UUnniivveerrssiittyy ooff CChhiiccaaggoo LLaaww SScchhooooll CChhiiccaaggoo UUnnbboouunndd Public Law and Legal Theory Working Papers Working Papers 2015 SSuueedd IIff YYoouu DDoo,, SSuueedd IIff YYoouu DDoonn’’tt:: SSeeccttiioonn 22 ooff tthhee VVoottiinngg RRiigghhttss AAcctt aass aa DDeeffeennssee ttoo RRaaccee--CCoonnsscciioouuss DDiissttrriiccttiinngg Caroline A. Wong Follow this and additional works at: https://chicagounbound.uchicago.edu/public_law_and_legal_theory Part of the Law Commons Chicago Unbound includes both works in progress and final versions of articles. Please be aware that a more recent version of this article may be available on Chicago Unbound, SSRN or elsewhere. RReeccoommmmeennddeedd CCiittaattiioonn Caroline Wong, "Sued If You Do, Sued If You Don’t: Section 2 of the Voting Rights Act as a Defense to Race-Conscious Districting" (University of Chicago Public Law & Legal Theory Working Paper No. 535, 2015). This Working Paper is brought to you for free and open access by the Working Papers at Chicago Unbound. It has been accepted for inclusion in Public Law and Legal Theory Working Papers by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. C H I C A G O PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 535 SUED IF YOU DO, SUED IF YOU DON’T: SECTION 2 OF THE VOTING RIGHTS ACT AS A DEFENSE TO RACE-CONSCIOUS DISTRICTING Caroline A. Wong THE LAW SCHOOL THE UNIVERSITY OF CHICAGO April 2015 This paper can be downloaded without charge at the Public Law and Legal Theory Working Paper Series: http://www.law.uchicago.edu/academics/publiclaw/index.html and The Social Science Research Network Electronic Paper Collection. Electronic copy available at: http://ssrn.com/abstract=2599346 82 UNIVERSITY OF CHICAGO LAW REVIEW __ (FORTHCOMING) 6/30/2015 7:03 PM Sued If You Do, Sued If You Don’t: Section 2 of the Voting Rights Act as a Defense to Race-Conscious Districting Caroline A. Wong † INTRODUCTION Suppose that you work on a state legislative committee charged with drafting maps of your state’s electoral districts. Recently, constituents have contacted their representatives in the legislature to complain that the current district lines signifi- cantly dilute the influence of minority votes in some areas of the state. The constituents demand a change and warn that, in the event that no change is made, they will bring a lawsuit against the state under § 2 of the Voting Rights Act of 1965.1 After stud- ying the relevant law, your committee agrees that the current district plan may contravene § 2, which prohibits states from adopting plans that result in minority-vote dilution.2 To avoid litigation, your committee decides to draft a new district plan to remedy the § 2 violation. In choosing a strategy for drafting the remedial plan, your committee decides that it must account for racial demographics. After all, a strictly race-neutral methodol- ogy might fail to effectively correct the § 2 violation, or it might inadvertently give rise to a separate § 2 violation in another part of the state.3 But pursuing a race-conscious approach may be no better than jumping out of the frying pan and into the fire.4 The prob- † BM 2012, Indiana University–Bloomington; JD Candidate 2016, The University of Chicago Law School. 1 Pub L No 89-110, 79 Stat 437, 437, codified as amended at 52 USCA § 10301 (West 2014). 2 52 USCA § 10301. See also Thornburg v Gingles, 478 US 30, 46–51 (1986). 3 Section 2 liability attaches whenever a state’s district plan results in vote dilu- tion, regardless of whether state actors intended to dilute votes or consciously considered racial demographics when drafting the plan. See Gingles, 478 US at 43–44. 