Causation or correlation? The impact of LULAC v. Clements on section 2 lawsuits in the Fifth Circuit.

• Author: Ryan, Elizabeth M.

Under section 2 of the Voting Rights Act, illegal vote dilution exists when an electoral standard, practice, or procedure results in a denial or abridgement of the right to vote on account of race or color. Plaintiffs demonstrate vote dilution by introducing evidence regarding a variety of objective factors, including whether voting in the jurisdiction in question is polarized along racial lines. In 1993, the Fifth Circuit adopted a new standard for section 2 plaintiffs trying to prove racially polarized voting. The Fifth Circuit held that demonstrating a mere correlation between race and vote was insufficient to establish racially polarized voting when some factor other than race might explain an apparent divergence in voter preferences. Instead, plaintiffs must show that race-based considerations caused the polarized voting pattern. Many commentators lamented the decision and predicted that the new standard represented the death knell for section 2 lawsuits in the Fifth Circuit. This Note examines the history of section 2 as amended and concludes that the Fifth Circuit's standard is inconsistent with congressional intent and misconstrues Supreme Court precedent. This Note reviews Fifth Circuit case law applying the new standard and finds that it may be outcome determinative when applied, but that few cases actually turn on the application of the standard, which suggests that its impact has been less pervasive than commentators feared.

INTRODUCTION I. BACKGROUND A. Early Implementation of the VRA B. Reaffirming the "Effects Test" C. Deciphering Gingles--Causation Versus Correlation II. LULAC: THE NEW INTENT REQUIREMENT A. Congressional Intent and the 1982 Amendments B. The Supreme Court's Approach C. LULAC's Shifted Focus III. POST-LULAC: SECTION 2 CLAIMS IN THE FIFTH CIRCUIT A. Refining the LULAC Standard B. Causation in the Courts CONCLUSION APPENDIX INTRODUCTION

In 1993, the Fifth Circuit issued an opinion that reinvented plaintiffs' burden under section 2 of the Voting Rights Act of 1965 ("VRA"). (1) League of United Latin American Citizens v. Clements ("LULAC") (2) answered a question left unresolved by the Supreme Court (3)--whether a vote dilution claimant must show racial bias among voters to be successful--in the affirmative. Vote dilution "is a process whereby election laws or practices, either singly or in concert, combine with systematic bloc voting among an identifiable group to diminish the voting strength of at least one other group." (4) The LULAC court demanded an express inquiry into the causal relationship between the challenged electoral scheme and the alleged vote dilution, (5) Statistical evidence indicating a correlation between race and voting preferences no longer sufficed to prove racial bloc voting if some factor other than race, such as party affiliation, could also explain the divergence. (6) Courts in other circuits soon followed the Fifth Circuit's lead. (7)

Aggressively applied, the LULAC standard had the potential to radically alter section 2 litigation because it inserted an individual-intent element into an analysis that previously focused on effect. The Fifth Circuit required direct evidence revealing a race-based explanation for voters' choices at the polls, rather than general evidence of starkly divergent candidate preferences among white and non-white voters. (8) In short, the LULAC court rejected the notion that a mete correlation between race and vote could demonstrate legally significant racial bloc voting. Instead, the court demanded evidence of the causes behind those voting patterns.

Many commentators responded to the decision with urgent criticism, arguing that the opinion gutted the VRA and imposed an "unbearable burden on plaintiffs to defeat every possibility other than race for denial of their right to vote." (9) The LULAC court's dissenters were more precise, noting that the majority's holding "eviscerated section 2 of the VRA in communities where there is any measurable crossover voting by whites." (10) These critics argued that the Fifth Circuit's definition of racial bloc voting was incompatible with Supreme Court precedent and congressional intent. (11)

