Conquered Provinces? The Voting Rights Act and State Power

Transcription

1 Conquered Provinces? The Voting Rights Act and State Power Christina Rivers* Congress will soon review key provisions of the Voting Rights Act (VRA). A perennial concern has been the act s effect on federalism. In 1982, Congress amended the VRA both to prevent discriminatory electoral outcomes and to enhance minority political power. Since the 1990s, the Supreme Court has adjudicated the VRA in a way that limits states use of race to protect that power. An informal alliance has since emerged between Congress, the Justice Department, states, and minority voters against what they view as a retrogressive voting rights jurisprudence. This article will argue that Congress should restore state autonomy to use race as a remedial factor when districting by reaffirming the spirit and intent of the 1982 amendments. One of the most powerful engines of democracy in America, the Voting Rights Act (VRA), is scheduled for reauthorization in Since key provisions of the act infringe on state power to regulate electoral processes, it is considered a significant departure from traditional concepts of dual federalism. There were even fears that the VRA s enforcement provisions would reduce states to little more than conquered provinces (Ball et al. 1982, 57, 90, 144). 1 As it turns out, those fears were not entirely unfounded. The VRA has been celebrated for triggering a quiet revolution (Davidson and Grofman 1994) in the South and elsewhere. But the act also triggered a devolution, in the literal sense, of states purview over the electoral process. As a result of conflicting interpretations of the VRA at the national level, state power over districting and other electoral processes has been relegated to the national government. In the meantime, minority political power has been buffeted between conflicts over federalism and the separation of powers. This article will argue that Congress should reaffirm the VRA s outcomes and race-conscious orientation in order to (a) resolve at least some of the conflicts over the meaning and purpose of the act and (b) restore states power to use race as a remedial factor when designing new electoral plans. The VRA s effect on federalism can be broken into four time periods. The first covers the initial passage of the act in The second is characterized by major DePaul University Publius: The Journal of Federalism volume 36 number 3, pp doi: /publius/pjj026 Advance Access publication May 5, 2006 ª The Author Published by Oxford University Press on behalf of CSF Associates: Publius, Inc. All rights reserved. For permissions, please journals.permissions@oxfordjournals.org.

2 422 Christina Rivers expansions of it in 1975 and 1982; this includes a shift from simply ensuring equal access to the ballot to preventing racially discriminatory electoral processes as well. The third is characterized by judicial restrictions of the scope of the VRA since We are at the cusp of the fourth phase as Congress prepares to revisit the act in Two provisions generated considerable wrangling in Congress when it last amended the VRA nearly 25 years ago, and are likely to be contentious again. With respect to federalism, the most important of these provisions is Section Five, the act s primary oversight and enforcement mechanism. Initially targeting states of the former Confederacy, it has been expanded by Congress to cover several additional states and jurisdictions. 2 Section Five stipulates that covered areas wishing to enact new electoral plans must either obtain a declaratory judgment from the District Court for the District of Columbia that the proposed changes do... not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or submit proposals to the Department of Justice (DOJ) for preclearance prior to enactment (42 U.S.C. 1973c (1988), Section Five). States most often pursue the second option of preclearance by the DOJ. Section Five has been consistently denounced by adherents of dual federalism in both political parties as an unconstitutional conquest of state power. Although Section Two covers all fifty states, conflicting interpretations of the provision have had serious implications for federalism. Section Two originally prohibited states from implementing electoral plans that denied the right to vote on account of race or color. It was changed in 1982 to prohibit any electoral plan that results in a denial or abridgement of the right of any citizen... to vote on account of race or color (42 U.S.C. 1973c (1988), Section Two). This was a significant transformation: Where Section Two initially prohibited states from suppressing the voting rights of racial minorities, it currently prohibits states from suppressing the voting power of racial minorities. Because key language of Section Two is echoed in Section Five, it is plausible that a violation of the former signals a violation of the latter. The Supreme Court majority has contended in several recent decisions that these two provisions stand alone. Conversely, Congress, the DOJ, civil rights advocates, and some states have found it difficult to consider them independently of each other. 3 Although traditionally reluctant to implicate itself in political processes, the Supreme Court has been an active participant in the debates over states use of race when creating new electoral plans. Since the early 1990s the Court has chipped away at the VRA and, by extension, state autonomy to use race as a remedial factor in districting. Ironically, states and jurisdictions that once relied on racist methods to suppress minority political power have at times been prohibited by the Court from using race-conscious methods to protect minority political power. 4 An intriguing by-product of the Court s decisions is an alliance between minority voters, their advocates in Congress, the DOJ, and states over the permissibility of remedial uses of race when redistricting.

