The unforeseen effects of Georgia v. Ashcroft on the Latino community.

• Author: Bedoya, Alvaro

NOTE CONTENTS INTRODUCTION I. MISSING HALF OF THE STORY A. The Mechanics of the Decision B. Justice O'Connor's Evidentiary Foundations 1. The Alleged Harms of Majority-Minority Districts 2. The Reduced Need for Majority-Minority Districts C. The Absence of Latinos in Georgia v. Ashcroft II. FILLING IN THE GAP A. A Comparative Profile of the Hispanic Electorate B. Implications for Districting in the Hispanic Context 1. The Failure of Hispanic Coalitional Districts 2. The Empty Promise of Hispanic Influence Districts 3. The Continuing Need for Hispanic-Majority Districts C. The Threat of Georgia v. Ashcroft to the Hispanic Community III. REPAIRING THE DAMAGE OF GEORGIA V. ASHCROFT A. The Georgia v. Ashcroft Legislative "Fix" B. Reinvigorating the Totality of the Circumstances Test CONCLUSION INTRODUCTION

Despite their status as the largest minority group in the United States, Hispanics remain dramatically underrepresented in elected office. The U.S. Census estimates that over 41.3 million Latinos live in the United States, (1) making up 14% of the nation's population. (2) Nevertheless, of the 535 members of Congress, only 28 (5%) are Hispanic. (3) This pattern of underrepresentation extends to the state level. (4) In California and Texas--the two states with the largest Latino populations (5)--Hispanics amount to approximately one-third of the state population, but hold only 5.2% and 7.3% of state offices, respectively. (6)

This level of representation marks a high point for the Latino community; until the early 1980s, Hispanic representation in Congress lingered in the single digits. (7) The gains in Hispanic office-holding during the 1980s and 1990s can be attributed in part to the passage and implementation of the Voting Rights Act (VRA). The VRA facilitated the establishment of numerous majority-minority districts, in which minority voters constitute a majority of the relevant population, be it total population, voting-age population (VAP), or citizen voting-age population (CVAP). (8) The electoral benefits of majority-minority districts became evident after the 1990 round of redistricting. State legislatures constructed ten new majority-Latino districts, and shortly thereafter seven Hispanic freshmen joined the House of Representatives. (9)

Two provisions of the VRA were crucial to the creation and maintenance of majority-minority districts: section 2 and section 5. Section 2 prohibits any policy or practice that has the effect of giving racial minorities "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." (10) Under section 5, a state or subdivision seeking to change a law or practice affecting voting must first preclear such a change, either by submission to the Attorney General, or by filing for a declaratory judgment in the United States District Court for the District of Columbia. Regardless of the method employed, the jurisdiction in question must demonstrate that the proposed change does "not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color" or membership in a language minority group. (11) In contrast to section 2, which applies throughout the United States, the protections of section 5 of the VRA only apply to jurisdictions that have met a particular set of threshold criteria known as a "triggering formula." (12)

The Supreme Court specified what section 5 required in Beer v. United States, (13) in which the Court interpreted section 5 to prohibit only those changes that would have a retrogressive effect on a minority community's "effective exercise of the electoral franchise." (14) Until recently, courts considered any diminution in the ability of minority communities to elect candidates of their choice to be retrogressive; this Note will refer to this as the "ability to elect" standard. (15) For proposed redistricting plans, the number of majority-minority districts was critical evidence for assessing "ability to elect," such that a proposed reduction in the number of such districts was persuasive evidence of retrogression and hence of a section 5 violation. (16)

The reigning ability to elect standard was dethroned in 2003, when the Supreme Court decided Georgia v. Ashcroft. (17) Justice O'Connor's opinion, joined by Chief Justice Rehnquist, and Justices Scalia, Kennedy, and Thomas, made two major changes to the section 5 preclearance doctrine. First, Justice O'Connor expanded the ability to elect standard so that it would take into account both districts where it is "highly likely" that a minority community will be able to elect its candidate of choice, and other districts where "it is likely--although perhaps not quite as likely" that minority communities will succeed in electing their chosen candidate. (18) Second, Justice O'Connor restructured the section 5 inquiry such that ability to elect was merely one prong in a larger "totality of the circumstances" test. (19) After Georgia v. Ashcrofi covered jurisdictions could secure preclearance even if they had "unpacked" majority-minority districts to create "coalitional districts," where minority groups depend on coalitions with other voters to elect their candidates of choice, (20) or "influence districts," where minority voters are not able to elect their candidates of choice, but could be swing voters in an election. Prior to Georgia v. Ashcroft, preclearance for those jurisdictions would have been highly unlikely.