4 Consider Laurentius Abstemius, The Fishes and the Frying Pan, in Roger L’Estrange, ed, Fables of Aesop and Other Eminent Mythologists: With Morals and Re- flexions 289 (printed for Sare, et al, 5th ed 1708) (“A Cook was Frying a Dish of Live Fish, and so soon as ever they felt the Heat of the Pan. There’s no Enduring of This, cry’d 101 Electronic copy available at: http://ssrn.com/abstract=2599346 82 UNIVERSITY OF CHICAGO LAW REVIEW __ (FORTHCOMING) 6/30/2015 7:03 PM 102 The University of Chicago Law Review [82:NNN lem is that while race-conscious remedial districting may avert litigation over a § 2 violation, it simultaneously opens the door to a lawsuit in which the remedial plan may be challenged as an unconstitutional racial classification under the Fourteenth Amendment’s Equal Protection Clause.5 A state that finds itself in potential violation of § 2 is thus placed in a seemingly “impos- sible position.”6 Whether it decides to forgo or pursue race- conscious remedial districting, the state leaves itself exposed to liability for violating either § 2 of the Voting Rights Act or the Equal Protection Clause, respectively. In an effort to resolve this predicament, a few states have responded to equal protection racial gerrymandering challenges by arguing that compliance with § 2 constitutes an affirmative defense against claims of race-conscious districting. Whether such a § 2 defense is legally cognizable, however, is a question that remains unresolved. Both times that the issue of the de- fense’s viability has been raised before the United States Su- preme Court, the justices have expressly declined to address it.7 As a result, state governments—as well as courts8 and district- ing-litigation plaintiffs9—have been left without answers to crit- ical questions about the extent to which § 2 requires, justifies, or forbids the incorporation of race-conscious principles in the de- sign of electoral districts. Thus, on the question whether § 2 ne- cessitates or permits race-conscious districting, Solicitor General one, and so they all Leapt into the Fire; and instead of Mending the Matter, they were Worse now than Before.”). 5 US Const Amend XIV, § 2. See also, for example, Miller v Johnson, 515 US 900, 917, 928 (1995) (striking down a district plan under the Equal Protection Clause on the grounds that race had been the predominant factor motivating the plan’s design). 6 League of United Latin American Citizens v Perry, 548 US 399, 518 (2006) (Scal- ia concurring in the judgment in part and dissenting in part) (characterizing the dilem- ma that a state faces when it must choose between compliance with the Voting Rights Act and compliance with the Equal Protection Clause). 7 See Shaw v Hunt, 517 US 899, 915 (1996); Bush v Vera, 517 US 952, 977 (1996) (O’Connor) (plurality). 8 When a court strikes down a state’s district plan, it may become responsible for redrawing that state’s district lines by judicial order. In fulfilling that responsibility, courts have a direct interest in knowing the extent to which § 2 requires or permits race- conscious districting, because courts too must avoid redistricting in a manner that vio- lates the Voting Rights Act or the Equal Protection Clause. See Abrams v Johnson, 521 US 74, 79 (1997), citing Upham v Seamon, 456 US 37, 43 (1982). 9 Districting-litigation plaintiffs sometimes propose remedial district plans for adoption by court order; thus, they also have an interest in the resolution of these issues. See, for example, Georgia State Conference of the NAACP v Fayette County Board of Commissioners, 950 F Supp 2d 1294, 1303 (ND Ga 2013) (questioning the extent to which the plaintiffs’ proposed remedial district plan could permissibly account for race). 82 UNIVERSITY OF CHICAGO LAW REVIEW __ (FORTHCOMING) 6/30/2015 7:03 PM 2015] Sued If You Do, Sued If You Don’t 103 Andrew Brasher spoke for many when he confessed during oral argument in a recent racial gerrymandering case: “I really hon- estly do not know how Section 2 would necessarily apply.”10 Given the frequency of districting litigation,11 questions about the proper application of § 2 demand resolution. This Comment endeavors to answer those questions. Part I canvasses the legislative history of § 2 and overviews the doctrinal frame- work governing federal claims of vote dilution and racial gerry- mandering. Part II examines the various attempts that states have made to raise the § 2 defense in response to