3 The Voting Rights Act and State Power 423 Fundamentally at issue is Congress intent for the VRA, especially Sections Two and Five. Hence the central question of this article: How do conflicting interpretations of the VRA at the national level affect the relation between states and the federal government, as both attempt to prevent minority political power from being subsumed by majority interests? A preliminary answer is that the Supreme Court s rather rigid fusion of color-blind constitutionalism with the doctrine of one-personone-vote conquers state power to use race as a primary, remedial factor when drawing district lines. In the process, the Court has also trumped Congress intent for the VRA. Origins of the Voting Rights Act Although the VRA is a product of the 1960s civil rights movement, the need for voting rights legislation emerged a century earlier. The Thirteenth, Fourteenth, and Fifteenth Amendments were ratified with the dual goals of granting full citizenship to freed slaves and ensuring Republican Party dominance. Conquered on three fronts by war, partisanship, and law, southern states roundly rejected these new amendments. From the southern perspective they conflicted with the Tenth Amendment s guarantee of states rights, and were thus unconstitutional. As the era of Reconstruction waned, southern state autonomy was restored by the Supreme Court s subversion of the Fourteenth Amendment (which in turn rendered the Fifteenth virtually ineffectual). In 1875 in U.S. v. Cruikshank, 92 U.S. 542 (1876), the Court deferred to Mississippi s response to whites massacre of blacks contesting an election. It also held that while the Fourteenth and Fifteenth Amendments prohibited racial barriers to the ballot, they did not guarantee the right to vote. A few years later in the Slaughter-House Cases 83 U.S. 36 (1873) and Strauder v. West Virginia 100 U.S. 303 (1879), the Court further softened the effect of the Fourteenth Amendment on states rights, holding that the Fourteenth Amendment s equal protection clause prevented only federal infringements of civil rights. These decisions propped open the doors for states to discriminate against blacks. 5 In 1883 in the Civil Rights Cases 109 U.S. 3 (1883), the Court effectively removed the national government from the business of protecting civil rights of Americans (Ball et al. 1982, 37). A dozen years later in Plessy v. Ferguson 163 U.S. 537 (1896) the Court slammed shut the door through which the federal government had intervened to protect blacks civil rights. Thus in little more than a decade, and with considerable assistance from the judicial branch, southern states transformed themselves from conquered to conquering provinces with regard to blacks civil rights. 6 Judicial deference to state control of voting rights began to change when the National Association for the Advancement of Colored People (NAACP) mounted its legal assault on Texas racially exclusive primaries and political parties, beginning in 1927 with Nixon v. Herndon 273 U.S. 536 (1927) and culminating in 1944 with Smith v. Allwright 321 U.S. 649 (1944). 7 The Court s development of the doctrine of state

4 424 Christina Rivers action in these cases meant that states could no longer disfranchise their black citizens with impunity. Not surprisingly, these decisions emboldened southern blacks to register to vote. Also not surprisingly, southern states renewed their reliance on literacy, interpretation, character tests, and similar devices that, while fair on their face, were administered in a racially discriminatory manner. In one extreme example of an unfair application of Louisiana s interpretation test, the phrase frdum foof spetgh a white applicant s written restatement of the state constitution s freedom of speech clause was accepted by the county registrar (Issacharoff et al. 2002, 118). In Lassiter v. Northampton County Board of Elections 360 U.S. 45 (1959), the Court affirmed states rights to employ literacy tests to qualify voters. It was not until 1965 that it invalidated the use of interpretation tests in U.S. v. Louisiana 380 U.S After the landmark decision in Brown v. Board of Education 347 U.S. 483 (1954), the Court became increasingly hostile to egregious acts of electoral discrimination. As this happened, many southern states simply threw discretion to the wind. In addition to increasing their reliance on literacy and interpretation tests, states made rather heavyhanded use of racial gerrymanders. The Court put an end to that practice in Gomillion v. Lightfoot 364 U.S. 339 (1960), in which it was particularly chagrined by the transformation of Tuskegee, Alabama s formerly square municipal boundary to an uncouth 28-sided figure that excluded all but four of Tuskegee s approximately four hundred registered black voters without removing a single white one (Gomillion v. Lightfoot, 340). Despite the NAACP s successful litigation of voting rights cases, the expense and time required to mount a successful suit increased. Frequent misplacement of key records, strategic resignations of registrars, purges of recently registered blacks from the rolls, and recalcitrant federal court judges meant that legal victories often came at an overwhelming price (Ball et al. 1982, 40 44). Moreover, segregationists within the Democratic Party succeeded in separating the NAACP from its legal arm in order to hobble that organization s legal strategy to end racial segregation. By 1965 serious electoral barriers remained, including poll taxes (despite the ratification of the Twenty-fourth Amendment prohibiting them in 1964), literacy tests, interpretation tests, and lengthy, often invasive voter registration forms. These tactics were often accompanied by threats of job loss, property damage, and physical harm. Against this backdrop, the VRA is aptly described as the culmination of a haphazard civil rights policy developed by Congress that was at times more reactive than deliberate (Ball et al. 1982). Caught between the diligence of civil rights activism and the doggedness of southern resistance to that activism, Congress passed the VRA with the clear recognition that doing so might be seen as a federal conquest of southern states rights. Congress initial intent for the VRA was to equalize electoral opportunities, with the expectation that doing so would eventually yield egalitarian political outcomes. This expectation had been fueled by two Supreme Court decisions. In Baker v. Carr 369 U.S. 186 (1962), the Court ruled that regionally disproportionate representation as a

