Litigation under Section 2 of the Voting Rights Act

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1 Litigation under Section 2 of the Voting Rights Act I. Brief Overview of Section 2 of the Voting Rights Act Section 2 of the Voting Rights Act is a nationwide prohibition against voting practices and procedures that result in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color. 1 Voting practices and procedures include, but are not limited to, redistricting plans, at-large election systems, poll worker hiring, voter registration procedures, and voter identification requirements. II. Establishing a Section 2 Claim In Thornburg v. Gingles, the Court stated [t]he essence of a 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives. 2 To asses such a claim, a preliminary question is whether the voting practice or procedure either [a] dilutes minority voting strength or [b] denies minorities the opportunity to vote. While plaintiffs can prevail under Section 2 with either or both a vote dilution claim or a vote denial claim, each has a different framework for assessing the claim. A. Vote Dilution: Does the practice or procedure dilute minority voting strength? Section 2 cases are most often brought in the context of vote dilution. 3 This occurs if the voting practice or procedure dilutes minority voting strength that is, if it minimizes or cancels out minority voting strength. A vote dilution claim requires evidence of a disparate negative impact on a covered minority and evidence under the totality of the circumstances, including the relevant factors from the Senate Report that accompanied the re-enactment of the Voting Rights Act in 1982, that the challenged law is depriving the minority group of an equal opportunity to participate in the electoral system The Four Prongs of Gingles and De Grandy As a threshold for Section 2 claims, the Court in Gingles identified three conditions which must be met. If all three conditions are met, then the Section 2 analysis considers the totality of the circumstances to determine whether members of a racial group have less opportunity than do other members of the electorate. 5 Together, the relevant case law establishes a four-pronged test for Section 2 claims: (1) Is the minority group sufficiently large and geographically compact to constitute a majority in a single member district? (2) Is the minority group politically cohesive? (3) Does the white majority vote sufficiently as a bloc to enable it in the absence of special circumstances, such as the minority candidate running unopposed... usually to defeat the minority s preferred candidate? 1 42 U.S.C. 1973(a) U.S. 30, 47 (1986). 3 See, Daniel P. Tokaji, The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 S.C. L. Rev. 689, (2006). 4 See, LULAC v. Perry, 548 U.S. 399, 425 (2006). 5 Id. at (citing Johnson v. De Grandy 512 U.S. 997, (1994)). 1

2 (4) Does the totality of the circumstances indicate that members of a racial group have less opportunity than do other members of the electorate? The first three questions, comprising the Gingles factors, must be answered in the affirmative for a claim to succeed. And the final prong considers the Senate Report factors and also places particular emphasis on proportionality. 6 a. The First Prong of the Gingles Test The first prong asks whether a minority group is sufficiently large and geographically compact to constitute a majority in a single-member district. 7 There are two important issues related to this prong: numerosity (i.e., sufficiently large ) and geographical compactness. i. Numerosity: Determining the numerator and denominator. There are two important questions to answer related to numerosity. First, what is the proper population base that one should use to make the calculation (i.e., the denominator)? The Court has not settled this question, but has indicated that it will use either a population base of voting-age citizens ( CVAP ) or a voting-age population without reference to citizenship ( VAP ). The second question is what percentage of the proper population base constitutes a majority for these purposes? This question is complicated by the Court s use of the terms majority and effective voting majority. The Court has stated that a minority group must constitute more than 50% of the voting-age population to constitute a majority, 8 but has not clarified how much beyond a numerical majority minority voters must be in a district court in order to constitute an effective voting majority. Lower courts have taken varying approaches to resolve the latter question. ii. Compactness Section 2 cases look not only at geographic factors, including city and county lines, natural boundaries, and the geometric shape of the district, but also at the compactness of the minority population. This latter factor refers to shared political and cultural interests of the affected minority populations. b. The Second and Third Prongs: Racially Polarized Voting The second and third prongs minority political cohesiveness and white bloc voting form the inquiry into racially polarized voting. While satisfying the first prong is necessary for a successful Section 2 claim, racially polarized voting has been described as the linchpin and the true test of vote dilution claims. 9 i. Statistical Methods for Identifying Racially Polarized Voting The secret ballot prevents the tabulation of electoral data at the individual level, thus voting behavior must be inferred from precinct-level electoral data. Three different statistical methods have emerged to examine this type of data and the question of racial polarization: 6 Id. 7 Gingles, 478 U.S. 30, Bartlett v. Strickland, 129 S. Ct (2009). 9 Gingles, 478 U.S. 30, 93 (O Connor, J., concurring). 2