racial gerry- mandering and state constitutional claims. Finally, Part III ar- gues that § 2 indeed offers a legally cognizable defense against claims of racial districting, for doctrinal and normative reasons. It then envisages how courts could apply the § 2 defense in a way that would benefit states raising the defense in good faith but filter out states merely seeking to evade liability for unjusti- fiable race-based action. In light of the defense’s application in the contexts of vote dilution and racial gerrymandering, Part III also explains that states might avoid violations of both § 2 and the Equal Protection Clause by creating racially integrated coa- litional districts. I. SECTION 2 OF THE VOTING RIGHTS ACT AND RACIAL- DISTRICTING CLAIMS Hailed on the day of its enactment as “a triumph for free- dom,”12 the Voting Rights Act of 196513 has indelibly remolded the election-law landscape over the past five decades. Section 2 of the Act, aimed at dismantling racially discriminatory state voting practices, has become the font of a robust and complex body of law governing electoral districting. Proceeding in two 10 Transcript of Oral Argument, Alabama Legislative Black Caucus v Alabama, Docket No 13-895, *60 (US Nov 12, 2014) (available on Westlaw at 2014 WL 5844290). 11 As of January 1, 2015, redistricting in the wake of the 2010 US Census has prompted districting litigation in forty-two of the fifty states, including racial-districting litigation in Alabama, Arkansas, California, Florida, Illinois, Louisiana, Maryland, Michigan, New Mexico, New York, North Carolina, South Carolina, Texas, Virginia, and Wisconsin. For a database collecting information about this litigation, see generally Liti- gation in the 2010 Cycle (Loyola Law School–Los Angeles), archived at http://perma.cc/YJ4S-RYXV (tracking the proceedings of districting litigation nation- wide). 12 President Lyndon B. Johnson, Remarks in the Capitol Rotunda at the Signing of the Voting Rights Act, 1965 Pub Papers 840, 840. 13 Pub L No 89-110, 79 Stat 437, codified as amended at 52 USCA § 10101 et seq (West 2014). 82 UNIVERSITY OF CHICAGO LAW REVIEW __ (FORTHCOMING) 6/30/2015 7:03 PM 104 The University of Chicago Law Review [82:NNN sections, this Part begins by situating the Voting Rights Act within the context of the civil rights movement and overviewing the legislative history of § 2. It then surveys the development of case law concerning federal racial-districting claims under both § 2 and the Fourteenth Amendment’s Equal Protection Clause.14 A. The Background and Legislative History of § 2 In the United States, voting rights have often been closely intertwined with issues of race. The right to vote free of race- based restrictions became constitutionalized in 1870 by the Fif- teenth Amendment,15 the ratification of which was driven in part by the need to protect African Americans’ voting rights in the wake of the Civil War.16 Later voting-rights legislation was enacted concurrently with the development of the African Amer- ican civil rights movement in the 1950s and 1960s.17 The Voting Rights Act of 1965 itself arose directly from the advocacy efforts of civil rights activists18 and aimed to dislodge state voting prac- tices that tended to disenfranchise minority voters, such as lit- eracy tests and poll taxes.19 Section 2 is the centerpiece of the Voting Rights Act. In its originally enacted version, § 2 prohibited states from imposing any “standard, practice or procedure . . . to deny or abridge the right of any citizen of the United States to vote on account of race or color.”20 This language closely tracked that of the Fif- teenth Amendment, which broadly decrees that “[t]he right of citizens of the United States to vote shall not be denied or 14 Throughout this Comment, the term “racial-districting claims” is used to refer broadly to all claims that challenge districts as racially discriminatory, whether prem- ised on § 2 of the Voting Rights Act, the Equal Protection Clause, or both. 15 US Const Amend XV, § 1. 