How the Supreme Court Advanced Federalism While Speaking to Race's Role in Electoral Districting: Bartlett v. Strickland, 129 S. Ct. 1231 (2009)

• Publication year: 2021

89 Nebraska L. Rev.131. How the Supreme Court Advanced Federalism While Speaking to Race's Role in Electoral Districting: Bartlett v. Strickland, 129 S. Ct. 1231 (2009)

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Note (fn*)

How the Supreme Court Advanced Federalism While Speaking to Race's Role in Electoral Districting: Bartlett v. Strickland, 129 S. Ct. 1231 (2009)

TABLE OF CONTENTS

I. Introduction.......................................... 132

II. Background........................................... 134
A. The Supreme Court Had Left Unanswered Whether a Minority Population that Could Not Form a Majority-Minority District Had a Vote Dilution Claim Under Section 2 of the Voting Rights Act.........................134
B. In Bartlett v. Strickland the Supreme Court Answered the Question: No........................ 139

III. Analysis.............................................. 145
A. Race Would Be Considered in Districting Decisions Regardless of the Court's Ruling in Bartlett v. Strickland ........................................ 145
B. Bartlett Speaks to Intentional Discrimination in the Districting Processes.............................. 150
C. Bartlett Advanced Federalism by Reducing Congressional Control Over the States' Redistricting Processes ......................................... 152

IV. Conclusion............................................ 157

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I. INTRODUCTION

Voting is one of America's most cherished rights.(fn1) America's constitutional system maintains a connection between the right to vote and political reality by requiring that every ten years, after the federal census has been taken, seats in the House of Representatives be divided among the states according to population.(fn2) Each state is divided into Congressional districts by that state's legislature, subject to the requirements of federal law,(fn3) requirements the Supreme Court's decision in Bartlett v. Strickland(fn4) loosened.

Though Bartlett loosened congressional districting mandates on state legislatures, state power was not the foremost concern in the Justices' minds. Rather, the Court devoted more attention to an issue that has plagued America for centuries: race. In Bartlett, the role of race in the electoral process came before the Court through a debate on crossover districts and their role under the Voting Rights Act. A crossover district is "one in which minority voters make up less than a majority of the voting-age population," yet "at least potentially, [are numerous] enough to elect the candidate of [their] choice with help from voters who are members of the majority and who cross over to support the minority's preferred candidate."(fn5)

Given that the Supreme Court has claimed America desires to become a color blind society,(fn6) it should not be surprising that American

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law would be concerned about the role that race plays in the electoral process.(fn7) The Voting Rights Act (VRA) is a congressional response that shows that concern,(fn8) and the Act is no stranger to the Supreme Court.(fn9) Yet the Court had previously declined to answer an important question: could minority voters sue to invalidate an apportionment plan because it kept them from influencing elections through crossover districts?(fn10)

The Court's answer to that question in Bartlett failed to remove racial considerations from the districting process. Race would have affected the states' districting process no matter which way the Court ruled. Bartlett's main contribution to addressing race in redistricting is its treatment of intentional racial discrimination in the redistricting process. The Court acted to limit the ability of minorities to use race to their advantage in the redistricting process while preventing states from using race against minorities in the redistricting process. In taking that approach, however, the Court gave the states increased freedom from federal law.

This Note will explore how Bartlett affects race and federalism in districting decisions. Specifically, it will argue that while the Court did not remove race from the redistricting process, it did address intentional racial discrimination in that process, and it did so in a way that increased state independence from the federal government. Part II of this Note provides a background discussion of vote dilution claims and shows how previous Supreme Court precedent left an important question unanswered. Part II then provides a summary of how the Supreme Court answered that question in Bartlett v. Strickland. Part III analyzes the Bartlett decision and explains why, while the Court did not remove race from the districting process, it did attempt to address intentional discrimination in the districting process. Part III also shows how the decision advanced federalism by granting the states greater freedom from congressional control.

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II. BACKGROUND

A. The Supreme Court Had Left Unanswered Whether a Minority Population that Could Not Form a Majority-Minority District Had a Vote Dilution Claim Under Section 2 of the Voting Rights Act

when the Voting Rights Act was passed in 1965, Section 2 of the Act stated in its entirety: "No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color."(fn11)

At the time Section 2 was enacted, it was not controversial.(fn12)what proved more controversial than the statute was the Court's interpretation of the statute. The Court determined that Section 2 said nothing about voting rights that the Fifteenth Amendment(fn13) had not already said.(fn14) Under the Court's Fifteenth Amendment jurisprudence, state action "racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose."(fn15) This meant that Section 2 only limited state action in cases of intentional discrimination. Congress overturned the intentional discrimination requirement in 1982 by amending the Act to establish an effects test, so that a defendant was liable, regardless of intent, if his actions had a discriminatory impact.(fn16) Not only did the amendment define violations in terms of discriminatory effects, but it provided the standard by which those effects are judged.(fn17) The current version of the statute states:

(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 Unites States to vote on account of race or color ... .

(b) A violation of subsection (a) of this section 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) of this section 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... . [N]othing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.(fn18)

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If this section is violated by a districting plan, at least one court has said the original drafters of the plan should be given an opportunity to correct their error,(fn19) and if such a correction is not made, courts may fashion relief.(fn20) The plaintiff can propose exactly what form that relief should take,(fn21) but a court considering the plaintiff's plan should weigh the plaintiff's interest in its own remedy with the state's interest in running its own elections.(fn22)

According to the Supreme Court, the 1982 changes to the VRA(fn23)banned "dilution(fn24) of a minority group's voting strength, regardless of the [state] legislature's intent."(fn25) In order to find a violation under Section 2, a court has to decide if the totality of the circumstances show there has been a violation.(fn26) If the vote dilution claim is successful, the government drawing the electoral map can be forced to draw a majority-minority district,(fn27) which is a district where "a minority group composes a numerical, working majority of the voting-age population."(fn28) Before a court considers if Section 2 has been vio-

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lated based on the totality of the circumstances, however, a plaintiff must meet the requirements the Supreme Court enunciated in Thorn-burg v. Gingles.(fn29)

Thornburg v. Gingles(fn30) was the first time the Court had addressed a Section 2 challenge since Congress declared that Section 2 was violated by "discriminatory effect alone" rather than intent to discrimi-nate.(fn31) The issue in the case was whether multimember(fn32) state legislative districts violated Section 2 "by impairing the opportunity of black voters to participate in the political process and to elect representatives of their choice."(fn33) The Court relied heavily on a Senate report on the 1982 amendments which listed numerous factors to take into consideration when deciding if a violation had occurred,(fn34) and the Court ultimately determined that, though a multimember district does not always violate Section 2,(fn35) the North Carolina scheme at issue did.(fn36)

In reaching that...