who spent an endless amount of time kibitzing and reading drafts. This article is part of a larger project that I've been working on for the last few years. Thanks to the research assistants whose work fed into that larger project and informed my thinking on this one:
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. Huntspecifically its application of a traditional form of strict scrutiny to a remedy for vote dilutionto 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 ? 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. course: the highly individualistic view of rights developed by the *Assistant Professor, Harvard Law School. A.B. i99i, Princeton; J.D. I994, University of Michigan. I am grateful for the extraordinarily helpful comments and suggestions of a number of voting-rights scholars and democratic theorists-Lani Guinier, Samuel Issacharoff, Frank Michelman, and Richard Pildesas well as for close readings from people outside the field, including Samuel Bagenstos,
During the last year and a half, the Supreme Court has issued three important election law decisions in each of election law's main fiefdoms: race and redistricting, 1 campaign finance, 2 and the regulation of political parties. 3 Each has already been the subject of extensive analysis and critique by specialists in each area. What has been missing from the commentary thus far, including that provided in this Symposium, has been an effort to connect the dots. Thus, in keeping with the move in election law toward understanding it as a coherent field of study, 4 this Essay claims that these three seemingly disparate † Assistant Professor of Law, Harvard Law School. I would like to thank Guy
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