3 (1) Homogenous Precinct Analysis: The tallying of votes cast in precincts overwhelmingly populated by members of one racial or ethnic group. (2) Bivariate Ecological Regression Analysis: Takes into consideration data from all precincts, not just those that are overwhelmingly populated by members of one racial or ethnic group, to estimate voting behavior by race. (3) Ecological Inference: A model that relies on a greater amount of available electoral and census data to estimate voting behavior. Courts have avoided adopting a strict rule for the use of these methods, and often rely on a combination of all three models. ii. What is Minority Political Cohesiveness? In Gingles, the Court seemed to define minority political cohesiveness as when a significant number of minority group members usually vote for the same candidates. 10 Most lower courts have limited their political-cohesiveness inquiries to a study of voting patterns and rely on statistical evidence to demonstrate such patterns. However, a few courts have also considered non-statistical evidence, such as testimony from lay witnesses, to determine cohesion. As in other areas, courts here have reached different conclusions regarding how best to determine cohesiveness. iii. What evidence does a court use to determine racial polarization? Courts also disagree about how best to evaluate the degree of racial polarization in a community. To determine whether a white majority votes sufficiently as a bloc to enable it... usually to defeat the minority s preferred candidate, it is necessary first to answer several preliminary questions, including: (1) How does one determine the minority-preferred candidate?; (2) Should one look at results from exogenous elections?; and (3) How many elections should be analyzed? The answers will often dictate the conclusions. (1) How does one determine the minority-preferred candidate? In identifying the preferred candidate, courts have taken different approaches on the issues of whether a candidate s race is relevant to the determination and, among those courts that have held that any candidate, regardless of race, can be minority-preferred, what evidence should be used to determine minority preference. While many lower courts have found that the minority-preferred candidate can be white, most have not adopted the idea that a candidate s race is completely irrelevant. These courts also differ over how much weight should be given to primary elections and multi-candidate elections, as well as other factors like elections in which only white candidates participate, minority financing of candidates, the extent to which candidates campaigned in minority areas, and the reasons why minority candidates may have not have run in the elections. (2) Should one look at results from exogenous elections? In general, courts have followed a flexible approach to the results from exogenous elections results from races for different offices than those at issue. These courts tend to consider the results of exogenous elections where the available data are otherwise sparse or where the exogenous elections involve minority candidates. 10 Id. at 31. 3

4 (3) How many elections should be analyzed? The number of elections analyzed will vary depending on the circumstances. In Gingles, the Court expressed a preference for data spanning some significant period of time and based its decision on data from three election cycles. 11 The trend seems to turn on whether a court has multiple elections to analyze. If there are multiple recent electoral contests exogenous or endogenous available for analysis, it is less likely that a court will look to the past. If there are fewer recent elections to examine, a court is more likely to resort to such history. iv. What constitutes legally significant racially polarized voting? The Gingles test makes clear that a successful Section 2 claim entails more than mere racially polarized voting the racial polarization must be legally significant. This inquiry involves two questions: (1) Are the reasons for racial polarization relevant?; and (2) What degree of racial bloc voting is legally significant? (1) Are the reasons for racial polarization relevant? Courts, including the Supreme Court, have reached different conclusions as to whether the reasons for racially polarized voting are relevant. Neither side of the issue has ever commanded a majority of the Supreme Court, but most Circuit Court of Appeals seem to consider the reasons for racial polarization, either implicitly or explicitly. These courts typically require plaintiffs to demonstrate that voting patterns have a causal linkage to race when defendants proffer evidence supporting an alternative explanation. (2) What degree of racial bloc voting is legally significant? The law is not clear on what constitutes legally significant bloc voting. The Court in Gingles noted in general, a white bloc vote that normally will defeat the combined strength of minority support plus white crossover votes rises to the level of legally significant white bloc voting. 12 However, the Court declined to specify the point at which racially polarized voting would become legally significant and stated that there is no simple doctrinal test for the existence of legally significant racial bloc voting. 13 Thus, such a determination will turn on a variety of factual circumstances and vary district to district. c. The Fourth Prong : Totality of the Circumstances If all three Gingles conditions are satisfied, then the fourth prong of the Section 2 analysis turns to the totality of the circumstances to determine whether a minority group has less opportunity than other members of the electorate. This analysis looks at both the Senate Report factors and the concept of proportionality. i. Senate Report Factors 11 Gingles, 478 U.S. 30, 57, (appendices). 12 Gingles, 478 U.S. 30, Id. at 58. 4