5 The Voting Rights Act and State Power 425 result of outdated apportionment and districting schemes violated the equal protection clause. Two years later in Reynolds v. Sims 377 U.S. 533 (1964), the Court solidified the one-person one-vote standard that is now a central tenet of voting rights jurisprudence. 8 While neither of these cases was explicitly about racial discrimination, they had significant racial ramifications. The decisions in Baker and Reynolds facilitated the creation of majority-black districts in areas where doing so would otherwise have been impossible (McDonald 2003). Expanding the VRA by Restricting State Power to Discriminate Amending the VRA in 1975 Congress first renewed the VRA in 1970 for five years, at which point it extended Section Five coverage to areas in the Southwest and the Northeast. By 1975, pressure was mounting to extend and strengthen the act. Civil rights leaders testified that electoral discrimination was still too deeply etched into southern politics to repeal the act (U.S. Congress 1975, 20 29). Also of concern was the fact that the heavy-handed electoral barriers of old were being replaced by more sophisticated procedures that had the effect of reducing southern blacks political power. 9 An additional concern although certainly not a new problem was that of language-based electoral discrimination, primarily in southwestern regions that encompassed large populations of Spanish speakers. 10 Democratic Representative Barbara Jordan proposed extending Section Five coverage to her home state of Texas to protect black voters from racial discrimination, and Spanish-speaking voters from language discrimination. In her view, the dearth of black and Latino elected officials in Texas proved the effectiveness of discriminatory electoral practices (U.S. Congress 1975). Representative Jordan s proposals generated vigorous opposition on federalist grounds. According to coverage of the hearings in Congressional Quarterly Weekly Report (CQWR) and Congressional Quarterly Almanac (CQA), opponents contended that Section Five was no longer needed at all, much less on a linguistic basis. They further contended that Representative Jordan s bill perpetuated punitive reconstruction-type federal intervention in southern states (Johnson 1975). Proponents countered that the obstacles encountered by Spanish-language minorities were similar to those encountered by blacks in the South. 11 Rebutting claims that the VRA was an unjustifiable intrusion into the states, Representative Jordan noted that despite overall decreases in voting rights infractions in the South, the DOJ still rejected fifty preclearance requests in 1971, thirty in 1972, twenty-seven in 1973, and thirty in 1974 (CQA 1975, 527). Ultimately, Congresswoman Jordan and her colleagues prevailed. 12 Along with extending the preclearance requirements for seven years, Congress added protections against language-based discrimination in the Southwest

6 426 Christina Rivers and parts of the Northwest. In a compromise with the dual federalist position, the provision allowing states proving sustained compliance with Section Five to bail out of federal oversight was also extended. Amending the VRA in 1982 Section Two and Vote Dilution The 1975 amendments generated a significant increase in minority voter registration and turnout. These successes were followed by new problems however, demonstrating that it took more than conquering provincial power to conquer provincial discrimination. While the VRA was effective in eradicating old-fashioned disfranchising devices, it did little to mitigate the emerging problem of vote dilution: the weakening of a group s political power by devices that limit that group s ability to elect, control, or influence elected officials (Grofman et al. 1992, 25). Vote dilution threatened Section Two s proscriptions against electoral plans that abridged the right to vote, as well as Section Five s nonretrogression standard. A conflicting series of Supreme Court decisions also convinced Congress of the need to clarify as well as strengthen the VRA. In Whitcomb v. Chavis 403 U.S. 124 (1971), the Court held that a combination of single- and multimember districting was not unconstitutional simply because the proportion of black voters in some districts was insufficient for them to elect the candidate of their choice. Here, the Court looked for, but did not find, intent to discriminate. The Court applied the intent standard again in White v. Regester 412 U.S. 755 (1973), a challenge to elections that yielded white state legislators in predominantly Mexican and African American multimember districts. This time however, the Court gave more weight to the long-term effects of Texas discriminatory electoral history (illustrated by the fact that the regions had elected almost no Mexican and black elected officials in their entire history), and held that the districting was invidiously discriminatory. By 1980 in Mobile v. Bolden 446 U.S. 55, the Court upheld an at-large districting plan because black challengers failed to prove that the city intentionally discriminated against them. Whitcomb and Mobile signaled a retreat by the Supreme Court from its earlier holding that [a]fter enduring nearly a century of [states ] systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims (South Carolina v. Katzenbach 383 U.S. 301 [1966], 328). Two years after Mobile however, the Court softened its requirement that plaintiffs produce a smoking gun of discriminatory intent in Rodgers v. Lodge 458 U.S. 613 (1982). Based on the history of racial disfranchisement in Georgia, along with the totality of discriminatory effects of the challenged at-large districting plan on its black voters, the Court found that black plaintiffs sufficiently demonstrated that the plan diluted their electoral strength. 13 By this point, the Court and Congress were clearly playing off of each other. The Mobile decision goaded

