The Race-Blind Future of Voting Rights.

• Author: Chen, Jowei

INTRODUCTION

The modern era of voting rights may soon be coming to an end. For more than thirty years, courts have agreed on the baseline for comparison in a racial vote-dilution case. A minority group bringing such a challenge--asserting that its electoral influence has been unlawfully diluted by a set of district lines--must compare its existing representation to the benchmark of proportional representation. If the group is represented disproportionally poorly, in that the share of districts it controls is smaller than its fraction of the population, the group's legal claim is significantly bolstered. Conversely, if the group already enjoys close to (or more than) proportional representation, its claim all but collapses. (1)

Conservative Justices on the Supreme Court, however, have never been comfortable with this approach. In their view, the emphasis on whether minority voters control a proportional share of districts is untrue to the text of section 2 of the Voting Rights Act (VRA), which disclaims any "right to have members of a protected class elected in numbers equal to their proportion in the population." (2) Even worse, according to these critics, the proportionality baseline overly racializes the redistricting process. It encourages jurisdictions to draw many districts for racial reasons, thus conveying the message that representation is primarily race based and aggravating racial cleavages in American politics. (3) As Chief Justice Roberts decried in a 2006 case, "It is a sordid business, this divvying us up by race." (4)

To date, the Court's conservatives have been unable to stop the divvying. But thanks to the recent ascensions of Justices Barrett, Gorsuch, and Kavanaugh, their luck may be about to turn. There may now be a solid majority for rethinking vote-dilution law and sharply limiting the scope of section 2. If such reform were to occur, it could plausibly entail the replacement of proportionality with a race-blind baseline, asldng how many districts minority voters would control if the lines were drawn without any consideration of race. (5) The case for liability would then be strongest if a minority group is underrepresented compared to the outcome of a nonracial redistricting process. The case would be much weaker, though, if the group already controls as many districts as would be expected given the application of nonracial mapmaking criteria.

This substitution of a race-blind baseline for a proportional one was proposed most notably by Judge Easterbrook in the 2008 case of Gonzalez v. City of Aurora. (6) Posing the question, "Diluted relative to what benchmark?," the conservative jurist answered, " [T] he outcome of a race-neutral process in which all districts are compact." (7) He elaborated that "computers can use census data" to "generate a hundred or a thousand different maps." (8) If these randomly created maps "look something like the actual map" in their racial characteristics, then "we could confidently conclude that [the actual] map did not dilute the effectiveness of the [minority] vote." (9) But if the actual map has fewer minority-controlled districts than most of the simulated maps, then "a court might sensibly conclude that [the jurisdiction] had diluted the [minority] vote." (10)

Judge Easterbrook's suggestion has been echoed by right-wing activists (11) and flagged by legal (12) and political-science (13) scholars. It also dovetails with the conservative critique of the section 2 status quo, being both more faithful to the statutory text (since it eschews proportionality) and less race conscious (since a race-blind baseline is, well, race blind). And just a few years after the Supreme Court eviscerated the VRA's other key provision in Shelby County v. Holder, (14) the possibility of radical change in the law of vote dilution cannot be discounted. Yet until now, no one has taken Judge Easterbrook's idea seriously. No one has comprehensively analyzed how minority representation could be affected by the move from a proportional to a race-blind baseline. Nor has anyone studied the potential partisan implications of this shift: how the major parties could be impacted if the lines were drawn solely on nonracial grounds.

In this Article, then, we investigate these issues for the first time. We do so using the method that Judge Easterbrook outlined in Gonzalez: the random generation of large numbers of district maps by a computer algorithm, based exclusively on nonracial criteria. This technique was still in its infancy when Judge Easterbrook referred to it in 2008. In the ensuing decade, however, it has ripened to full maturity. Political scientists, mathematicians, and computer scientists have published dozens of papers introducing redistricting algorithms and applying them to various problems. (15) Courts have also admitted expert testimony about randomly generated district maps--from one of us in more than ten cases (16)--and relied heavily on this evidence in their opinions. (17) Almost all of this litigation has examined whether partisanship accounts for the differences between enacted plans and the arrays of simulated maps. No lawsuit (and no academic article) has systematically explored the effects of race-blind (rather than party-blind) redistricting. Nor has the legal literature yet employed mapmaking algorithms at anything like this Article's scale, though they are the field's most important development in recent memory.

We include in our study almost all states with sizeable minority populations: the ones for which section 2's requirements are most relevant. We also conduct our analysis at the State-house level because state-house districts are more numerous than their congressional counterparts, enabling a more fine-grained inquiry. For each state we consider, we randomly generate one thousand state-house maps. These maps match or beat each state's enacted plan in terms of traditional criteria such as population equality, compactness, and respect for political subdivisions. But unlike each enacted plan, these maps completely ignore race. Having produced these sets of comparators, we then bring race back into the picture. In the most extensive application to date of ecological inference, we estimate the voting behavior of minority and nonminority citizens, precinct by precinct, in each state. We use this data to determine the numbers of minority opportunity districts in the enacted plans as well as the simulated maps and then to compare these volumes. We define an opportunity district as one where minority voters are able to elect their candidate of choice because they outnumber nonminority voters within their preferred party, which in turn is the district's majority party.

We find that most--though not all--enacted state-house plans overrepresent minority voters relative to the race-blind baseline. For example, numerous plans in the Deep South include substantially more African American opportunity districts than would typically emerge from a nonracial redistricting process, while a few plans in the Border South include fewer such districts. Similarly, several western states feature extra Hispanic opportunity districts compared to the race-blind baseline, while only one western state underrepresents Hispanic voters. Perhaps our most interesting result, though, has to do with the makeup (not the number) of the opportunity districts in the randomly generated maps. In most cases, these districts have smaller minority populations than the opportunity districts in the enacted plans (albeit still large enough to elect minority-preferred candidates). In other words, the enacted plans' opportunity districts generally pack minority voters beyond the point required by law or geography.

Our findings have significant legal and policy implications. First, current plans that feature more opportunity districts than usually arise when nonracial mapmaking criteria are applied would be highly vulnerable if Judge Easterbrook's proposal were adopted. Some of these plans' opportunity districts could be attacked as unlawful racial gerrymanders, designed with an inordinate racial focus. States could also dismantle some of these plans' opportunity districts with little fear of violating section 2 or the U.S. Constitution. Second, however, current plans that underrepresent minority voters relative to the race-blind baseline could still yield viable section 2 lawsuits. Even in Judge Easterbrook's preferred regime, plaintiffs would be able to show that more opportunity districts would have materialized had the lines only been drawn without considering race. And third, in almost all jurisdictions, mapmakers could use a different strategy to satisfy their section 2 obligations (whether the baseline is race neutrality or proportionality). They could considerably unpack minority voters without sacrificing these voters' abilities to elect their candidates of choice.

What about the partisan consequences of the race-blind baseline--how the major parties' legislative representation would be affected by lines drawn on nonracial grounds ? To tackle this question, we randomly generate one thousand more state-house maps for each state in our study. These maps again ignore partisanship and match or beat each enacted plan in terms of traditional criteria. But unlike their predecessors, these maps equal each enacted plan's number of minority opportunity districts. They are race conscious, not race blind. In combination, the two sets of simulations allow us to estimate the partisan impact of Judge Easterbrook's idea. The second simulation set extracts party but not race from the districting status quo. The first simulation set extracts party and race. The difference between the simulation sets thus represents the partisan effect of the race-blind baseline.

We find that, in the Deep South, Republicans would benefit from nonracial redistricting. That is, maps produced without consideration of...