Making sense of Section 2: of biased votes, unconstitutional elections, and common law statutes.

Author:Elmendorf, Christopher S.

This Article develops a fresh account of the meaning and constitutional function of the Voting Rights Act's core provision of nationwide application, Section 2, which has long been portrayed as conceptually opaque, counterproductive in effect, and quite possibly unconstitutional. I argue that Section 2 delegates authority to the courts to develop a common law of racially fair elections, anchored by certain substantive and evidentiary norms, as well as norms about legal change. The central substantive norm is that injuries within the meaning of Section 2 arise only when electoral inequalities owe to race-biased decisionmaking by majority-group actors, whether public or private. As an evidentiary matter, however, plaintiffs need only show a "significant likelihood" of race-biased decisionmaking, rather than proving it more likely than not. So cast (and with a few more details worked out), Section 2 emerges as a constitutionally permissible response to, inter alia, the largely unrecognized problem of election outcomes that are unconstitutional because of the racial basis for the electorate's verdict--a problem that generally cannot be remedied through constitutional litigation. My account of Section 2 has numerous practical implications. Most importantly, it suggests that electoral arrangements that induce or sustain race-biased voting are vulnerable under Section 2, irrespective of their potentially dilutive effect on minority representation. My account also clears the ground for overruling the many Section 2 precedents that rest on the constitutional avoidance canon, and it helps to resolve a number of prominent circuit splits.

INTRODUCTION I. PRECARIOUS SECTION 2 A. The Conceptual Puzzle B. Unintended Consequences C. Constitutional Doubts II. SECTION 2 AS A COMMON LAW STATUTE A. The Return to White: Protocol or Partnership ? 1. The Reasonable Congressperson Perspective 2. Two Constitutional Considerations a. Congruence and Proportionality b. Article III and Political Questions 3. The Puzzle of Participation Claims 4. Wasted Information B. Substantive and Evidentiary Norms 1. The View from the Legislative History a. Two Separate Rights: Dilution and Participation Claims b. Race-Biased Decisionmaking as an Element of Injury (but Not Proof) 2. The View from the Constitution a. The Electorate as a State Actor b. "Political Questions" and Congressional Enforcement 3. Summary C. The Norm of Legal Change: Stare Decisis and Section 2 1. On Election Statutes, Political Questions, and Stare Decisis 2. Disguising Racial Remedies 3. Some Conventional Considerations D. Revisiting the Objections to Section 2 CONCLUSION INTRODUCTION

Section 2 of the Voting Rights Act (VRA) (1) bans electoral structures "which result[]" in members of a class of citizens defined by race or color "hav[ing] less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." (2)

Enacted by Congress in 1982, the Section 2 "results test" (3) was the basis for a hugely successful litigation campaign against multimember districts and at-large elections, arrangements said to "dilute [] minority voting strength." (4) The courts ordered defendant jurisdictions to adopt single-member districts--including some with a majority or supermajority of minority voters--whenever plaintiffs showed (1) that white and minority voters consistently preferred different candidates, (2) that minority candidates were rarely elected, and (3) that the minority community was large enough to control a (hypothetical) single-member district. (5) This enabled minority-preferred candidates to be elected without support from white voters, diversifying legislative bodies that had been lily white.

But Section 2 has fallen into disfavor. Indeed, since the 1986 decision in which the Supreme Court first interpreted the results test, (6) civil rights advocates have suffered an almost unbroken string of defeats in the high court. (7) And, ironically, their one recent victory also speaks to the Court's dissatisfaction with Section 2. (8) The Supreme Court has cabined Section 2 with severe gatekeeping conditions--in effect, a restrictive common law of statutory standing. In vote dilution cases, plaintiffs who cannot show the possibility of establishing a compact, majority-minority, single-member district--holding constant the size of the governing body--will be kicked out of court without any consideration of the remedial arrangements they propose. (9) Further and more drastic interpretive narrowings are likely. (10)

No doubt this is due in part to simple judicial politics: (11) Section 2 establishes a results test; conservatives dislike results tests in anti discrimination law; and the Supreme Court has become more conservative since 1986. But there is more to the story than this. Conservative critics (among others) have voiced three specific objections to Section 2, objections that defenders of the statute have yet to answer while honoring the critics' point of view. (12) Providing those answers is my project here. It is a project that will yield a substantially novel understanding of Section 2, one which enables Section 2 to reach currently untouchable barriers to racial equality, and which clears the ground for overruling the limiting constructions of the statute.

