Editing Equal Protection Clause (section)

==Voting rights==
[[File:John Marshall Harlan II official.jpg|thumb|right|270px|Justice John Marshall Harlan II sought to interpret the Equal Protection Clause in the context of Section 2 of the same amendment]]The Supreme Court ruled in ''[[Nixon v. Herndon]]'' (1927) that the Fourteenth Amendment prohibited denial of the vote based on race. The first modern application of the Equal Protection Clause to voting law came in ''[[Baker v. Carr]]'' (1962), where the Court ruled that the districts that sent representatives to the [[Tennessee]] [[State legislature (United States)|state legislature]] were so malapportioned (with some legislators representing ten times the number of residents as others) that they violated the Equal Protection Clause.

It may seem counterintuitive that the Equal Protection Clause should provide for equal [[voting rights]]; after all, it would seem to make the [[Fifteenth Amendment to the United States Constitution|Fifteenth Amendment]] and the [[Nineteenth Amendment to the United States Constitution|Nineteenth Amendment]] redundant. Indeed, it was on this argument, as well as on the legislative history of the Fourteenth Amendment, that Justice [[John Marshall Harlan II|John M. Harlan]] (the grandson of the earlier Justice Harlan) relied on in his dissent from ''Reynolds''. Harlan quoted the congressional debates of 1866 to show that the framers did not intend for the Equal Protection Clause to extend to voting rights, and in reference to the Fifteenth and Nineteenth Amendments, he said:

{{quote|If constitutional amendment was the only means by which all men and, later, women, could be guaranteed the right to vote at all, even for <em>federal</em> officers, how can it be that the far less obvious right to a particular kind of apportionment of <em>state</em> legislatures{{nbsp}}... can be conferred by judicial construction of the Fourteenth Amendment? [Emphasis in the original.]}}

Harlan also relied on the fact that Section Two of the Fourteenth Amendment "expressly recognizes the States' power to deny 'or in any way' abridge the right of their inhabitants to vote for 'the members of the [state] Legislature.'"<ref>Van Alstyne, William. "The Fourteenth Amendment, the Right to Vote, and the Understanding of the Thirty-Ninth Congress", ''Supreme Court Review'', p. 33 (1965).</ref> Section Two of the Fourteenth Amendment provides a specific federal response to such actions by a state: reduction of a state's representation in Congress. However, the Supreme Court has instead responded that voting is a "fundamental right" on the same plane as marriage (''[[Loving v. Virginia]]''); for any discrimination in fundamental rights to be constitutional, the Court requires the legislation to pass strict scrutiny. Under this theory, equal protection jurisprudence has been applied to voting rights.

A recent use of equal protection doctrine came in ''[[Bush v. Gore]]'' (2000). At issue was the controversial recount in [[Florida]] in the aftermath of the [[U.S. presidential election, 2000|2000 presidential election]]. There, the Supreme Court held that the different standards of counting ballots across Florida violated the equal protection clause. The Supreme Court used four of its rulings from 1960s voting rights cases (one of which was ''[[Reynolds v. Sims]]'') to support its ruling in ''Bush v. Gore''. It was not this holding that proved especially controversial among commentators, and indeed, the proposition gained seven out of nine votes; Justices [[David Souter|Souter]] and [[Stephen Breyer|Breyer]] joined the majority of five—but only for the finding that there was an Equal Protection violation. Much more controversial was the remedy that the Court chose, namely, the cessation of a statewide recount.<ref>For criticisms as well as several defenses of the Court's decision, see Bush v. Gore'': The Question of Legitimacy'', edited by {{cite book |title= Bush v. Gore: the question of legitimacy|last=Ackerman |first=Bruce A. |year=2002 |publisher=Yale University Press |location=New Haven |isbn=978-0-300-09379-7 }} Another much-cited collection of essays is {{cite book |title=The Vote: Bush, Gore, and the Supreme Court |last=Sunstein |first=Cass |author-link=Cass Sunstein |author2=Epstein, Richard |author-link2=Richard Allen Epstein  |year=2001 |publisher=Chicago University Press |location=Chicago |isbn=978-0-226-21307-1 }}</ref>