7 The Voting Rights Act and State Power 427 Congress into taking the Court s suggestion in Katzenbach. Rodgers, in turn, was argued while Congress was deliberating over the VRA. Throughout that process, Democrats sought openly to repudiate Mobile by mak[ing] clear that proof of discriminatory intent is not required to establish a violation of Section Two (U.S. Congress 1981, 29). It is thus likely that the Court anticipated the transformation of Section Two when it rendered its results-oriented decision in Rodgers (Cohodas 1981a, 1981b, 1982a, 1982b). Shifting the VRA s focus from electoral opportunities to results drew fire from those who argued that the Constitution ensured only the former. In the House, Representative Henry Hyde (R-IL) and others were particularly concerned that giving Section Two a results standard would guarantee proportional representation (U.S. Congress 1981). Then-Congressional Black Caucus (CBC) chair Walter Fauntroy (D-DC) asserted that a results-oriented Section Two was a necessary tool to insure equal access, not a stick to mandate proportional representation (U.S. Congress 1981, 1983). Hyde countered by proposing a rider stipulating that the presence of racial imbalance and/or polarized voting would not require proportional representation as a response (Issacharoff et al. 2002: 716). This debate was intensified in the Senate by South Carolina Senator Strom Thurmond s leadership of the Judiciary committee. 14 The committee was also very sensitive to President Reagan s misgivings about signing a results-oriented voting rights bill. The Senate debate was eventually resolved by an amendment sponsored by Senator Robert Dole (R-KS) that, echoing Rep. Hyde s in the House, stipulated that nothing in [Section Two] establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. (Cohodas 1982c). After a brief filibuster led by Jesse Helms (R-NC), the Senate approved the changes. One of the most controversial ramifications of the transformed Section Two remedial racial gerrymandering was not immediately apparent. It became very apparent after the 1990 reapportionment, which gave states their first opportunity to redistrict under the outcomes-oriented 1982 amendments. Section Five, Preclearance, and Federalism Because Section Five can be considered the national antidote to state and regional vote dilution, it has been a lightning rod for federalism debates (Ball et al. 1982). Along with the preclearance requirement, a key component of Section Five is its nonretrogression standard, which prohibits erosion in minority political power. Here again a series of Supreme Court decisions begged statutory clarification. In 1969, in Allen v. State Board of Elections 393 U.S. 544 (1969), the Court found that the conversion of single-member to at-large districts for county office impermissibly reduced black voters chances of electing the candidates of their choice, in violation of Section Five. Nearly a decade later in United Jewish Organizations v. Carey 430 U.S. 144 (1977), the Court upheld the use of race in districting drawn to maintain black political power in

8 428 Christina Rivers New York City, even though the districts fractured the Hasidic community. In a plurality decision, the Court held that since the districting did not unfairly cancel out white voting strength, it did not violate the Constitution (United Jewish Organizations v. Carey, 136, 165). In City of Richmond v. U.S. 422 U.S. 358 (1975), the Court upheld the annexation of the city s black voters into majority white suburban areas even though doing so reduced blacks presence on Richmond s city council. For the Court, this [was] not a statutory violation as long as the post-annexation electoral system fairly recognize[d] the minority s political potential (City of Richmond v. U.S., 378). A year later, in Beer v. U.S. 425 U.S. 130 (1976), the Court upheld a plan that yielded a single black city council member in New Orleans, a city whose population was 45 percent black. Here, the Court based its decision on absolute rather than relative outcomes. Because the reapportionment increased black representation by 100 percent from zero black council members to one any discriminatory intent to suppress black political power was redeemed by the plan s nonretrogressive outcome. The Court also held that the one-man one-vote standard was not relevant in this case (Beer v. U.S., 135, ). Five years later, in City of Rome v. U.S. 446 U.S. 156 (1980), the Court rejected the city s request to bail out of Section Five oversight, holding that when the provision covers entire states, localities in those states may not be exempted. The push to enhance Section Five was also triggered by litigation delays. By that time, the increasingly elusive wording of local and state electoral laws made proving discriminatory intent difficult. This made ferreting out malicious intent both time consuming and costly, in some cases exceeding six thousand hours. Moreover, lengthy litigation processes meant that discriminatory outcomes would remain in place for several years until the courts rendered their decisions (U.S. Congress 1981: ). Apparently, the Court s earlier mention of Congress own findings that case-by-case litigation was inadequate to combat widespread and persistent discrimination (South Carolina v. Katzenbach, 328) also motivated legislators to finally address this problem. In April 1981, House Judiciary Committee Chair Pete Rodino (D-NJ) proposed extending Section Five for ten years. The CBC wanted to make it permanent (U.S. Congress 1981, 1446). Opponents again countered on federalist grounds that selective application of preclearance put covered states in the penalty box and unfairly infringed on southern states sovereignty (U.S. Congress 1981, 3). Several alternatives, such as shortening the duration of preclearance obligations, expanding the bail-out provisions for states that proved compliance with the provision, and settling disputes locally rather than through the DOJ or the DC Court of Appeals were proposed (U.S. Congress 1981, 2). Eventually, Representative Hyde withdrew his opposition to Section Five; after hearing a month of testimony, he publicly stated his support for the extension and began to work with Democrats on a compromise proposal (Cohodas 1982d). Still, he endorsed expanding the bail-out mechanism for states that

