Photo: Win McNamee/Getty Images
Last Week's Affirmative Action Setback Could Be a Boost to Voting Rights
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Last Week's Affirmative Action Setback Could Be a Boost to Voting Rights

By and Photo: Win McNamee/Getty Images

Last week, the Supreme Court upheld a Michigan law that banned affirmative action in Schuette v. BAMN. Civil rights leaders decried the Court’s decision. Yet hidden within the decision is a legal theoryabout the significance of racial discrimination by ordinary citizensthat provides crucial and unexpected support for minority voting rights.  

Michigan’s law banned any kind of preference on the basis of race or ethnicity in higher education. A lower court struck it down, reasoning not that the U.S. Constitution requires affirmative action, but that the law, which amended Michigan’s state constitution, kept minorities from using ordinary political tools to achieve policy goals like affirmative action. Athletes and legacies, the lower court reasoned, could still lobby or agitate to get admissions preferences. But for racial minorities, that option was now off the tablein a state where 80 percent of the people are white.  

The Supreme Court reversed the lower court. Justice Sotomayor, dissenting, castigated her colleagues. As Sotomayor saw it, Schuette essentially discarded the “political process doctrine,” which had been used in previous cases to invalidate state laws that made it harder for minorities to achieve policies they strongly favor.  The doctrine rested on the proposition that it violates equal protection for a state to create special procedures, such as referendum voting requirements, for the enactment of laws whose benefits inure primarily to racial minorities.  

Some of the rhetoric and anger in Sotomayor’s dissent can be traced to the Court’s marquee decision last summer holding that southern states and local governments were no longer required to get advance permission from the federal government before implementing changes to their election laws, a Voting Rights Act requirement known as preclearance. That case, called Shelby County v. Holder, was similarly blasted by civil rights advocates as portending a return to the bad old days when southern states gerrymandered or invented absurd voting prerequisites to dilute the political power of their African American citizenry.

Yet in surprising ways, Justice Kennedy’s plurality opinion in Schuette actually bolsters the constitutionality of what remains of the Voting Rights Act after Shelby County.  The part that’s left, known as Section 2, bars election laws “which result” in diminished opportunities for minorities to fully participate in elections and have a shot at electing the candidate of their choice. But courts can find a violation of Section 2 even without finding that the government intended to deprive racial minorities of voting powera state of affairs in significant tension with the longstanding understanding that only intentional discrimination is prohibited by the U.S. Constitution. Indeed, after Shelby County, many thought that Section 2 of the Voting Rights Act would soon fall to the Roberts Court’s aggressive remaking of civil rights law.

The political process doctrine, the one Justice Sotomayor defended so fiercely in her Schuette dissent, has a lot in common with Section 2 of the VRA in that it guards against discriminatory results, even without any proof that they were intended to harm minorities. Justice Scalia saw that as the doctrine’s intolerable flaw: Emphasizing the difference between purpose and effect, his opinion in Schuette argues that the political process doctrine should be jettisoned once and for all.

But neither the Chief Justice Roberts nor Justices Kennedy and Alito joined Scalia’s opinion. Instead, they teamed up in Kennedy’s opinion and distinguished Schuette from earlier political process doctrine cases on the ground that those earlier cases concerned political changes that “target[ed] racial minorities” “in circumstances [of] widespread racial discrimination,” and that “had the serious risk, if not purpose, of causing specific injuries on account of race.”  

The takeaway is that political process changesincluding changes to the rules governing electionsare not subject to the same intent test that governs the rest of the Supreme Court’s race jurisprudence. Seemingly neutral political reforms that “target” and disadvantage a racial minority may be unconstitutional, even if they aren’t motivated by an intent to harm minorities (or the bad intent can’t be proved). So too electoral arrangements that magnify the political effect of voter discrimination, if adopted “in circumstances [of] widespread racial discrimination”of which there was little evidence in the Michigan case.

This matters for the future of the Voting Rights Act. For starters, there now can be little doubt that the “results test” of Section 2 is constitutional when deployed against newly adopted election lawssuch as voter ID requirements, or redistricting mapsthat disadvantage racial minorities under circumstances of widespread societal discrimination.  

We have shown in recent work that there is a lot of variation from state to state and county to county in the degree to which white voters negatively stereotype racial minorities, and in the incentives of political elites to selectively burden political participation by racial minorities (think reduced polling hours that make it harder for many to make it to the polls). These findings can serve as guides in Section 2 litigation.

There is also a lot the Department of Justice can do administratively to give Section 2 more bite vis-à-vis political reforms that, in the words of the Schuette plurality, have the “serious risk, if not purpose, of causing specific injuries on account of race.” For example, DOJ could issue guidelines explaining its understanding of the conditions that create such “serious risks.” Federal courts would have to give the guidelines some deference.  

But the most immediate payoff could come in lawsuits DOJ has brought against Texas and North Carolina. A rarely invoked provision of the Voting Rights Act authorizes federal courts to remedy constitutional voting rights violations by requiring the bad-actor government to get DOJ’s advance permission before changing its voting lawsthe same preclearance requirement that most Southern governments were subject to before Shelby County. Civil rights lawyers thought, before Schuette, that a court would have to find clear evidence of intentional discrimination before imposing a preclearance requirement. But, under Schuette and, arguably, under a little-remarked Supreme Court decision from the early 1980s, election laws may violate the Constitution if they “target” a racial class or give legal effect to societal discrimination.

In Texas today, societal conditions and political incentives create a relatively high risk of discrimination against blacks and Latinos in the electoral process. Indeed, just a few years ago the Supreme Court invalidated a map of Texas legislative districts. The Court, in an opinion by Justice Kennedy, stated that the map “bore the mark” of intentional discrimination because the redistricters had targeted an emerging, politically cohesive Latino community. Kennedy’s opinion puzzled many observers because the trial court had found that the map’s purpose was to advantage the Republican Party rather than to hurt Latinos, a finding that Justice Kennedy acknowledged.  

Though the Texas redistricting case was decided under the Voting Rights Act rather than the Constitution, Kennedy’s remarks about purpose again imply that when it comes to politics, the Constitution’s protections against race discrimination sweep a little more broadly than in other realms.  

All of this suggests that DOJ’s efforts to return the state of Texas to federal supervision may not be quite the legal long shot that some observers think. And, when a constitutional challenge to Section 2 eventually reaches the Supreme Court, Justice Sotomayor may discover that she has some unexpected allies.

Elmendorf and Spencer are law professors at, respectively, the University of California, Davis and the University of Connecticut. 

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