“The Representative Government Principle”

Bertrall Ross has posted this draft on SSRN (forthcoming,Fordham Law Review).  Here is the abstract:

Challenges under the Equal Protection Clause require proof of intentional discrimination. That conventional account is rarely questioned by legal scholars or the courts. But that 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 constitutional vote dilution decisions, the Court has invalidated local electoral structure under the Equal Protection Clause because they deprived African Americans of the opportunity for effective representation in the political process. The Court reached its decisions despite the absence of any proof of intentional discrimination in the adoption of the electoral structure.

In these vote dilution cases, the Supreme Court is best understood as applying a critical alternative principle underlying the Equal Protection Clause, the representative government 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.

Judicial protection of majority rule and minorities’ effective representation in the political process is an under-recognized form of representation-structuring judicial review. Such review responds to the lack of institutional incentives for elected officials to change the status quo in furtherance of more democratic representation. This mode of review is necessary to establish the critical pre-conditions for the representation-reinforcing judicial review that the Court employs when addressing equal protection challenges outside the electoral structure context. Without establishing these pre-conditions, government decision-making cannot even be considered representative and representation-reinforcement fails as an approach to judicial review.

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