9 The Voting Rights Act and State Power 429 could prove sustained compliance with the provision (Cohodas 1982e). After major compromises in both chambers of Congress, the revised VRA passed resoundingly in both houses: 85 8 in the Senate and in the House (Cohodas 1982f). By amending Section Two to allow plaintiffs to successfully challenge an electoral scheme with a showing of discriminatory results, Congress negated the Court s intentstandard in Mobile v. Bolden. Section Five was extended for twenty-five years and was again accompanied by a corresponding extension of the bail-out provision for states that could demonstrate ten years of compliance. It remained to be seen whether Congress simply reconquered states in 1982, or whether states would become willing partners with the national government in protecting the minority vote against residual and continuing discrimination. Current Concerns Judicial Constraints on State Power The full ramifications of the 1982 amendments would not be felt until states redrew their congressional districts after the 1990 census. Given Section Two s new focus on preventing discriminatory electoral outcomes, and under the watch of a DOJ that was particularly committed to enforcing Section Five s nonretrogression standard, covered states made greater efforts to draw congressional districts that advantaged minority voters. Between state legislators fundamental interest in retaining partisan advantage, scattered clusters of minority residents, and increasingly precise mapping technology, 15 some minority-majority districts turned out to be racial gerrymanders albeit benign ones. Such districting yielded the very results intended by Congress when it strengthened the VRA in After the 1992 congressional elections the number of black representatives elected to Congress grew from twenty-nine to forty. In North Carolina, black representatives were elected to Congress for the first time since Gains in minority representation were also seen at the state and local levels. The litigation that followed the 1990 redistricting demonstrates, however, that success can breed retrenchment. It also reveals the VRA s effect on a crucial federalism issue: the national obligation to ensure the vote a core element of state and federal citizenship against continuing state actions that compromise the minority vote. In passing and repeatedly strengthening the VRA, Congress has compelled states to prevent discriminatory electoral outcomes. In adjudicating cases involving the VRA, the Supreme Court has constrained states ability to comport with Congress intent. State autonomy has thus become tightly wedged between the debate that Congress and the Court are having over the role of race in voting and representation. Shaw v. Reno and the 1990s Districting Cases Majority-minority gerrymanders in North Carolina, Louisiana, and Georgia were quickly challenged on the grounds that they violated the equal protection clause of the

10 430 Christina Rivers Fourteenth amendment. After North Carolina drew one majority-black district, the DOJ compelled the state to draw a second one, resulting in two benign gerrymanders (Clayton 2000). 16 In Shaw v. Reno 509 U.S. 630 (1993), a challenge to North Carolina s districting plan, the Court held that the state engaged in an unconstitutional use of race because it created such irregularly shaped minority-majority districts. Equating the challenged districting with the racial gerrymander in Gomillion v. Lightfoot, the Court held that the former was tantamount to political apartheid (Shaw v. Reno, 647). This decision was the first of several judicial retreats from Congress intent for Section Two. One year later in Miller v. Johnson 515 U.S. 900 (1995), the Court tightened the connection between district shape and the presumption that race was the controlling factor in irregularly shaped majority-minority districts. (At the same time, it increased the plaintiffs burden of proof to show that race was the predominant factor in creating a majority-minority district.) With these decisions, the Court asserted its own power relative to that of states, as well as its peer branches of the national government. In rejecting North Carolina s argument that the DOJ s mandate to draw an additional majority-black district was a compelling state interest, the Court emphasized its reluctance to surrender... to the Executive Branch [the judiciary s] role in enforcing the constitutional limits on racebased official action (Miller v. Johnson, 922). One could argue that the Court correctly reined in a DOJ that systematically held covered states hostage until they maximized the number of majority-minority districts. Yet shortly after this decision, it was demonstrated that the DOJ had no policy requiring states to maximize the number of such districts, nor was there any evidence of collusion between the department and covered states to do so (Posner 1998). Either way, the Court s assertion in Miller illustrates that at least in the area of minority voting rights, conflicts involving federalism tend to involve conflicts in checks and balances as well. In Shaw v. Hunt 517 U.S. 899 (1996), the Court held that remedial racial gerrymanders are antithetical to the Fourteenth Amendment s goal of eradicating racial discrimination emanating from official sources in the states (Shaw v. Hunt, 907, internal quotations omitted). It did suggest that under certain circumstances racial classifications are permissible if states can prove with some specificity that past racial discrimination is a sufficiently compelling interest (Shaw v. Hunt, 909). Yet in Hunt v. Cromartie 526 U.S. 541 (1999) the last in the series on North Carolina s districting the Court effectively allowed irregularly-shaped majority-minority districts when there is evidence of a high correlation between race and party preference (Hunt v. Cromartie, 552). The net result of these decisions is that the Supreme Court has hollowed out Congress intent for Section Two of the VRA. In the process of prohibiting egregious uses of race, the Court has also undermined state s autonomy to use race in a remedial manner. Based on the Court s rationale in Cromartie, it appears that irregularly shaped majority-minority districts exist more by partisan default than in accordance with Section Two s antidilution provisions.

