What is required by Section 2 of the Voting Rights Act?
First of all, let me begin with the relevant section of Section 2:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or [because of membership in a language-minority group], as provided in subsection (b).
(b) A violation of subsection (a) 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 members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
Unlike Section 5, discussed below, Section 2 of the VRA applies nationwide. In short, what Section 2 prohibits is minority vote dilution which can take two forms:
Packing: As the name suggests, this is when minorities are concentrated in one district so as to reduce their voting power in neighboring districts. To be sure, the precise threshold is unclear between impermissible packing versus including a high enough minority percentage so as to permit the minority group to exercise effective control over election outcomes.
Packing is most subject to successful legal challenge when it can be shown that ‘unpacking’ a majority-minority district can result in the drawing of two majority-minority districts in its place. So, for instance, in 2006 the 8th Circuit Court of Appeals Bone Shirt v Hazeltine ruling struck down South Dakota’s legislative redistricting that featured a 90% Native American district alongside a 30% Native American district because one could draw two 60% Native American districts instead.
What is far less clear is whether a challenge might be successful in cases where ‘unpacking’ a majority-minority district would result in so-called ‘influence’ districts in which the minority group would create a substantial plurality, but not a majority. Quite a number of challenges have failed to succeed on those grounds. In my view, since recent decisions such as Bartlett v Strickland effectively provide no protection whatsoever to ‘influence’ districts, I cannot envision a challenge being successful on the basis of creating ‘influence’ districts when they are not required in the first instance.
Cracking: This occurs when a minority group is split up among several districts so as to minimize or eliminate the opportunity to elect the minority group’s candidate of choice, when it could instead be placed into a majority-minority district. Cracking is what most people think of as classic ‘vote dilution’ and it forms the basis for virtually all successful Section 2 challenges.
This brings me to the 1986 Supreme Court ruling that ultimately governs all Section 2 jurisprudence: Thornburg v Gingles. What this ruling essentially does is set forth three preconditions to a successful Section 2 challenge. Conversely, it establishes that a state is quite likely to be required to create a majority-minority district when the Gingles factors are present:
1) a minority group is large enough and lives closely enough together so that a relatively compact district in which the group constitutes a majority can be drawn;
2) the minority group has a history of political cohesiveness or voting as a group, and;
3) the white majority has a history of voting as a group sufficient to usually defeat the minority group's preferred candidate.
Once these three Gingles criteria are met, a court then examines whether under the “totality of circumstances” the minority group has less opportunity than other members of the electorate to influence the electoral process and to elect its candidates of choice. This is a crucial and frequently overlooked component of Section 2 jurisprudence.
Racially polarized voting is central to a showing of the second and third Gingles factors, so this is where a great degree of subjectivity and ambiguity enters the equation. As stated in Gingles, there is “no simple doctrinal test for the existence of legally significant racially polarized voting.” The amount of white bloc voting that will “minimize or cancel” the ability of minority voters to elect representatives of their choice “will vary from district to district according to a number of factors.” In short, “the degree of racial bloc voting that is cognizable as an element of a §2 vote dilution claim will vary according to a variety of factual circumstances.”
If that is not confusing enough, the 1994 Johnson v DeGrandy ruling affirmed:
(a) That the Gingles preconditions alone are not sufficient to establish Section 2 liability.
(b) That it is necessary for other evidence to be examined in the totality of circumstances, “including the extent of the opportunities minority voters enjoy to participate in the political process.”
(c) That whether it is physically possible to draw additional majority-minority districts is irrelevant because a state is not required to maximize majority-minority districts.
(d) That “substantial proportionality” is insufficient to establish that a minority group has equal opportunity to participate in the electoral process.
(e) That ‘proportionality’ is also not necessarily required in order for a minority group to have equal opportunity to participate in the electoral process.
In short, what one must examine is the history and the circumstances of minority participation in the electoral process within a given locale in order to assess whether the minority group has substantially equal opportunity to elect its candidates of choice (which is different from maximum opportunity or guaranteed opportunity). Whether or not this equal opportunity must be satisfied by the creation of a majority-minority district can only be determined on a case-by-case basis, which would presumably lead to a different finding in San Francisco than it would in San Antonio. For a listing of the “totality of circumstances” that are generally held to inform compliance with the VRA, see the addendum at the end of this diary.
Beyond Johnson v DeGrandy there are four Supreme Court rulings that significantly modify or clarify the requirements of the VRA in the current legal landscape.
Shaw v Reno: This 1993 ruling and its progeny establish the principle that racial considerations cannot impermissibly dominate the redistricting process. Generally speaking, Shaw v Reno is invoked when “non-compact majority-minority districts are drawn in such a manner that traditional redistricting principles, such as compactness, contiguity, and respect for political subdivisions or communities of interest, are substantially ignored” (to quote the NCGA). Stated differently, when the first Gingles factor is absent – that is, when the minority population is not geographically compact – the creation of a majority-minority district is subject to strict scrutiny.
Hunt v Cromartie: This 1999 clarification of Shaw established two principles:
1) Effective racial gerrymanders may be justifiable when shown to be the outcome of partisan concerns rather than overt racial considerations.
2) More importantly, a racial gerrymander is permissible if it is narrowly tailored to meet a compelling state interest, such as redress for historical discrimination.
In short, the nexus between Shaw & Cromartie lies in the showing that the partisan objectives cited by the state or alternately that the specified goals of the VRA cannot be achieved by a substantially more compact or less racially gerrymandered district.
LULAC v Perry: This 2006 ruling also established two key principles:
1) Partisan justifications, such as incumbent protection, cannot be used to justify minority vote dilution; by inference, traditional redistricting principles, such as following municipal boundaries, also cannot be used to justify minority vote dilution.
2) Minority communities that are widely separated from one another such that they neither form a cohesive political unit nor share substantially similar needs and interests do not by mere virtue of being members of the same minority group ‘off-set’ the elimination of a majority-minority district elsewhere.
While the full implications of LULAC have not been litigated, the core theme that unites all these rulings is that a majority-minority district must be considered on its own merits rather than within a broader statewide framework. To the extent that rulings such as Georgia v Ashcroft may have modified this requirement, the 2006 revision of the VRA presumptively preempts that.
Bartlett v Strickland: This 2009 ruling sought to establish a ‘bright-line 50% threshold’ for the drawing of VRA compliant districts. In short, states are not required to draw ‘crossover’ or ‘influence’ districts in which a minority forms a substantial proportion, but not a majority, of the district voting age population. This goes back to the first Gingles precondition wherein the VRA is invoked only where a minority group is large enough and lives closely enough together so that a relatively compact district in which the group constitutes a majority can be drawn.
Bartlett explicitly does not address whether a Section 2 claim may be present when two or more minority groups cannot meet the 50% threshold alone, but may collectively meet the Gingles factors when their populations are combined. In my view, the crux of the matter would be whether the second Gingles factor can be demonstrated: That the minority groups collectively have a history of political cohesiveness or voting as a bloc. My suspicion is that this would be a much tougher showing than is widely presumed (for instance, Johnson v DeGrandy originated on the supposition that African Americans and Latinos in South Florida had disparate political interests). Majority-minority districts in which a single minority group does not form a majority continue to occupy an unresolved grey area in the VRA legal landscape.
What is even less clear is the nexus between Bartlett and Section 5. Bartlett establishes the principle that a state is not required to take measures to maintain minority voting power in a district which has lost majority-minority status due to demographic shifts. In short, the key question is whether a majority-minority district would be required under present circumstances. What Bartlett does not directly answer is what happens when a majority-minority district covered under Section 5 falls below 50% minority population. Which brings me to:
What is required by Section 5 of the Voting Rights Act?
First of all, these are the jurisdictions covered by Section 5 of the VRA:
As amended in 2006, Section 5 prohibits the adoption of voting changes that have a discriminatory purpose or a retrogressive effect. In short, “retrogression” takes place when a redistricting plan puts a minority group in a worse position than if the change did not occur. Section 5 covered jurisdictions must file any redistricting changes for ‘preclearance’ by either the Department of Justice or the district court for the District of Columbia. Two crucial points should be kept in mind:
1) Section 5 and the concept of “retrogression” apply specifically to covered jurisdictions; where only certain counties within a state are covered, as in California or North Carolina, then, to quote the Supreme Court’s 1999 Lopez v Monterey County ruling (emphasis added): “The Act’s preclearance requirements apply to measures mandated by a noncovered State to the extent that these measures will effect a voting change in a covered county.”
2) The reach of Section 5 is limited to changes that have a discriminatory purpose or a retrogressive effect. In other words, preclearance under Section 5 does not mean that a redistricting scheme cannot be challenged on other grounds (as in LULAC). Conversely, preclearance cannot exceed the Section 5 mandate into a Section 2 analysis. The Justice Department may, however, file a separate enforcement action under Section 2.
The Department of Justice has released this DOJ Guidance outlining the procedures and standards that will be applied in the preclearance process for the 2010 cycle of redistricting. Here are the key points to bear in mind.
The Section 5 “benchmark” is the last legally enforceable redistricting plan for the covered jurisdiction. Any proposed changes will be assessed by comparison to this benchmark.
The DOJ will first examine the circumstances surrounding the adoption of a redistricting plan to determine whether evidence exists of any discriminatory purpose to deny or abridge the right to vote on the part of a minority group. As outlined by the 1977 Supreme Court Arlington Heights ruling that is cited by the DOJ, this will involve examining:
(1) The impact of the redistricting plan;
(2) the historical background of the redistricting plan, particularly if it reveals a series of decisions undertaken with discriminatory intent;
(3) the sequence of events leading up to the enactment of the redistricting plan;
(4) whether the redistricting plan departs, either procedurally or substantively, from the normal practice; and
(5) contemporaneous statements and viewpoints held by members of the adopting body or others who may play a significant role in the process (such as NC Representative Patrick McHenry).
With regard to the retrogressive effect analysis, the standard of comparison is the percentage of minority voters in the affected district using 2010 Census data for both the current and proposed plans. In other words, a district that was enacted with, say, a 64% African-American percentage in 2001 need not restore that level if the percentage had dropped to 58% by 2010 (as with LA-02). Although not definitive, this also suggests that Bartlett is accommodated in that a previously majority-minority district that has dropped to a less than 50% minority level based on the 2010 Census need not automatically be restored to majority-minority status.
In accordance with legal rulings relevant to determining Section 5 compliance, the DOJ has specified the following list of factors as relevant to a finding of non-retrogression:
(1) Whether minority voting strength is reduced by the proposed redistricting.
(2) Whether minority concentrations are fragmented among several districts.
(3) Whether minorities are over-concentrated in one or more districts.
(4) Whether alternative plans satisfying the requirements exist and were considered.
(5) Whether the proposed plan departs from objective districting criteria.
(6) Whether the plan is inconsistent with the jurisdiction’s ordinary redistricting standards.
What is ultimately most important are those cases in which a state claims that retrogression is unavoidable due to demographic shifts or other significant changes (such as losing seats due to reapportionment). In such cases, the burden is on the submitting state to demonstrate that a less-retrogressive plan cannot reasonably be drawn, and the DOJ will test this assertion with its own alternative plans.
The DOJ also explicitly affirms that: “Preventing retrogression under Section 5 does not require jurisdictions to violate Shaw v Reno and related cases.” This is crucial in light of arguments that Section 5 may somehow encompass the I-85 configuration of NC-12, which the Supreme Court has ruled is not required by Section 2 or Section 5 and is unconstitutional if drawn for racial purposes, or with regard to the newly enacted LA-02 New Orleans-to-Baton Rouge district that may very well be subject to a viable Shaw v Reno challenge.
I will now wrap up with a list of factors that are typically considered in a “totality of circumstances” analysis consequent Thornburg v Gingles and in light of Johnson v DeGrandy.
1. Maps demonstrating that reasonably compact minority-majority districts can be drawn.
2. An analysis of whether voting is racially polarized in the given locale.
3. The record of the legislative process involved in the adoption of the redistricting plan.
4. An assessment of whether minority candidates face added burdens in the nominating process, such as in closed caucuses or the like.
5. An assessment of the history of electoral discrimination within the given community, including poll taxes, literacy tests, the accessibility of polling places, and bilingual ballot options.
6. An assessment of the history of broader discrimination and disparities within the given community, in such areas as access to education, employment, or social services.
7. Examples of overt or implicit appeals to race or ethnicity in recent elections, such as in candidate advertising or campaign materials.
8. The record of wins or losses on the part of a minority group’s candidates of choice.
9. The degree of responsiveness by elected officials to the needs of minority groups.
10. An assessment of the jurisdiction’s rationale for not creating majority-minority districts.
It's worth emphasizing, however, that the legal analysis of a redistricting plan rarely reaches this level of detail. In most cases, a safe rule of thumb is that a finding of the Gingles conditions pre-supposes that the “totality of circumstances” will follow. More importantly, a confluence of political interests wherein the Democratic Party seeks to advocate for minority empowerment while the Republican Party benefits from the effective segregation of minority voters in many places tends to reinforce the maintenance of majority-minority districts. This is true even in places such as Chicago, Boston, Maryland, and Los Angeles where racially-polarized bloc voting may no longer be evident to the extent that would require such districts in order to provide minority groups with an equal opportunity to elect candidates of choice.
In short, a majority-minority district is not necessarily “VRA protected” by mere virtue of its existence. Its justification continues to be governed by the Gingles factors and by the dynamic “totality of circumstances” particular to the given locale. While it may well be socially desirable or politically expedient to maintain a given district, it is not necessarily required by the VRA itself, even where it may have been required at some point in the past.