PLANK SEPTEMBER 10, 2012
Six years ago, to much fanfare, Congress extended the lifespan of the Voting Rights Act’s crucial preclearance provision, Section 5, by twenty-five years. (Section 5 requires covered jurisdictions, mostly in the South, to get permission from the federal government before enacting any new electoral laws.) But Congress didn’t just renew Section 5; it also revised it. Section 5 now bars covered jurisdictions from diminishing minority groups’ “ability to elect” the candidates of their choice. The provision now also forbids these jurisdictions from passing election laws with “any discriminatory purpose.”
At the time these amendments were made, their consequences were highly uncertain. No one knew whether minorities would be able to elect more or fewer candidates as a result, or whether Democrats or Republicans would benefit. As Columbia professor Nathaniel Persily wrote in 2007, “there is disagreement about . . . how one determines minorities’ ‘ability to elect,’” and “[t]he potential interpretations of the law run the gamut from entrenching either Republican or Democratic gerrymanders.”
Thanks to a major decision last Tuesday by a three-judge court in Washington, D.C.—the first to carefully examine the new statutory language—we no longer need to speculate about the law’s implications. At least as applied by these judges, the revised Section 5 is extraordinarily favorable to minorities, and almost as beneficial to Democrats. But, ironically, these very attributes may spell doom for the provision when, most likely next year, it reaches the Supreme Court.
The three-judge court had to decide whether Texas’s new district plans for Congress, the State House, and the State Senate reduced minorities’ ability to elect their preferred candidates or were enacted with a discriminatory purpose. The court held that the Congressional and House plans undercut minorities’ ability to elect, and that all three plans were improperly motivated. Therefore none of the plans may go into effect, and Texas must go back to the drawing board to come up with valid districts for the rest of the decade.
More remarkable than the court’s holding was its reasoning. The court made at least four striking moves in its analysis of the revised Section 5, three of which are very advantageous for minorities, and one of which is very advantageous for Democrats. First, the court ruled that districts in which minorities are able to elect the candidates of their choice—that is, “ability” districts—include not only majority-minority districts but also “coalition” and “crossover” districts. In coalition districts, different minority groups (such as African Americans and Hispanics) band together to elect their preferred candidates. In crossover districts, members of the white majority cross racial lines to vote for minorities’ candidates of choice. If these sorts of districts are protected by the revised Section 5, then no constituency in which the minority-preferred candidate usually prevails can ever be eliminated.
Second, the court held that the number of ability districts in a state must sometimes increase if the state gains Congressional districts. Texas acquired four new Congressional districts after the 2010 Census thanks to its dramatic rise in population during the preceding decade. According to the court, keeping constant the number of ability districts in the new Congressional plan was not good enough, because doing so would increase the “representation gap” between the number of districts actually controlled by minorities and the number of districts they would control under proportional representation. To prevent the representation gap from widening, Texas had to draw at least one additional ability district.
Third, in finding that all three of Texas’s plans were improperly motivated, the court deemed relevant a very wide variety of evidence. Among the factors the court cited were the exclusion of minority politicians from deliberations over redistricting, the irregular nature of the line-drawing process, Texas’s losses in court in previous electoral disputes, and, most notably, boundary changes that did not reduce minorities’ ability to elect their preferred candidates. If all such information can be considered, then it will be relatively easy for future courts to sniff out a discriminatory purpose. District plans will often be blocked even if there is no reduction in their number of ability districts.
As for the development that was advantageous for Democrats, it was the court’s expansive understanding of what constitutes a crossover district. Two of the three judges concluded that old Congressional District 25, in which Hispanics made up 25.3 percent of the citizen voting-age population and African Americans made up 9.1 percent, was a protected ability district. Minorities cast only 19 percent of the votes in this district, meaning that non-minority voters were the largest constituency that supported longtime Democratic incumbent Lloyd Doggett. If districts in which minority voters comprise a minority even of the winning Democratic coalition count as ability districts, then most Democratic districts in racially diverse states will be covered by the revised Section 5. Line-drawers will be able to break up Republican districts at will, but they will often run afoul of the Voting Rights Act if they try to do the same to Democratic districts.
So minorities and Democrats should be dancing in the streets after the court’s decision, right? For now, yes, but an unhappy ending may still be in store for them. The reason is that the revised Section 5 currently sits on very thin constitutional ice. Three years ago, the Supreme Court declared ominously that the provision “imposes substantial federalism costs” and “raise[s] serious constitutional questions.” The Court found a loophole then that allowed it to avoid answering these questions, but there will be no analogous escape hatch when the next Section 5 cases reach the Justices, most likely in 2013.
Moreover, the three-judge court’s decision probably makes it more likely that the Court will strike down the provision. The more aggressively Section 5 is construed, the more it restricts the autonomy of covered jurisdictions, and the higher are the “federalism costs” that it imposes. States have more to complain about, in other words, if “ability to elect” and “any discriminatory purpose” are defined in particularly broad terms. In addition, when the Court last confronted the provision, it did not yet know what consequences its amendments would have for minority groups or for political parties. But now the Court knows quite a bit more, and what it’s learning—that the revised Section 5 benefits minorities and Democrats relative to the pre-2006 status quo—is unlikely to be received favorably.
On the other hand, the evidence of discriminatory intent unearthed by the three-judge court cuts in the opposite direction. If covered jurisdictions are still carving districts with the aim of harming minority voters, then perhaps Section 5 has not yet outlived its usefulness. Perhaps we need to bear the provision’s federalism costs for some time to come if the likely alternative is a return to blatantly unfair electoral practices. Yet the court was unable to locate a smoking gun; as the judges conceded, “[t]here is no direct evidence that the enacted plan was motivated by discriminatory purpose.” And the two other lower courts that recently decided Section 5 cases declined to address the discriminatory purpose prong at all. So it seems improbable that the Supreme Court will be persuaded to spare Section 5—with its pro-minority and pro-Democratic implications—by mere circumstantial evidence of malicious motivation.
Accordingly, the three-judge court’s decision to block Texas’s new district plans could amount to a Pyrrhic victory. The decision is thorough and well-reasoned, and its interpretation of the provision is quite defensible. But by highlighting the greater reach of the revised Section 5, the case may well strengthen the resolve of the conservative Justices to strike it down. A year from now, minorities and Democrats are unlikely to still be dancing in the streets.