11 The Voting Rights Act and State Power 431 Branch v. Smith Beefing up Section Five s preclearance provisions in 1982 did not eradicate the problem of vote dilution or retrogression. In Shaw and Miller, the Court held that Section Five did not give covered jurisdictions carte blanche to engage in racial gerrymandering to prevent retrogression of minority political power. Branch v. Smith 538 U.S. 254 (2003) provides a recent illustration of the effects of preclearance delays. Here, the delay was not due to state foot-dragging but to DOJ oversight. In this case, the Court effectively trumped Section Five of the VRA with a little-known law governing districting for the House of Representatives. 17 After losing a congressional seat as a result of the 2000 census, Mississippi failed to pass a new redistricting plan in a timely manner. The delay generated two challenges, during which time the old districting plan remained in effect. The federal district court sought to invalidate that plan as well as any substitute proposed by the state court and to replace it with its own plan. Concerned about federal court delays, Mississippi asked the state court to issue a plan. Holding that Section Five was not violated by the delays stemming from DOJ oversight, the Supreme Court upheld the federal district court plan. It specified that while reapportionment does fall under state purview, it is appropriate for a federal court to assume that responsibility if the state has failed to do so within its own deadline (Branch v. Smith, , 279). The Court s decision in Branch v. Smith raises several concerns. First, there were never any allegations that Mississippi s districting plan was motivated by racial animus. Second, the districting delays were exacerbated rather than resolved by the DOJ. In a reversal of their usual position of endorsing federal oversight, civil rights organizations, along with the CBC, submitted an amicus curiae brief condemning the DOJ s oversight. They emphasized that the DOJ s delays in this case contrasted sharply with its typically timely responses to preclearance requests and contended that repeated requests for further information were a thinly disguised attempt to advantage the Republican Party (Brief of Amici Curiae in Branch v. Smith: 4, 7, 22). 18 Indeed, the districting plan did end up advantaging the Republican Party at the expense of Mississippi s black voters. This result is antithetical to Congress intent not only for Section Five s nonretrogression standard but also for Section Two s antidilution provisions. Georgia v. Ashcroft Georgia v. Ashcroft 539 U.S. 461 (2003) addresses four thorny questions. The first begs the difference between direct political power and indirect political influence. The second asks whether majority-minority districts enhance or actually dilute minority voting strength: Where do state legislators draw the literal and figurative lines between a safe number of minority voters, and packing in more than are needed to elect a candidate of their choice, thus diluting or wasting the minority vote? 19 The third asks how much it should matter whether black state legislators overwhelmingly

12 432 Christina Rivers approve a plan that, in the eyes of some black constituents, dilutes the minority vote. The last questions whether Sections Two and Five are inter- or independent. At issue in Georgia v. Ashcroft was whether unpacking a small number of safe districts and then dispersing minority voters among several influence districts in which minority voters have strong political influence rather than an actual electoral majority violated Section Five s nonretrogression provision. The DOJ rejected Georgia s plan on the grounds it unlawfully reduced black voters ability to elect candidates of their choice in three districts. It is worth noting here that all but two of the state s forty-five black legislators supported the plan, while four African American private citizens charged that it was retrogressive (Georgia v. Ashcroft, 471). The Court s rationale in Georgia is an extension of a pair of earlier holdings in Reno v. Bossier Parish School Board I 520 U.S. 471 (1997) and Reno v. Bossier Parish School Board II 528 U.S. 320 (2000) in which the Court separated Section Two s antidilution provisions from Section Five s antiretrogression provisions. In the first case, the Court held that a violation of Section Two does not compel the DOJ to deny preclearance under Section Five (Bossier I, ). In the second, it held that a voting change with a discriminatory but nonretrogressive purpose or effect does not violate Section Five. (Bossier II, , 335). Similarly, in remanding Georgia, the Court also noted that the lower court had failed to consider all of the relevant factors when attempting to determine whether several influence districts would offset the loss of one majority-minority district. Here, the difference between direct and indirect political power was secondary to the Court s conclusion that the purpose of the [VRA] is to prevent discrimination in the exercise of the electoral franchise and to foster our transformation to a society that is no longer fixated on race (Georgia v. Ashcroft, 490). This last line is particularly important. It elevates Justice Thomas s lengthy concurrence in Holder v. Hall 512 U.S. 874 (1994) nearly to the status of a majority opinion. In Holder, Thomas emphasized the utility of black influence districts as alternatives to remedial racial gerrymanders. The Court asserted in both Georgia and Holder that influence districts districts with a critical mass but not a majority of black or other minority voters would effectively prevent retrogression of black political power. However, this perspective implicitly privileges white leadership over black leadership and suggests that whites are better representatives than blacks. In this respect, the Court extended Justice O Connor s rather troubling assumption in Shaw v. Reno that minority representatives elected from majority-minority districts would represent their black constituents at the expense of their white ones (Shaw v. Reno, 648). 20 Also in Holder, Justice Thomas quite vividly dismissed the results orientation of Section Two as puffery, empty incantations, and mere conjurer s tricks, and as a legislative attempt to guarantee proportional representation (Holder v. Hall, ). He repudiated the decision in Thornburg v. Gingles 478 U.S. 30 (1986) and chastised the Court for turning the VRA into a vehicle for rationing political power rather than providing equal electoral opportunities. Thomas asserted that a proper

