Race and the Right to Vote After Rice v. Cayetano

Abstract

This Article traces the Supreme Court's reasoning in its recent decision, Rice v. Cayetano, 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's 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 otherwise would 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 factual predicate. This Article explores this conception of voting and the impact of race and the ramifications it may have for future voting rights cases.