16 See Emma C. Jordan, The Future of the Fifteenth Amendment, 28 Howard L J 541, 546–48 (1985). 17 See Civil Rights Act of 1957 § 131, Pub L No 85-315, 71 Stat 634, 637–38, codi- fied as amended at 52 USCA § 10101 et seq (West 2014); Civil Rights Act of 1960 § 601, Pub L No 86-449, 74 Stat 86, 90–92, codified as amended at 52 USCA § 10101 et seq (West 2014). For a comprehensive historical account of the African American civil rights movement, see generally Peter B. Levy, The Civil Rights Movement (Greenwood 1998). 18 See Gary May, Bending toward Justice: The Voting Rights Act and the Trans- formation of American Democracy 48, 148 (Basic Books 2013). 19 See Adam B. Cox and Thomas J. Miles, Judicial Ideology and the Transfor- mation of Voting Rights Jurisprudence, 75 U Chi L Rev 1493, 1496–98 (2008). 20 Voting Rights Act of 1965 § 2, 79 Stat at 437. 82 UNIVERSITY OF CHICAGO LAW REVIEW __ (FORTHCOMING) 6/30/2015 7:03 PM 2015] Sued If You Do, Sued If You Don’t 105 abridged by the United States or by any State on account of race, color, or previous condition of servitude.”21 In the first two decades after its enactment, disenfranchised plaintiffs rarely relied on § 2.22 Instead, voting-rights cases dur- ing that period were almost always brought under the Recon- struction Amendments or under alternative provisions of the Voting Rights Act.23 But the tides began to turn in 1980 when the Supreme Court heard its first § 2 vote dilution case—City of Mobile, Alabama v Bolden24—and issued a decision that threat- ened to severely restrain the potential strength of § 2’s protec- tions. In Bolden, a plurality of the justices held that because § 2’s language “no more than elaborate[d] upon that of the Fif- teenth Amendment,”25 a plaintiff could establish a § 2 violation only by proving that a state had adopted a given voting practice with an intent to discriminate on the basis of race.26 Requiring proof of such intent placed an enormous burden on plaintiffs seeking to challenge voting practices as racially discriminatory, and this aspect of Bolden accordingly garnered “a firestorm of criticism and protest in the legal community.”27 In reaction to Bolden, Congress amended § 2 to prohibit the use of any “standard, practice, or procedure . . . which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race,” thereby abrogating Bolden’s intent requirement and bolstering the robustness of § 2’s protec- tions.28 Congress’s post-Bolden amendments further specify that state practices may not cause racial minorities to have “less op- portunity than other members of the electorate to participate in the political process and to elect representatives of their choice,” and the amendments also instruct courts to employ a totality-of- 21 US Const Amend XV, § 1. 22 See Cox and Miles, 75 U Chi L Rev at 1497 (cited in note 19). 23 See id. See also, for example, Allen v State Board of Elections, 393 US 544, 553– 54 (1969) (involving voting-rights claims brought under the Fourteenth Amendment and § 5 of the Voting Rights Act). 24 446 US 55 (1980). 25 Id at 60 (Stewart) (plurality). 26 Id at 60–62 (Stewart) (plurality). 27 Frank R. Parker, Racial Gerrymandering and Legislative Reapportionment, in Chandler Davidson, ed, Minority Vote Dilution 85, 100–01 (Howard 1989). See also Vot- ing Rights Act Extension, S Rep No 97-417, 97th Cong, 2d Sess 16 (1982), reprinted in 1982 USCCAN 177, 196 (denouncing the Court’s decision in Bolden for “plac[ing] an un- acceptably difficult burden on plaintiffs”). 28 Act of 1982 § 3, Pub L No 97-205, 96 Stat 131, 134, codified at 52 USCA § 10301 (West 2014) (emphasis added). 