A proposed standard for amended section 5 of the Voting Rights Act of 1965 as applied to redistricting.

AuthorSullivan, Zachary J.

INTRODUCTION

Many minorities still did not have the right to vote (1) nearly a hundred years after the Reconstruction Amendments (2) guaranteed them this constitutional right and others. (3) The Voting Rights Act of 1965 (4) (VRA) was to the pre-1965 electoral system what the Reconstruction Amendments were to the institution of slavery. And just as the Reconstruction Amendments required the VRA (an amendment of sorts) to give them any real meaning, the VRA has required amendments of its own. (5) Most recently, Congress reauthorized section 5 for the next twenty-five years and amended it through the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (6) (VRARA). This Note is concerned with a subsection added to section 5 through the VRARA; this subsection makes it a violation of section 5 for a proposed redistricting plan (7) to "diminish [ ] the ability" of minorities "to elect their preferred candidates of choice" when compared to the plan currently in effect, i.e., benchmark districting. (8)

To name only a few ways, vote dilution through redistricting can occur through the apportionment of a higher number of people (regardless of race or color) in some districts than in others (9) or through the apportionment of minorities in single and multimember districts. (10) The single or multimember districts may be equal in population, yet the apportionment of minorities among them can amount to vote dilution. "Cracking" denotes dividing up a concentrated minority population among multiple districts to avoid giving minorities the ability to elect their candidates of choice. (11) "Packing" denotes apportioning a large number of minorities into a single district to avoid giving them the ability to elect their candidates of choice in other districts. (12) "Stacking" denotes combining a large number of minorities with an even larger number of whites into a single district, so that the minorities do not have the ability to elect their candidates of choice. (13)

Section 5 applies only to "covered jurisdictions," which are expressly listed in the statute. (14) Section 5 requires covered jurisdictions to receive preclearance from the U.S. Department of Justice (DOJ) or a declaratory judgment from the U.S. District Court for the District of Columbia (15) before making a change to "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" (16) (covered change). Preclearance is granted if the covered jurisdiction proves that the covered change does not have the purpose or effect (17) of "denying or abridging the right to vote on account of race or color" (18) as compared to the status quo. (19) In other words, preclearance is granted if the covered change does not dilute the vote as compared to the status quo. (20) The VRARA prohibits a covered change from "diminishing the ability" of minorities "to elect their preferred candidates of choice." Diluting the vote as compared to the status quo has long been a prohibited effect, but the added subsection makes clear that a nondiluted vote includes the ability to elect a candidate of choice. Congress added the subsection to overrule the Supreme Court's holding in Georgia v. Ashcroft, (21) which moved the focus of a prohibited effect away from the ability to elect, and permitted the trading of descriptive representation of minorities for substantive representation. (22) This contradicted the DOJ's decades-old standard for a prohibited effect (23) based on the interpretation set forth in Beer v. United States. (24)

Part I of this Note examines the standard for a prohibited effect before the VRARA. Part II addresses the ability-to-elect standard for determining whether a proposed redistricting plan "diminish [es] the ability" of minorities "to elect their preferred candidates of choice." This Part analyzes the standard provided in the Senate Judiciary Committee's Report (25) and briefly discusses the House Judiciary Committee's Report, (26) which does not include a standard. In addition, this Part analyzes both the standard used by the DOJ prior to Ashcroft and the relatively extreme standard proposed by Nathaniel Persily. (27)

This Note proposes a standard that would require a proposed redistricting plan to at least maintain the number of districts in which it is more likely than not (28) that minorities will elect their preferred candidates of choice (ability-to-elect districts). (29) There are three noteworthy qualities of this proposed standard: First, if this is the only requirement, then it implies that the proposed standard focuses on the redistricting plan as a whole, not a district standing alone. Second, the proposed standard protects "coalitional districts"--districts in which minorities constitute the minority, but where it is still more likely than not minorities will elect their preferred candidates of choice--with white crossover to or coalition of other minorities with minorities in voting. (30) Third, the proposed standard permits the trading of "safe districts"--ability-to-elect districts in which it is "highly likely" that minorities will elect their preferred candidates of choice, without the assistance of whites and other minority groups--for coalitional districts because they are both ability-to-elect districts. (31)

