When Can a Minority Group State a Vote-Dilution Claim Under Section 2 of the Voting Rights Act? by Theodore M. Shaw

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1 V O T I N G R I G H T S When Can a Minority Group State a Vote-Dilution Claim Under Section 2 of the Voting Rights Act? by Theodore M. Shaw PREVIEW of United States Supreme Court Cases, pages American Bar Association. Case at a Glance Theodore M. Shaw is a professor of law at Columbia Law School in New York City and of counsel to the law firm Fulbright & Jaworski. He can be reached at tshaw@law.columbia.edu or (212) ISSUE Can a racial minority group that constitutes less than 50 percent of a proposed district s population state a vote dilution claim under Section 2 of the Voting Rights Act, 42 U.S.C. 1973? FACTS Section 2 of the act was designed to protect against dilution of minority votes and, in the language of the statute, to provide minority voters the opportunity to elect representatives of their choice. The act provides that a violation is established if: based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the state or political subdivision are not equally open to participation by [minority voters] in that [they] have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. 42 U.S.C In Thornburg v. Gingles, 478 U.S. 30 (1986), the Supreme Court established a three-part test for Section 2 vote dilution claims: (1) The minority group must be sufficiently large and geographically compact to constitute a majority in a single-member district; (2) The minority group must be politically cohesive ; and (3) The white majority votes sufficiently as a block to enable it usually to defeat the minority s preferred candidate. Id. at It is the first Gingles prerequisite that is at issue in Bartlett. The North Carolina legislature s House of Representatives has 120 members. Its voting-age electorate is 22.1 percent black. The number of African American representatives ranged between 3 (2.5 percent) and (Continued on Page 64) BARTLETT V. STRICKLAND DOCKET NO ARGUMENT DATE: OCTOBER 14, 2008 FROM: SUPREME COURT OF NORTH CAROLINA Section 2 of the Voting Rights Act was designed to protect against dilution of minority votes and, in the language of the statute, to provide minority voters the opportunity to elect representatives of their choice. Now the Supreme Court has agreed to decide whether a racial minority group that constitutes less than 50 percent of a proposed district s voting-age population can state a vote dilution claim under the Act. 63

2 14 (11.7 percent) in the 1980s, and after redistricting in the 1990s rose to 18 (15 percent of the total number of representatives). The House now has 20 black representatives (16.7 percent of the total). In 1991, the Justice Department chided the North Carolina General Assembly to draw single-member districts in the southeastern part of the state that would afford black voters the opportunity to elect representatives of their choice. The eight counties in the southeastern portion of the state have a population of 600,000, of whom 22 percent is black. Of nine House Districts, black voters can elect their representatives of choice in one District 18, which was intentionally drawn as a majorityminority district. The Bartlett case involves District 18, which at the time of its creation in 1991 included parts of four counties and had a black voting-age population of 55.7 percent; it elected the first black representative in southeastern North Carolina since Reconstruction in He was reelected biannually between 1994 and Following the Assembly s 2000 census redistricting, the state s supreme court ruled that the plan violated the North Carolina Constitution s Whole County Provisions (N.C. Art. II, 3(3), 5(3)), which provide that no country shall be divided between House or Senate districts. Stephenson v. Bartlett, 562 S.E. 2d 247 (N.C. 2003) (Stephenson I). The court acknowledged that the Whole County Provisions had to give way to the Voting Rights Act and one person one vote considerations, but concluded that the provisions still should be enforced to the maximum extent possible. The court rejected the initial redistricting plan devised after Stephenson I as constitutionally deficient and drew up an interim plan to implement the 2002 elections. Under that plan, District 18 was maintained as a Section 2 district, but its African American population fell below 50 percent. The legislature then adopted a third redistricting plan that took into account demographic changes and the U.S. Supreme Court s decision in Shaw v. Hunt, 517 U.S. 899 (1996), which struck down a bizarrely shaped majority-minority North Carolina congressional district drawn pursuant to the Voting Rights Act. District 18 now had a total black population of 42.9 percent and a black voting-age population (VAP) of 39.4 percent. District 18 now included parts of Pender and New Hanover counties, and 53.7 percent of registered Democratic voters were black. North Carolina argues that while the black VAP in District 18 is less than 50 percent, black voters can nonetheless elect representatives of their choice because they can determine the outcome of primary elections and, in coalition with a small but sufficient number of white voters, they are also able to elect candidates of their choice in the general election. Moreover, the state argues that the best single-county alternative would not have afforded black voters that opportunity. CASE ANALYSIS The respondents are residents of Pender County who sued in 2004 to enforce Stephenson I and the state constitution s Whole County Provisions. They argue that a splintered Pender County (split among five House districts in the 1990s and slated to share House representation with 10 other counties under the plan proposed by the General Assembly in 2001) would be politically compromised. Under a post- Stephenson I interim plan in 2002, they argue, Pender County was within a single House district and thus able to elect one of its residents to the General Assembly. Stephenson II, however, invalidated that plan, emphasizing the need for the VRA and one person one vote compliance. 582 S.E. 2d 247 (N.C. 2003). The subsequent plan, the subject of the current challenge in the U.S. Supreme Court, split Pender County between House Districts 16 and 18. In their brief, the respondents argue that Pender and New Hanover counties combined can sustain three state House districts: Pender County s 2000 census population of 41,082 is approximately percent of the population needed for an ideal House District. The Bartlett respondents assert that Gingles imposes a bright line requiring a 50 percent minority threshold before a state must create a Section 2 opportunity-to-elect district. Moreover, they argue, Section 2 s totality-of-the-circumstances test only operates after the 50 percent threshold is established, and does not operate (as the state argues) to allow consideration of whether a less than 50 percent minority population can constitute a functional majority when augmented by a small but reliable number of white crossover voters who cement the guarantee that minority voters can elect representatives of choice. Respondents further argue that the bright-line rule is necessary in order to maintain a judicially manageable standard in Section 2 cases. The parties disagree on whether the bright-line 50-percent rule will create a conflict with Section 5 of the Voting Rights Act. Section 5 requires jurisdictions with a history of racial discrimination in electoral politics, as well as some in which language minorities are substantially represented, to preclear any changes in voting procedures or 64 Issue No. 1 Volume 36

