Understanding the Right to an Undiluted Vote, 114 HARV. L. REV. 1663 (2001)
This Article offers a new approach for conceptualizing vote dilution claims. Professor Gerken argues that abridgment of the right to an undiluted vote is a special kind of injury, one that does not fit easily within a conventional individual rights framework. She demonstrates that vote dilution claims require a court to examine the relative treatment of groups in determining whether an individual has been harmed. Professor Gerken terms rights that share this special characteristic "aggregate rights." After closely examining the unique attributes of aggregate rights, the Article uses the Supreme Court's decision in Shaw v. Hunt - specifically its application of a traditional form of strict scrutiny to a remedy for vote dilution - to explore how the differences between conventional individual rights and aggregate rights play out in practice. Professor Gerken demonstrates that a doctrinal structure built around a traditional conception of individual rights fails to achieve its purpose when applied in the context of an aggregate harm. She further explains how a doctrine like strict scrutiny can be tailored to fit within an aggregate rights framework. Finally, Professor Gerken examines the difficult normative questions raised by an aggregate rights approach. She suggests that although an aggregate right does notfit easily with conventional assumptions about individual rights, it nonetheless can properly be deemed an individual right. She notes, however, that to the extent that the group-based characteristics of aggregate rights seem inconsistent with individualist principles, there is no easy doctrinal fix for this problem because these characteristics stem from the nature of the underlying injury. Thus, she concludes that the Court's adherence to a highly individualist notion of rights in Shaw v. Hunt portends a serious constitutional battle. At stake will be the constitutionality of Section 2 and other measures to redress civil rights injuries that share dilution's unique attributes, as well as some of the basic principles that undergird our representative democracy.
Date of Authorship for this Version
Gerken, Heather K., "Understanding the Right to an Undiluted Vote" (2001). Faculty Scholarship Series. 360.