THE VRA AT A CROSSROADS: THE ABILITY OF SECTION 2 TO ADDRESS DISCRIMINATORY DISTRICTING ON THE EVE OF THE 2020 CENSUS.

• Author: Boris, Ben
• Position: Voting Rights Act of 1965

INTRODUCTION

"[A] triumph for freedom as huge as any victory that has ever been won on any battlefield," President Lyndon B. Johnson declared as he signed the Voting Rights Act of 1965 (VRA or "Act") into law. (1) For nearly a century following the passage of the Fifteenth Amendment, African Americans had faced blatant obstacles that effectively denied them the right to vote, such as "secret ballots, poll taxes, [and] literacy tests." (2) For example, the tactics used to keep black citizens from casting ballots in Mississippi included a literacy test, with questions such as "how many bubbles are in a bar of soap?" (3) Since its passage, the voting rights of racial and language minorities protected under the Act have certainly improved, and the overt vote-denying tactics described above have been nearly eradicated. (4) In fact, black voter "turnout has come to exceed white voter turnout in" states with some of the worst history of racial discrimination. (5) However, if one scratches slightly below the surface, it becomes clear that minorities have yet to achieve equality in the right to vote.

Today,discriminatory efforts against minority voting rights are more discrete and aim to dilute the impact of minority votes rather than deny them from being cast in the first place. The dilution often occurs through redistricting, an exercise that state legislatures must undergo every ten years after promulgation of the census. (6) Since every congressional district is required to have a roughly equal population, state legislatures are required every decade toadjust the districts, in light of shifting demographics. (7) However, this constitutionally mandated process can be manipulated to create district maps that strategically lessen the impact of minority votes. North Carolina is home to a recent example of discriminatory districting. There, district lines split "throughblack communities in Greensboro, Charlotte, Fayetteville and elsewhere" to dilute their voting power. (8) The North Carolina election map also split North Carolina A&T State University, a historically black college, right down the middle. (9)

The dilution of minority voting strength through districting is a tactic stillemployed in modern day, but the Act's ability to combat these discriminatory measures is at a crossroads. After years of broad interpretation of the Act to combat vote discrimination, the Supreme Court, over the past decade, has taken a sharp turn to construe the Act in a far narrower fashion. This has restrained the ability of the Act to combat discriminatory districting. Thus, this Note advocates for the Act to be interpreted in a manner that allows it to meaningfully combat discriminatory efforts in districting. Time is of the essence, as the 2020 census looms, and redistricting efforts begin in state capitols across the country in just over a year. Without an Act that is equippedto meaningfully address discriminatory districting, a wave of district maps that dilute minority voting rights could go unchallenged.

Part I of this Note begins by examining the background of the VRA. In PartI, this Note will briefly summarize the Act's relationship with the Fifteenth Amendment and the circumstances that prompted its enactment, and detail the development of both section 2 and section 5 of the Act, as they have been used to combat vote discrimination. Part I will also discuss recent Supreme Court decisions that have limited the strength of the Act and set the stage for an analysis of the Act's inability to combat discriminatory districting.

Part II will highlight two shortcomings of the Act to combat modern day vote dilution. Briefly, these two problems are as follows. First, the sufficient-size Gingles precondition, which every plaintiff suing under section 2 for a districting claim must meet, is interpreted too stringently. Second, the Act lacksthe capacity to combat one of the most notorious forms of discriminatory districting,"packing." Part III then proposes two solutions to the aboveidentified problemsthat provide meaningful paths for relief without disturbing the core precedent surrounding the Act. First, coalition districts should be recognized under the first Gingles prong. Second, section 2 claims should be interpreted broadly to allow evaluation of minority vote dilution on a statewide or systemwide basis.