13 The Voting Rights Act and State Power 433 understanding of the VRA only prohibits electoral practices that impede access to the ballot; concerns about the weight or value of a vote are beyond [the act s] purview (Holder v. Hall, 915). In sum, the degree to which Justice Thomas s concurrence in Holder v. Hall is reinforced in the Court s rationale in Georgia v. Ashcroft suggests that Thomas s vehement opposition to racial classifications is as central to the Court s voting rights jurisprudence as is O Connor s more measured skepticism of them. Vieth v. Jubelirer Although Vieth v. Jubelirer 541 U.S. 267 (2004) is not explicitly about minority voting rights, districting problems in this case have potential racial ramifications. Indeed, in 2006 the Court heard arguments by Latino and African American plaintiffs that Texas s most recent congressional districting plan already criticized as a classic partisan gerrymander violates the Fourteenth Amendment s equal protection clause and Section Two of the VRA as well. 21 In Vieth, the Supreme Court reentered the political thicket of partisan gerrymanders just long enough to make a pronounced retreat from it. At issue was back-to-back redistricting within a single decade that disproportionately advantaged the Republican Party in Pennsylvania, whose voting population was nearly evenly split between the two major parties. Invoking the 1986 precedent of Davis v. Bandemer 478 U.S. 109 (1986), Democratic voters charged that the districting violated the equal protection clause of the Fourteenth Amendment. For those who view partisan gerrymandering as a problem that screams for a constitutional remedy, the Court s decision in Vieth was a disappointment. It passed up the opportunity to adopt a new standard of review that looks more closely at... the process[es] that foster partisan gerrymandering (Brief of Amici Curiae of Texas House Democrats , 2). Instead, the Court all but overturned Bandemer. Because the precedent lacked clear judicial standards, the Court deemed that it was incapable of principled application (Vieth v. Jubelirer, 281, 306). For the moment, the issue of partisan gerrymandering teeters precariously on Justice Kennedy s concurrence, in which he upheld Bandemer to allow time for new standards of review to emerge. Presaging the Texas gerrymandering litigation as well, Kennedy chastised Pennsylvania s insufficient legislative restraint, and condemned apportionment that is little more than election-rigging (Vieth v. Jubelirer, 316). It is possible that the Vieth decision will foster partisanship, compromise electoral choice, and encourage partisan gerrymanders that in turn will dilute the minority vote. The issues in the 2006 Texas gerrymandering cases certainly seem to bear this out. On the other hand, perhaps the decision in Vieth was the best one for minority voters in areas where the Democratic Party dominates. This makes sense in light of the Court s rationale in Hunt v. Cromartie. Moreover, one of the best barometers of minority influence is the strength of the Democratic Party (Note: The implications of b, 2601; Brief of Amici Curiae of Alabama Senate , 4, 15-18). From this perspective, and given the Court s limitation on remedial racial gerrymanders since

14 434 Christina Rivers Shaw v. Reno, black political power may depend now more than ever on benign partisan gerrymanders. The decision in Vieth, including Justice Kennedy s pivotal concurrence, raises two questions that merit consideration by Congress in What is the best way to reconcile the doctrinal tensions between racial and partisan gerrymandering at issue in Vieth (Brief of Amici Curiae of Alabama Senate , 16)? To what extent do state legislators understate both the mutability of partisan and the immutability of racial interests when districting? Indeed, Justice Scalia noted in Vieth that while racial and partisan interests often overlap, it is nonetheless a mistake to assume that they are automatically interchangeable. This is a notable departure from the Court majority s color-blind approach to the relationship between racial interests and political preferences. Until Congress addresses these questions, states are left with little guidance on how to balance partisan with racial interests. Putting the states at the mercy of the federal judiciary to resolve political questions compromises federalism. But when a state draws egregious partisan gerrymanders such as those at issue in Pennsylvania and Texas, it risks interpos[ing] itself between the people and their national government and abusing its power. This type of state action harms the system of federalism as much as it harms voters and the political process (Note: A new map 2004a, ). Conclusion and Future Prospects One can draw three conclusions about where the VRA now stands. First, Section Two has turned out to be its Achilles heel. The Court s decisions in Shaw v. Reno and Miller v. Johnson have restricted Section Two s scope and radically transformed its meaning. Second, Section Five has been defanged. The Court s conflation of direct minority political power with indirect minority political influence in Branch v. Smith and Georgia v. Ashcroft weakens the act s key enforcement provision. In this respect, the Supreme Court has hoisted Congress by its own petard. Moreover, in the process of preventing states from abusing their power to discriminate against minority voters, the Supreme Court has left states with insufficient authority to make remedial uses of race when drafting electoral plans. At times the Court has seemed willfully ignorant of Congress intent for the VRA. In Miller, the Court not only denied that Congress intended such a far-reaching application of Section Five but also held that it takes a shortsighted and unauthorized view of the VRA in order to justify the very racial stereotyping the Fourteenth Amendment forbids (Miller v. Johnson, ). Implying that Congress intent for a race-conscious VRA was erroneous, the Court twice asserted in Shaw v. Hunt that a correct reading of Section Five does not require states to draw a maximum number of majority-black districts (Shaw v. Hunt, 911). In Georgia v. Ashcroft, the Court asserted that the VRA is properly interpreted as fostering a color-blind society

15 The Voting Rights Act and State Power 435 (Georgia v. Ashcroft, 490). That the Rehnquist Court notable for its commitment to dual federalism has crafted a voting rights jurisprudence that limits state power to make remedial uses of race is ironic. The ultimate irony, however, is that as the Court erodes state power to use race-based measures to mitigate discrimination against minorities, it potentially erodes minority political power as well. In order to maintain the quiet revolution of minority political empowerment, Congress should bolster Sections Two and Five in a way that simultaneously restrains the Court while restoring state power to use race for remedial purposes. This means that Congress would engage in earnest debates about what minority political power means for minority voters more narrowly and for American democracy more generally. It must also distinguish between direct political power and indirect political influence, and whether the latter is an acceptable substitute for the former. Congress should also grapple with the shortcomings of color blindness. This includes a renewed discussion of the original, race-conscious intent of the Fourteenth Amendment. The Slaughter-House Cases 83 U.S. 36 (1873) and Strauder v. West Virginia 100 U.S. 303 (1880) are most commonly known for the Court s nullification of the privileges and immunities clause and for the loophole with which the Court left southern states free to trample on blacks civil rights. What tends to be forgotten, however, is the Court s early holding in those cases: that the pervading purpose of the Fourteenth Amendment was to ensure the freedom of the slave race... and the protection of the newly-made freedman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him (The Slaughter-House Cases, 71 72). This is a far cry from today s color-blind constitutionalism that makes it more difficult for states with a discriminatory past to use race-based methods now to protect minority voting power. 22 In addition to these doctrinal issues, Congress will have to address several other recent developments. The 2000 presidential elections were marred by episodes of minority vote suppression that have yet to be fully resolved (U.S. Commission on Civil Rights, 2001). Moreover, the need for federal oversight of discriminatory state actions clearly remains. In Vieth v. Jubelirer, the Court gave the green light not only to the ageold practice of partisan gerrymandering, but also to the new practice of perrymandering, that is, multiple rounds of redistricting within a single decade. 23 The need for congressional scrutiny of DOJ oversight is also increasingly apparent. In 2006 revelations of partisanship in DOJ emerged regarding its oversight of the 2002 Texas redistricting; Bush administration appointees allegedly overruled objections by career attorneys in the department that the second redistricting violated the VRA (DOJ Memorandum 2003, 66, 71 73). Early in 2005, Georgia passed legislation requiring its residents to purchase a photo voter identification card. The fee for the card was to be $20, and the card would be valid for five years. The state s goal was to prevent voter fraud, but for many the law raised the old specter of the poll tax. 24 In August 2005, four of the five members of the

16 436 Christina Rivers DOJ s voting rights section recommended against preclearing Georgia s law. However, the next day the chief of that section recommended the law be cleared, noting that the Attorney General does not interpose any objection to it (Eggen 2005). 25 In October 2005, a federal court judge likened the law to Jim Crow era poll taxes and upheld an injunction barring its enforcement (Fears 2005). In January 2006, Georgia Governor Sonny Perdue signed a revised version that removed the $20 fee for the card (Associated Press 2006). Although the revised version of Georgia s voter identification law has yet to be cleared by the DOJ, one wonders if the same partisan dynamics were in place in recent months as those that led to it to preclear the second Texas redistricting. In reconsidering the VRA, Congress will address these issues in light of the reality that depending in large part on which party is in control in Washington, the national government may end up working against state efforts to ensure minority representation. Complicating matters further are the recent changes on the Supreme Court. For the moment, little is known about how the two justices confirmed in the past year John Roberts and Samuel Alito view the relationship between states and the national government when it comes to minority voting rights. During the Senate confirmation hearings, Roberts s endorsement of the VRA was rather cursory. In response to queries by Senator Ted Kennedy (D-MA) about whether he supported the VRA as it currently exists, Roberts stated only that he had no issue with the fact that the act s constitutionality has been repeatedly upheld. Responding to Senator Russ Feingold s (D-WI) questions about Roberts s earlier objections to a results-oriented Section Two, he responded that he was simply reflecting the Reagan administration s position. When pushed further, he conceded that because he hadn t studied the VRA nor had he sufficiently followed the issue to determine whether the intent test or the effects test would have different results in different cases, he was in no position to make a judgment on that [question] (Transcript of Roberts Hearings 2005). In his confirmation hearings, Samuel Alito did not signal any departure from his earlier assertions that it was his dissatisfaction with the Warren Court s one-person one-vote doctrine that motivated him to study law (Cohen 2006, 16). While Alito s stance on this issue had no effect on his overall qualification as a nominee, Congress may nonetheless want to remain mindful of his views when it revisits the VRA. Forty years ago, Congress passed the VRA with full knowledge that in the process of rejecting racist assertions of the states rights doctrine, it was departing from traditional concepts of federalism as well. It should be clear, however, that Congress did not seek simply to conquer provinces. Rather, it sought to conquer provincial abuses of power. Since then Congress has thrice found it necessary to buttress the act against residual and new abuses of state and provincial power. In the process, state autonomy to use race-based measures to prevent or offset racial discrimination at the polls has been squeezed between Congress s, the DOJ s, and the Court s interpretations