When applied, the LULAC standard may be outcome determinative. Fifth Circuit case law reveals that most plaintiffs fail to present sufficient evidence of racially motivated voting patterns to prove racial bloc voting under the LULAC standard, a crucial element of the section 2 vote dilution analysis. (12) As other circuits followed the Fifth Circuit's lead, a similar trend emerged around the country: when courts adopta LULAC-like causation requirement--inquiring into the causes of polarized voting patterns--plaintiffs struggle to make out section 2 claims. (13) Evaluating case law from the Fifth Circuit is instructive because LULAC announced a particularly stringent causation rule with sweeping implications for plaintiffs, although the circuit subsequently refined the standard to impose a narrower, yet still significant, burden. (14) But the relationship between plaintiff losses and the LULAC causation principle is not entirely clear: Are they merely correlated, or does an obligation to prove that racial considerations caused polarized voting fatally impair a vote dilution lawsuit? In the fourteen years following the LULAC court's opinion, (15) plaintiffs in the Fifth Circuit won about half as many section 2 lawsuits as they had between 1982 and 1993, but a variety of factors could reasonably explain this trend. (16) In fact, most plaintiff losses in the years following LULAC did not clearly turn on the question of causation. In many cases, the causation issue was absent entirely from the court's analysis. (17)

Nevertheless, a review of published section 2 opinions from the Fifth Circuit reveals a striking pattern and suggests that a stringent application of the LULAC standard threatens the framework Congress constructed for section 2 lawsuits. (18) In cases where the court expressly addressed causation, plaintiffs won only if the record before the court was silent on causation. (19) In this way, even if it has not changed the calculus of every vote dilution case in the circuit, the LULAC causation standard inflicts a greater burden on plaintiffs than Congress imposed and than the Supreme Court endorsed.

Part I of this Note introduces the VRA and tracks the history and development of racially polarized voting as an element of a section 2 vote dilution claim. Part II argues that the standard enunciated in LULAC is inconsistent with the purpose and intent of the 1982 Amendments to the VRA. It undermines a congressional compromise that struck a balance between competing interests: a vote dilution standard that neither required plaintiffs to produce evidence of discriminatory intent nor amounted to guaranteed proportional representation. Part II also explores Supreme Court case law interpreting the 1982 Amendments and concludes that the LULAC majority misconstrued Supreme Court precedent. Part III reviews the decisions published by the courts in the Fifth Circuit in the years since LULAC, demonstrating that the LULAC standard, when invoked, frustrates minority plaintiffs' success under section 2 by demanding evidence that Congress and the Supreme Court did not require. The total number of cases that turned on the application of this standard, however, is quite small, which suggests that the issue of causation has had a less pervasive effect than some commentators initially anticipated.

1. BACKGROUND

   Congress enacted the VRA (20) "to banish the blight of racial discrimination in voting." (21) Authority for its passage rests in Section 2 of the Fifteenth Amendment. (22) Laws explicitly prohibiting black citizens from voting had been unconstitutional since the states ratified the Fifteenth Amendment in 1870, but state and local governments employed alternate techniques to impede access to the polls, usually by restricting black voter registration. (23) Congress passed the VRA after the Department of Justice concluded that individual enforcement actions to enjoin these discriminatory practices were inadequate. (24)

   A. Early Implementation of the VRA

   The VRA's initial purpose was to eliminate persistent barriers to the minority franchise, but Congress and the Supreme Court understood that "[t]he right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot." (25) In response to successful minority registration efforts, local political jurisdictions adopted an array of dilution schemes to minimize the impact of minority votes. (26) These schemes included reclassifying elected posts as appointed posts, gerrymandering election boundaries, replacing single-member-district systems with at-large elections, and imposing majority runoff requirements where the previously existing plurality system had enabled minority victories. (27) By the 1970s, plaintiffs were using the VRA to successfully challenge these practices. (28)

   During the 1970s, courts presented with vote dilution cases typically considered a series of evidentiary factors to determine whether electoral schemes had "invidious effects." (29) Two key cases (30) established this multifactor framework by articulating what came to be known as the "White-Zimmer standard." (31) Through this inquiry, courts sought to determine whether the "totality of circumstances" (32) indicated that "the political processes leading to nomination and election were not equally open to participation by the group in question--that its members had less opportunity than did other residents in the district to participate in the political process and to elect legislators of their choice. This standard did not require proof of discriminatory intent. (34)

   In 1980, the Supreme Court's decision in City of Mobile v. Bolden (35) provided the impetus for a new phase in this nation's voting rights history, spurring Congress to...