3 electoral plans with either the federal district court for the District of Columbia or the Justice Department. It also bars changes that have retrogressive effect. In Georgia v. Ashcroft, 539 U.S. 461 (2003), the Supreme Court ruled that Section 5 retrogression analysis does not only ask whether the number of safe majority-minority districts has been decreased. Ashcroft also allowed consideration of minority-influence districts. The Court found that retrogression concerns may be satisfied by influence districts where minorities may not be sufficiently numerous to elect representatives of their choice but can influence the outcome of an election. The state petitioners argue that the bright-line test would be inconsistent with the Supreme Court s Ashcroft holding, and to the extent that the Court refuses to recognize that an opportunity-to-elect district may be a crossover district in which black voters are less than 50 percent, it perpetuates racial balkanization. Crossover districts are by definition districts in which interracial politics are at work. The state further argues that Sections 2 and 5 are thrown into tension by the North Carolina Supreme Court s ruling striking down District 18 and rejecting the notion of a less than 50 percent minority district that operates as a functional majority by relying upon white crossover voters to guarantee black voters opportunity to elect. The wrinkle is that the Voting Rights Act was extended and amended in 2006, in part to provide that the Section 5 retrogression inquiry should be limited to determining whether there has been a reduction in the number of safe majority-minority districts. The Bartlett petitioners argue, however, that the 2006 Amendment to American Bar Association Section 5 uses the opportunity-toelect language with which the Ashcroft court was concerned: Section 5 and Section 2 differ in certain important respects. Both statutes, however, share a common purpose of protecting minority voters against practices that dilute their ability to elect representatives of choice. In light of that common purpose, there is no reason that the Section 5 ability-to-elect inquiry should consider the effect of both majority minority districts and coalition districts, while the Section 2 opportunity-to-elect standard should focus exclusively on whether minority voters constitute a numerical majority in a district. Nothing in the distinct language or purposes of the two provisions justifies that kind of disharmony between Section 2 and Section 5. Brief for Petitioners at 36, citing LULAC v. Perry, 126 S.Ct.2594 (2006) at The State petitioners and their amici argue that the 2006 amendment that was aimed at undoing Ashcroft does not bar Section 2 functionalminority districts that rely on crossover voters. In effect, they argue that it is one thing to substitute influence districts as the Section 5 measure of retrogression and to back away from requiring majority-minority districts (even if they are possible and necessary to guarantee minority voters the opportunity to elect where the Gingles prerequisites are satisfied). But, they say, it is quite another thing to hold that in districts where it is not necessary to have a numerical majority in order to guarantee minority voters an opportunity to elect (because a functional majority exists) that a functional majorityminority district cannot be drawn. 65 The Bartlett respondents maintain that application of the 50 percent rule creates no tension between Sections 2 and 5 of the Voting Rights Act because they are entirely separate provisions that serve different purposes. They argue that Gingles said that a minority group must demonstrate that it can constitute a majority in an electoral district, and that a majority is a threshold requirement. They warn of opening a Pandora s Box of litigation with unmanageable standards that will further balkanize electoral politics. Unsurprisingly, as in almost every Voting Rights case heard by the Supreme Court in the last 20 years, the parties disagree on whether those seeking to draw districts pursuant to the Voting Rights Act are trying to impose a regime that maximizes minority voting strength and representation. Perhaps most stark is the disagreement between the Bartlett parties over whose position advances the goal for minimizing the role of race in politics. Each lays claim to this virtue: the petitioners because they envision functional minority districts in which the near-majority minority voting-age population coalesces with a small but sufficient number of white crossover voters to guarantee minority voters an opportunity to elect representatives of their choice, and the respondents because their bright-line rule on its face limits the instances in which electoral districts are drawn with racial considerations overtly in mind. The United States filed a brief as amicus curiae supporting affirmance, arguing that Section 2 generally requires a showing that a minority group can constitute a majority of the relevant population in a proposed district. The requirement is not absolute, we are told; it is not necessary in all cases to (Continued on Page 66)

4 demonstrate that a minority can be a majority in a district where there is evidence of intentional discrimination or where the minority group falls just short of being a majority. Because neither of these exceptions is present in the case now before the Court, the government maintains that the North Carolina Supreme Court did not have to reach the issue of whether a numerical majority is always required. The government brief rejects the functional-majority approach. On the other hand, it contends that where minority voters cannot constitute a majority, a Section 2 violation does not exist based upon the availability of crossover voters. It further argues that functionalmajority districts will magnify consideration of race in electoral politics and increase the number of Section 2 cases filed. The Justice Department brief further argues that while the 2006 extension and amendment of the Voting Rights Act (formally The Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. No , Section 5(b)) was intended to overrule Georgia v. Ashcroft s application of Section 5 to embrace influence districts, it was not clear that it was intended to address crossover districts in which some white voters will crossover to support minority candidates. Consequently, the government maintains that there is no tension between Sections 2 and 5, and that a functional-majority test is unnecessary. Other notable amici include members of the Congressional Black Caucus, who argue that application of an inflexible 50 percent rule will freeze or even reverse voting-rights progress. Of 42 members of the Congressional Black Caucus in the 110th Congress, 20 of them (or 48 percent) were elected from districts in which African Americans constitute less than 50 percent of the voting-age population. Without crossover voting from white voters these members would not be in Congress. The Florida House of Representatives filed a brief in support of respondents, while Illinois, Arizona, California, Connecticut, Georgia, Kansas, Kentucky, Maryland, Massachusetts, Mississippi, Missouri, New Jersey, New Mexico, and Ohio filed in support of petitioners. Civil rights and civil liberties groups representing African Americans, Latinos, and Asian Americans, the League of Women s Voters, and election-policy groups filed in support of petitioners, while an organization of black conservatives signed on to a brief with other conservative activists and scholars in support of respondents. A group of election law experts and academicians filed a Brief in Support of Neither Party that sought to help the Court by providing empirical data and information on the possible impact of the Court s decision on the 2010 redistricting process. SIGNIFICANCE Generally unspoken, but certainly on the minds of almost everyone involved in or following Bartlett is the historic presidential campaign that will culminate less than a month after the Court hears arguments on October14. The point in time at which Barack Obama is a nominee for the presidency is an extraordinary moment in American history, one that could not have happened without the Voting Rights Act. This moment in our history is a reminder of how far the United States has progressed in its quest to overcome its long and sordid history of racism. And yet it is also a reminder of how far we have yet to go. At the core of the Gingles test lies the phenomenon of racially polarized voting and the usual inability of minority voters in many districts to elect representatives of their choice. The respondents and their supporters either lose sight of that phenomenon or underplay its significance. Senator Obama s electoral success signals for them the antiquity of the Voting Rights Act and raises questions about its continued relevance. Yet, if there is any issue that has loomed large in this extraordinary election year, it has been race. No credible political analysis can ignore the issue, and for all of Obama s success, some still fear that race may play too large a role in the election, even the determining one. Whatever the outcome of the election, the phenomenon of racially polarized voting is both enduring and changing. It will be analyzed by political scientists, pundits, elected officials, campaign strategists, judges, lawyers, and historians for years to come. Senator Obama s name may not be uttered during the oral arguments, but the effect of his historic run may pass more than fleetingly through the minds of the justices, lawyers, and observers in the courtroom. One thing seems certain: whatever the outcome of the election, Bartlett will not be the last time the Supreme Court wrestles with the thorny questions of race and electoral politics. ATTORNEYS FOR THE PARTIES For Petitioner Gary Bartlett, Executive Director of the North Carolina State Board of Elections et al. (Christopher G. Browning Jr. (919) ) For Respondent Dwight Strickland et al. (Carl W. Thurman III (910) ) 66 Issue No. 1 Volume 36

5 AMICUS BRIEFS In Support of Petitioner Gary Bartlett, Executive Director of the North Carolina State Board of Elections et al. Campaign Legal Center (J. Gerald Hebert (202) ) Illinois et al. (Michael A. Scodro (312) ) Lawyers Committee for Civil Rights Under Law et al. (Matthew Michael Hoffman (202) ) League of Women Voters of the United States (Sam Hirsch (202) ) Mexican American Legal Defense and Educational Fund et al. (Lois D. Thompson (310) ) Sanford Bishop Jr. et al. (Jeh Charles Johnson (212) ) In Support of Respondent Dwight Strickland et al. American Legislative Exchange Council et al. (E. Marshall Braden (202) ) Florida House of Representatives (Scott D. Makar (850) ) Pacific Legal Foundation et al. (Sharon L. Browne (916) ) United States (Gregory G. Garre, Acting Solicitor General (202) ) In Support of Neither Party Nathaniel Persily et al. (Nathaniel Persily (212) ) American Bar Association 67