82 UNIVERSITY OF CHICAGO LAW REVIEW __ (FORTHCOMING) 6/30/2015 7:03 PM 106 The University of Chicago Law Review [82:NNN the-circumstances test to ascertain whether a given state prac- tice violates § 2.29 As demonstrated in the next Section, racial- districting litigation under § 2 has proliferated widely since the addition of these amendments. B. Bringing a Racial-Districting Claim: The Prima Facie Case Under federal law, a plaintiff has two avenues for challeng- ing a state’s district plan as racially discriminatory. First, she can bring suit under § 2 of the Voting Rights Act and allege that the plan results in the unlawful dilution of minority votes.30 Se- cond, she can bring suit under the Fourteenth Amendment’s Equal Protection Clause and allege that the plan is an unconsti- tutional gerrymander designed predominantly on the basis of racial considerations.31 The legal regimes governing each of the- se claims are “analytically distinct”32 and are discussed in turn in this Section. 1. Vote dilution claims under § 2. To establish a prima facie case of minority-vote dilution un- der § 2, a plaintiff must show that: (1) the relevant minority group is “sufficiently large and geographically compact” to feasi- bly constitute a numerical majority of the citizen voting-age population in a single-member legislative district; (2) the minor- ity group is “politically cohesive”; and (3) the majority group in the relevant geographic region “votes sufficiently as a bloc” to defeat the minority group’s preferred political candidates.33 29 Act of 1982 § 3, 96 Stat at 134. The amendments also clarify, however, that § 2 does not require states to ensure that minority candidates are elected in numbers pro- portional to their states’ minority populations. Act of 1982 § 3, 96 Stat at 134. 30 See, for example, Thornburg v Gingles, 478 US 30, 34–35 (1986). 31 See, for example, Hunt v Cromartie, 526 US 541, 543 (1999). In theory, plaintiffs also have the option of using the Fourteenth Amendment as the basis for constitutional vote dilution claims. See Rogers v Lodge, 458 US 613, 617, 627 (1982) (affirming the dis- trict court’s finding that a challenged district plan diluted minority votes in violation of the Fourteenth Amendment). Such claims, however, have historically been unsuccessful and have largely fallen out of fashion since 1982, when Congress broadened the scope of § 2 in response to Bolden. See, for example, White v Regester, 412 US 755, 763 (1973) (re- jecting the plaintiffs’ Fourteenth Amendment vote dilution claim); Whitcomb v Davis, 403 US 124, 157–60 (1971) (same). 32 Shaw v Reno, 509 US 630, 652 (1993) (“Shaw I”). 33 Gingles, 478 US at 50–51, 63. See also Bartlett v Strickland, 556 US 1, 14, 18–19 (2009) (Kennedy) (plurality) (clarifying that a “numerical majority” is defined as 50 per- cent or more of the citizen voting-age population in the relevant geographic area for pur- poses of the first of these three requirements). 82 UNIVERSITY OF CHICAGO LAW REVIEW __ (FORTHCOMING) 6/30/2015 7:03 PM 2015] Sued If You Do, Sued If You Don’t 107 Nicknamed “the Gingles preconditions” after the seminal case Thornburg v Gingles,34 these three evidentiary requirements speak to causation; without them, minority voters cannot show that a challenged district plan “result[ed] in . . . abridgement”35 of their right to vote within the meaning of § 2.36 After establishing the Gingles preconditions, a plaintiff must also demonstrate that the totality of the circumstances substantiates the alleged dilutive effects of the challenged plan.37 In weighing the totality of the circumstances, courts typi- cally consider the seven factors set forth by the Senate Judiciary Committee in a report accompanying the post-Bolden amend- ments to § 2: (1) the history of discriminatory voting-related practices in the relevant state; (2) whether voting in the state is “racially polarized”; (3) whether the state has used “voting prac- tices or procedures that may enhance the opportunity for dis- crimination against the minority group”; (4) whether minorities have been denied access to “candidate slating process[es]”; (5) whether minorities “bear the effects of [past] discrimination in such areas as education, employment, and health”; (6) whether political campaigns in the state make “racial ap- peals”; and (7) whether minorities “have been elected to public office in the jurisdiction.”38 The Senate report also lists two other factors of secondary significance: whether elected officials in the state tend to be unresponsive to “the particularized needs” of minority groups, and whether the policies offered to justify the state’s allegedly discriminatory voting practices are “tenuous.”39 34 478 US 30 (1986). 