1. BACKGROUND

   1. History of the Voting Rights Act of 1965

      The Fifteenth Amendment proclaimed that a citizen's right to vote "shall not be denied or abridged... on account of race, color, or previous condition of servitude." (10) However, nearly a century after its enactment, it becameclear that the ability to vote was far from race neutral. (11) In the various legislative hearings that preceded passage of the Act, Congress came to twoprincipal conclusions. (12) First, efforts to keep black voters effectively disenfranchised amounted to "an insidious and pervasive evil which had been perpetuatedin certain parts of our country through unremitting and ingenious defianceof the Constitution." (13) Second, to give meaning to the Fifteenth Amendment, the ineffective remedies of the past would have to be replaced by stricter measures. (14)

      Therefore, Congress passed the Voting Rights Act of 1965 in an attempt to ensure access to the ballot would be unimpeded by racial discrimination and to ultimately realize political equality. (15) Generally speaking, "the VRA [proscribes] states, counties, and municipalities from abridging or denying the right to vote," either intentionally or in effect, on the basis of "race or color." (16) In addition to African Americans, the VRA protects other racial minority groups, including "Asian Americans, Alaskan Natives, [those] of Spanish descent,... American Indians," as well as "language minorities." (17)

      Further, the Act also protects against vote dilution. Vote denial occurs when one's ability to cast a vote is impeded; vote dilution occurs when the weight attached to one's vote, already cast, is decreased. (18) Most vote dilution claims fall under section 2 of the VRA. (19) However, section 5 also provides an avenue to challenge redistricting efforts, although its scope is limited to a few states. (20) Thus, its relationship with section 2 is important for a complete understanding of the Act's capability to combat discriminatory districting.

   2. The Development of Sections 2 and 5 of the VRA

      Section2 provides in pertinent part that, under subsection (a), no voting procedureshall be "imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right... to vote on account of race or color." (21) To establish a violation of section 2, a plaintiffmust prove, under the totality of the circumstances, that those protected under subsection (a) have "less opportunity than other members of theelectorate to participate in the political process and to elect representatives of their choice." (22) In the context of districting, section 2 prohibits states from drawing districts in a manner that dilutes the vote of those protected under the Act. (23)

      During the VRA's formative years, the Supreme Court and Congress did not see eye to eye. In Mobile v. Bolden, the Court built a scienter requirement into vote dilution claims under section 2. (24) Black voters alleged that the City's practice of "at-large" voting for City Commissioner positions violated section2. (25) While no African American had ever been elected as a City Commissioner under this at-large voting system, the Court nonetheless found no section 2 violation. (26) In doing so, the Court held that the plaintiffs had not proven that the at-large voting system was enacted by the City of Mobile with a discriminatory intent. (27) However, Congress swiftly rejected the Court's imposition of a discriminatory intent requirement. (28) Within two years of the Bolden decision, Congress amended section 2 to establish a results test. (29) In sum, a state violates section 2 if the effect of any procedure dilutes a minority group's right to vote, regardless of whether the state intended it. (30)

      In 1986, the Supreme Court in Gingles articulated a structure for section 2 claims alleging discriminatory districting and laid out three preconditions that plaintiffs must meet to advance their claim. (31) First, the plaintiff must showthat the minority group "is sufficiently large and geographically compact to [comprise] a majority in a single-member district" ("Gingles I"). (32) Second,the plaintiff must demonstrate the minority group is politically cohesive ("Gingles II"). (33) Third, the white majority must vote "sufficiently as a bloc to enable it... usually to defeat the minority's preferred candidate" ("Gingles III"). (34) If the plaintiff demonstrates all three preconditions, then the court will evaluate, under the totality of the circumstances, whether the district map denies the plaintiffs equal access to the electoral process. (35) The Senatepromulgated seven factors courts may rely on when evaluating a section 2 claim, under the totality of the circumstances. (36) While Gingles was decided in the context of a multi-member district, the Court later clarified that the three preconditions applied to section 2 claims in single-member districts as well. (37)

      It is also important to briefly examine section 5 of the VRA, as it also applies to districting. Section 5 only applies to jurisdictions with a notable historyof vote-discrimination and precludes these jurisdictions from implementing "anyelection-related change unless permitted to do so... by a federal court or by the U.S. Department of Justice." (38) To gain preclearance of an electoral change from the federal government, the enacting jurisdiction would have to prove: (1) that no discriminatory intent existed and (2) that the electoral change would not result in the denial or abridgment of the right to vote of those protected by the VRA. (39) The Court...