Race and the Right to Vote after Rice v. Cayetano

Abstract

Last Term, the Supreme Court relied on Gomillion [v. Lightfoot] to hold that Hawaii, like Alabama before it, had segregated voters by race in violation of the Fifteenth Amendment. The state law at issue in Rice v. Cayetano provided that only Hawaiians could vote for the trustees of the state\u27s Office of Hawaiian Affairs ( OHA ), a public agency that oversees programs designed to benefit the State\u27s native people. Rice holds that restricting the OHA electorate to descendants of the 1778 inhabitants of the Hawaiian Islands embodied a racial classification that effectively fenc[ed] out whole classes of ...ci tizens from decisionmaking in critical state affairs. [...] Quite startling and worthy of attention, however, is the path the Court took in reaching its holding. [...] This Article traces the Court\u27s reasoning, which appears puzzling on its face, to a deeper understanding of racial classifications, participation in the electoral process, and the relationship between the two. Rice suggests that the primary value of political participation through voting lies not in the policies implemented by those elected, but in two distinct and related intrinsic benefits the vote produces: namely, the constitutive benefit an individual derives from political engagement with others and the expressive benefit derived from full membership in the political community. Rice posits, on the one hand, that a jurisdiction\u27s use of race to define an electorate distorts these beneficial effects by imposing on voters a state-approved identity instead of leaving voters free to develop an identity on their own and by disseminating the message that racial identity represents a relevant criterion for entry into the political community. Rice presumes, on the other hand, that the constitutive and expressive aspects of voting provide a crucial element to a group identity that would otherwise not be viewed as racial. This view of race confirms the idea that, at least within our constitutional practice, the concept of racial identity is a complex legal conclusion, not a pre-legal fact. [...] Read more broadly, Rice implies that many applications of section 2 of the Voting Rights Act are unconstitutional. Under this reading, Rice works a dramatic change in voting rights jurisprudence by indicating that electoral rules that even partially rely on race undermine the intrinsic values of voting and thereby violate the Fifteenth Amendment. In other words, districting plans not even subject to strict scrutiny under Shaw might be struck down under Rice. We can squarely confront these potentially far-reaching consequences of Rice, this Article suggests, only by recognizing the deeper conceptions of race and voting that underlie the case.[...] This Article begins in Part I by discussing the factual background that gave rise to the conflict in Rice v. Cayetano. Part II then addresses the Court\u27s decision in Rice, emphasizing the puzzling doctrinal route the majority took to reach its conclusion that the OHA\u27s voting system violates the Fifteenth Amendment. Part III explores why the Court might have chosen this path and suggests that the decision reflects the views that (1) the Constitution protects the vote primarily because of its intrinsic value to the individual and (2) the concept of race is a complex legal conclusion, not a pre-legal fact. It also explores the implications this conception may have in future cases brought under both section 2 of the Voting Rights Act and Shaw v. Reno. This Article concludes by discussing Rice\u27s distinct understanding of voting\u27s constitutive benefit and by assessing Rice\u27s reliance on Gomillion in light of the decision\u27s conception of voting\u27s intrinsic values