I begin with the critics' objections. Section 2, it is said, provides essentially no guidance about the nature of the harms it targets or directives for its judicial administration. (13) Though the results test notionally protects racial minorities against "vote dilution," neither Congress nor the Supreme Court has been able or willing to explain what vote dilution is, except to say that its presence may be detected through a mysterious judicial inquiry into the "totality of circumstances" bearing on minorities' opportunity "to participate in the political process and to elect representatives of their choice." (14)

The second purported problem with Section 2 is its uncertain relationship to the overarching ambition of the Voting Rights Act: "to hasten the waning of racism in American politics." (15) Section 2 in operation has powerfully encouraged the drawing of supermajority-minority electoral districts, a practice which, some fear, "may balkanize us into competing racial factions[,] ... carry[ing] us further from the goal of a political system in which race no longer matters...." (16) This conjecture is conventional wisdom among conservative Supreme Court Justices. (17)

Finally, the critics say, it is doubtful whether Section 2 as an exercise of congressional enforcement authority under the Fourteenth and Fifteenth Amendments is a "congruen[t] and proportional []"(18) response to constitutional violations. This objection is a corollary of the others; if it is not clear what harms Section 2 guards against, and if Section 2 in practice precipitates racial conflict, then Section 2 is probably not a reasonable congressional remedy for constitutional violations.

Put these pieces together, and Section 2 looks like a ripe target for a conservative Supreme Court. The statute's opacity means that a limiting construction is always available, one whose adoption the constitutional avoidance canon easily justifies, and the premise that majority-minority districts cause racial conflict excuses the well-meaning Justice from any loss of sleep. In an era marked by the election of an African American president, a Voting Rights Act anchored by a vague, discretionary results test and concerned primarily with maintaining safe seats for minority candidates looks increasingly anachronistic. (19) If Section 2 is to avoid a death by a thousand cuts--or outright constitutional invalidation--its supporters must produce a conceptualization of the results test that is intelligible, responsive to racial progress, and discriminating in its bite. (20)

The death of Section 2 would be unimportant if other parts of the VRA could function in its place, but they cannot. Section 5, the VRA's other core provision, reaches only "covered jurisdictions" (states and some localities that once had particularly egregious records of voting discrimination) (21) and guards primarily against backsliding. (22) Section 2, by contrast, applies nationally and prescribes an ideal: equality of opportunity for members of any group defined by race or color "to participate in the political process and to elect representatives of their choice." (23) In the words of the enacting Congress, Section 2 is "the major statutory prohibition of all voting rights discrimination." (24) And if the Supreme Court follows through on its recent threat to invalidate Section 5 on federalism grounds, (25) Section 2 will be all that is left. Conceptualizing Section 2 in a way that answers the conservatives' objections is therefore a matter of some urgency.

Section 2, I will argue, should be understood as a delegation of authority to the courts to develop a common law of racially fair elections, guided by certain substantive and evidentiary norms as well as norms about legal change. (26) Substantively, Section 2 provides independent protection against vote dilution and participation injuries. Dilution injuries arise, on my account, whenever race-biased decisionmaking by conventional state actors or the majority-group electorate (27) results in minorities having less representational opportunity than they otherwise would. (28) Participation injuries occur whenever such biased decisions result in disparate burdens on minority participation in a discrete phase of the electoral process. (A race-biased decision, as I shall use the term, is one that would have been different had the race of persons considered by the decisionmaker been different. A voter makes a race-biased decision when a candidate's race affects his choice. A juror makes a race-biased decision when the race of a defendant or witness affects her...

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