35 52 USCA § 10301(a). 36 See Gingles, 478 US at 50 n 17 (“Unless minority voters possess the potential to elect representatives in the absence of the challenged structure of practice, they cannot claim to have been injured by that structure or practice.”) (emphasis omitted). 37 See Johnson v De Grandy, 512 US 997, 1010–12 (1994); Voinovich v Quilter, 507 US 146, 157 (1993). See also 52 USCA § 10301(b) (providing that a § 2 violation is estab- lished if it is shown by a “totality of the circumstances” that “members of a [racial] class of citizens . . . have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice”). 38 Gingles, 478 US at 36–37, quoting S Rep No 97-417, 97th Cong, 2d Sess at 28–29 (cited in note 27). 39 Gingles, 478 US at 37, quoting S Rep No 97-417, 97th Cong, 2d Sess at 29 (cited in note 27). In sum, the totality-of-the-circumstances test grants judges significant ana- lytical flexibility and has the potential to vary widely in application from court to court. One empirical study indicates that the precise manner in which a judge assesses the to- tality of the circumstances in this context may depend heavily on his or her individual political ideology or race. See Cox and Miles, 75 U Chi L Rev at 1519–24, 1535–36 (cited in note 19). 82 UNIVERSITY OF CHICAGO LAW REVIEW __ (FORTHCOMING) 6/30/2015 7:03 PM 108 The University of Chicago Law Review [82:NNN Several different legal theories are available to a plaintiff seeking to bring a vote dilution claim. In particular, three dis- tinct theories of vote dilution have emerged from the case law: vote subsumption, vote fragmentation, and vote packing. Dis- cussed in turn below, each theory of vote dilution has been at is- sue in at least one case arising before the Supreme Court in re- cent decades. a) Vote subsumption. One of the earliest forms of vote di- lution recognized by the Supreme Court, vote subsumption oc- curs when a state draws a large multimember legislative district as an alternative to smaller single-member districts in a way that ensures that minority voters in the relevant geographic ar- ea will remain a politically weak demographic.40 The designation of an electoral district as “multimember” or “single-member” re- fers to the number of representatives that are elected at large from within the district.41 In particular, a multimember district employs a system by which several members of the legislature are elected simultaneously, whereas a single-member district involves a voting scheme in which only one legislative repre- sentative is elected from the district.42 Accordingly, a multi- member district can engender minority-vote dilution whenever it is large enough to overwhelm the voting preferences of small minority communities that would have otherwise held politically influential majorities or pluralities in a system of single-member districts. Gingles itself involved allegations of vote subsumption. The plaintiffs challenged six multimember state-legislative districts in North Carolina as precipitating this type of vote dilution in violation of § 2.43 The plaintiffs argued that the state’s “decision to employ multimember, rather than single-member, districts in the contested jurisdictions dilute[d] [African American] votes by submerging them in a white majority, thus impairing [the plain- tiffs’] ability to elect representatives of their choice.”44 After for- mulating the three preconditions that would thereafter govern all § 2 vote dilution claims, the Court reviewed the district court’s factual findings for clear error and concluded that the 40 See Gingles, 478 US at 46. 41 See John F. Banzhaf III, Multi-member Electoral Districts—Do They Violate the “One Man, One Vote” Principle, 75 Yale L J 1309, 1309 (1966). 42 See Douglas J. Amy, Behind the Ballot Box: A Citizen’s Guide to Voting Systems 67–68 (Praeger 2000). 43 Gingles, 478 US at 34–35. 44 Id at 46.