The proposed standard differs from the DOJ's in its definition of an ability-to-elect district. This Note conceives of an ability-to-elect district as one in which it is more likely than not that minorities will elect their preferred candidates of choice. In contrast, the DOJ standard requires a higher degree of likelihood in order for a district to be an "opportunity district," or ability-to-elect district. Also, the proposed standard permits the trading of safe districts for coalitional districts, unlike the DOJ's standard. The proposed standard differs from the Senate Report's in its protection of coalitional districts. Unlike the proposed standard, the Senate Report's standard focuses on a district standing alone.

The proposed standard draws from a discussion in Ashcroft, in which the Court described two proposed redistricting plans that would not reduce minorities' ability to elect their candidates of choice. Most notably, the four dissenting Justices endorsed the majority's dictum on the ability to elect. To the extent that the interpretation of section 5 in Ashcroft was based on constitutional avoidance, (32) the proposed standard may avoid constitutional difficulty from the Equal Protection Clause of the Fourteenth Amendment or enforcement clauses of the Fourteenth and Fifteenth Amendments. (33) While the Supreme Court recently avoided answering the question of whether preclearance is constitutional (regardless of the standard employed) in Northwest Austin Municipal Utility District Number One v. Holder, (34) Ashcroft indicates that the Court is not hesitant to take a close look at the standard for section 5.

  1. FROM BEER TO ASHCROFT: THE PRE-VRARA STANDARD FOR PROHIBITED EFFECT

    Section 5 originally had the relatively modest aim of ensuring that covered jurisdictions did not find a new way to deny the vote to minorities after section 4 temporarily suspended literacy tests, the primary way states had been denying the vote. (35) Section 5 was not aimed at vote dilution, but at vote denial. (36) Not only did section 5 have a modest aim, but it also went relatively unused by the DOJ. "Far from moving forcefully to insure that states and localities demonstrate that they were not trying to undercut federal supervision of voter registration and the suspension of literacy tests by enacting new laws, the Johnson Administration largely left voter registration, as well as law suits, to civil rights organizations." (37) However, once the Court interpreted the Constitution as prohibiting vote dilution, it was not long before vote dilution became relevant to the standard for a prohibited effect. (38)

    Beer v. United States reaffirmed that vote dilution was relevant to the standard for a prohibited effect. The harder issue--and the issue for which Beer has become a landmark--was in setting the exact standard for section 5 if vote dilution was relevant. The Court held that the standard for a prohibited effect was "retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." (39) While the Court did not explicitly address what amounted to the "effective exercise of the electoral franchise" (nondiluted vote), it implied that it was the ability to elect preferred representatives. (40) Thus, the Court's standard for a prohibited effect in the context of redistricting could have been written as the following: "A proposed redistricting plan's reduction of the ability of minorities to elect their preferred representatives as compared with the benchmark districting." The VRARA would codify a variation of this standard thirty years later in response to Georgia v. Ashcroft. (41)

    Subsequent amendments to the VRA (42) did not further define the standard for a prohibited effect, leaving Beer's standard unchanged. (43) Congress could have addressed whether a proposed redistricting plan's reduction of the ability of minorities to elect their preferred representatives violates section 5, as Beer implied. But it chose not to. Likewise, the district court and Supreme Court took few opportunities to clarify the Beer standard (44) until Ashcroft. The DOJ handled preclearance of most proposed redistricting plans. (45) Following Beer and consistent with it, the DOJ's standard was as follows:

    A proposed plan is retrogressive under the Section 5 "effect" prong if its "net" effect would be to reduce minority voters'[ ] "effective exercise of the electoral franchise" when compared to the benchmark plan. The effective exercise of the electoral franchise usually is assessed in redistricting...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT