
University
Law School
(Feb.
5,
2001 10:10:19)
(on
file
with
author
and
the
North
Carolina
Law
Review).
16.
For more
extensive
discussions
of
Shaw
standing, see
Sinkfield
v.
Kelley,
531
U.S.
28
(2000);
United
States
v. Hays,
515
U.S.
737 (1995);
John
Hart
Ely,
Standing
to
Challenge
Pro-Minority
Gerrymanders,
111
HARv.
L.
REV.
576
(1997);
Samuel
Issacharoff
&
Pamela
S.
Karlan,
Standing
and
Misunderstanding
in
Voting
Rights
Law,
111
HARv.
L.
REV. 2276
(1998);
Pamela
S.
Karlan,
Still
Hazy
After All
These
Years:
Voting
Rights
in
the
Post-Shaw
Era,
26
CtJMB.
L.
REV.
287,289-99
(1996)
[hereinafter
Still Hazy].
17.
Everett,
supra
note
14,
at
1310
n.51.
18.
Id
19.
Id.
at
1322
n.96.
1348
[Vol.
79

Frequently asked questions

Q1. What have the authors contributed in "Nothing personal: the evolution of the newest equal protection from shaw v. reno to bush v. gore" ?

But if the injuries the Supreme Court sees are the exclusion of valid undervotes by stringent counties and exclusionary counting teams and the exclusion of valid overvotes by an incomplete recount process, who has standing to raise these claims ? So unless he has third-party standing, he is not a proper champion of the excluded voters ' claims. It is hard to see George W. Bush as the champion of a claim by undervoters in overwhelmingly Democratic Palm Beach County that they are being denied equal protection because their votes would have been included under the more liberal Broward County standard. I examined the pleadings filed by the other parties in Gore v. Harris to see what they claimed their injuries to be. 78. Motion to Intervene in Election Contest by Stephen Cruce, Teresa Cruce, Terry Kelly, and Jeanette K. Seymour ( filed Nov. 27, 2000 ), available at 1360 [ Vol. 79 NEWEST EQUAL PROTECTION Kelly and Seymour did not cast ballots at all, ostensibly because, on the way to the polls, they heard media reports that Gore had carried Florida, and `` became convinced that [ their ] vote [ s ] would be meaningless. 80 Leaving aside the claims based on the media 's effect on voter turnout, as to which I can not even begin to identify a legally cognizable injury, the nature of the intervenors ' arguments was somewhat opaque. 8 ' In any event, however, they distinguished themselves from the candidate-parties ( Bush, Gore, Cheney, and Lieberman ) in the following terms: `` [ their ] view of the 2000 presidential election in Florida comes from a statewide perspective, and [ their ] concerns lean toward the legitimacy and constitutionality of the election process, more than to [ their ] own preference of who ought to win. `` ' By the time the case reached the U. S. Supreme Court, the Cruce intervenors ' key claim seemed to be that the problem with the recount ordered by the Florida Supreme Court was that it potentially denied voters who chose not to cast a vote in the presidential election their right against compelled speech. But none of the Cruce intervenors was denied that right: two of them did not vote at all, and claimed that the denial of their right to vote was the injury they had suffered, see supra note 78 and accompanying text, and the other two just as clearly chose not to exercise that right, since they did cast votes for president. The other intervenors did raise more individuated claims. Butler alleged that: the Presidential votes in a few Florida counties specifically selected by Gore are being given special treatment, by being manually examined for `` voter intent '' as to the vote ( if any ) for a Presidential candidate ( and thereafter being counted for a candidate ), as opposed to those ballots otherwise not tallied as to any Presidential vote by a machine count because no clear evidence of any Presidential vote was machine-detected. This ability to pick and choose, `` without consideration of other counties which have discredited or 'undervoted ' ballots '' violated the rights of voters in those counties whose returns were not re-examined. But what is the appropriate remedy for their claims ? The most sensible remedy obviously is to reexamine ballots in the counties where they voted as well. Edu/cv-00-2808w. pdf ( last visited Oct. 1, 2001 ) ( on file with the North Carolina Law Review ) ; see also Motion for Order Allowing Intervention 14 ( filed Nov. 30, 2000 ) ( alleging that having manual recounts `` in the counties unfairly selected by the GoreLieberman candidacy destroys their right to due process and equal protection of the law, '' and further claiming that `` the statutory scheme for manual recounting allows the losing candidates to intentionally and unfairly skew the election results thereby diminishing the weight of Petitioners'/Intervenors ' right to vote '' ). In the Shaw cases, the Court focuses on the claims of individual voters to the exclusion of claims about race-conscious districting 's contributions to the achievement of effective political equality for minority communities. That is why the most outrageous passage in Bush v. Gore is the following: The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Instead, the authors are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. Moreover, the Supreme Court also seemed not to think that either the Florida Legislature, using its powers under Article II of the federal Constitution, or the United States Congress, using its powers under the Electoral Count Act,97 was capable of policing the Florida election process. 90 In Bush v. Gore, the problem lies in the Court 's myopic focus on potential unequal treatment in the manual recount process. The difference is 72,000 votes-more than ten times the difference between the [ number of votes potentially recoverable under the ] Broward and Palm Beach County standards. Once again, as it did in the Shaw cases, the Court intervened to short circuit the normal, albeit potentially contentious and messy, process of self-government. 

Q2. How many undervotes would be recovered if Accuvote were used everywhere?

The Accuvote devices (used in 16 Florida counties) have an undervote rate of about three per thousand which amounts to 18,000 undervotes statewide if Accuvote were used everywhere. 

Q3. What is the significance of the Shaw plaintiffs?

The race of the Shaw plaintiffs is relevant as well to my broader point: that the newest equal protection, unlike its predecessor, is far more solicitous of the interests of individuals who are fully capable of protecting their interests within the broader political processes. 

Q4. How many counties did the Florida Supreme Court order to conduct a manual recount?

6 The Florida Supreme Court directed: (1) that the state's popular vote total be adjusted to add additional votes for Al Gore identified in a full manual recount in Palm Beach County and a partial manual recount in Miami-Dade County;57 (2) that the trial court conduct a recount of approximately 9,000 as-yet unreviewed "undercount" ballots from Miami-Dade County;58 and (3) that the trial court order the county canvassing boards in all other counties that had not yet conducted a manual recount of their undervotes to do so as well. 

Q5. What is the problem with the failure to re-examine overvotes?

But according to the Supreme Court, there is a third potential problem with the failure to re-examine overvotes: this might allow invalid votes to be counted, since "the citizen who marks two candidates, only one of which is discernable by the machine, will have his vote counted even though it should have been read as an invalid ballot."