Justice O'Connor defended this radical change in section 5 jurisprudence by citing five sociological studies that she claimed suggested that "the most effective way to maximize minority voting strength may be to create more influence or coalitional districts." (21) In part, these studies argued that increased white support for black candidates--known as white "crossover voting"--meant that black communities no longer needed majority-minority districts in order to elect their candidates of choice; (22) this would make less-concentrated coalitional districts a viable alternative to majority-minority ones. The studies further posited that the concentration of black voters in majority-minority districts had led to the election of more conservative candidates in surrounding districts, resulting in the decreased effectiveness of black representatives in legislative bodies; (23) this tendency would call for the elimination of majority-minority districts in favor of influence and coalitional districts.

Georgia v. Ashcroft triggered a strong response from a number of scholars, who countered that the purported benefits of coalitional or influence districts were poor substitutes for the proven gains of majority-minority districts. (24) As Juan Cartagena has observed, however, because the facts of the case involved the black community in Georgia, the most forceful critiques of Georgia v. Ashcroft have focused on the decision's impact on black voters. (25) Thus, a critical gap in Justice O'Connor's reasoning has gone unnoticed: Even though Georgia v. Ashcroft applies to all minority groups, not one of the studies cited by Justice O'Connor deals at any significant length with the effectiveness of coalitional or influence districts in Hispanic--rather than black--communities. Given that jurisdictions covered by section 5 are home to almost as many Hispanics as African-Americans, this is a particularly glaring oversight. (26)

This Note asks the questions that Justice O'Connor did not consider: Is there reliable evidence that the best way to maximize Hispanic voting strength is to create more Hispanic coalitional and influence districts? If not, what impact will Georgia v. Ashcroft have on the Hispanic community? To date, only a handful of scholars have addressed these issues at any length. (27) None, however, has identified the evidentiary gap at the core of Justice O'Connor's holding, nor has anyone accounted for the demographic and electoral attributes uniquely salient in the Latino community and considered whether--in light of those characteristics--the premises of Georgia v. Ashcroft are equally applicable to Latinos.

This Note finds that coalitional and influence districts are poorly suited to enable Latino voters to elect their candidates of choice, and indeed do little to empower Latino voters in general. Instead, majority-minority districts remain the primary means through which Hispanic communities can elect their preferred candidates. In light of these findings, this Note goes on to discuss two strategies--one for Congress, one for courts--to repair the deficiencies of Georgia v. Ashcroft and prevent the unwarranted elimination of Hispanic-majority districts.

This Note proceeds in three Parts. Part I examines the evidentiary foundations of Justice O'Connor's opinion. Part II "fills in the gap," creating a profile of the Hispanic electorate to assess the effectiveness of coalitional and influence districts in the Hispanic context, and hence evaluating Georgia v. Ashcroft's likely impact on the Hispanic community. Part III presents two strategies to avoid possible damage caused by the opinion. Finally, the Conclusion offers some broader observations on the administration of section 5 and the VRA in "other" minority contexts.

1. MISSING HALF OF THE STORY

   Despite the fact that Georgia v. Ashcroft applies to all minority voters, (28) its holding was predicated on selective evidence drawn solely from the African-American community. Justice O'Connor missed half of the story.

   In this Part, I briefly describe the redistricting process that sparked Georgia v. Ashcroft and explain the mechanics of the opinion itself. I then explore the foundations of Justice O'Connor's opinion, elaborating on the critiques of majority-minority districts that Justice O'Connor used to justify her emphasis on coalitional and influence districts. Finally, I show how these critiques--and the opinion...