5 The Senate Judiciary Committee s Report that accompanied the amended Voting Rights Act in 1982 specified several factors that would typically be relevant to the totality of the circumstances in a Section 2 claim. 14 The Senate Report s factors are: (1) The history of voting-related discrimination in the State or political subdivision; (2) The extent to which voting in the elections of the State or political subdivision is racially polarized; (3) The extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority vote requirements, and prohibitions against bullet voting; (4) The exclusion of members of the minority group from candidate slating processes; (5) The extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; (6) The use of overt or subtle racial appeals in political campaigns; and (7) The extent to which members of the minority group have been elected to public office in the jurisdiction. The Report also noted two more factors that may have probative value in some cases: (8) Evidence demonstrating that elected officials are unresponsive to the particularized needs of the members of the minority group; and (9) The policy underlying the State s or the political subdivision s use of the contested practice or structure is tenuous. The Report stated and the Court has re-affirmed on a number of occasions that these factors are neither comprehensive nor exclusive, and that other, non-listed factors may be relevant and considered. Additionally, the Report stated that certain factors will be more pertinent to certain types of Section 2 claims than others. 15 ii. Proportionality Proportionality has become an increasingly important consideration, particularly in Section 2 redistricting cases. 16 For example, if the number of majority-minority districts in a given jurisdiction is at least roughly proportional to the minority s share of the relevant population, then it may be difficult for Section 2 plaintiffs to prove a violation. If, however, all three Gingles factors are satisfied and the proportion of districts that are majority-minority is substantially smaller than the minority s share of the population, a State may be found liable. As with the other factors, several important issues remain unresolved. For example, the question of which population base (e.g., VAP, CVAP) to use discussed in the first Gingles factor is unanswered. Another unresolved issue is whether to measure proportionality regionally or statewide. The Court s approach seems to depend on whether the parties frame their claims in regional terms or statewide terms. 17 But even in a statewide approach, the Court has stated that such an analysis still requires an intensely local appraisal of challenged districts See, Gingles, 478 U.S., at See, Id., at LULAC, 548 U.S., at 426 (citing De Grandy, 512 U.S., at 1000). 17 See, Id. at Id. at 437 (citations omitted). 5

6 B. Vote Denial: Does the practice or procedure deny minorities the opportunity to vote? Vote denial refers to practices that prevent people from voting or having their votes counted. 19 The Court has not yet developed a framework for vote denial claims that is as robust as the approach to vote dilution claims. 20 Still, the question for vote denial claims is whether, under the totality of the circumstances, the practice or procedure erects a significant barrier that disproportionately excludes minority voters from the polls. Courts again rely on the Senate Report factors listed above to make this assessment Tokaji, supra note 3, at See, Janai S. Nelson, The Causal Context of Disparate Vote Denial, 54 B.C. L. Rev. 579 (2013); Tokaji, supra note 3, at Burton v. City of Belle Glade, 178 F.3d 1175, (11th Cir. 1999) (citing Gingles, 478 U.S., at 44). 6