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Excerpted From: Paul A. Riley, Jr., “Unpacking” The Problem: The Need to Broaden the Scope of Vote Dilution Claims under Section 2 of the VRA, 55 Columbia Journal of Law and Social Problems 279 (Winter, 2022) (191 Footnotes) (Full Document)


PaulRileyJr2022 marks both fifty-seven years since the passage of the Voting Rights Act of 1965 (VRA) and two years since civil rights icon John Lewis was laid to rest. Many will never forget the footage of police officers brutalizing John Lewis and other nonviolent protestors as they marched for their right to vote on March 7, 1965. Often referred to as “Bloody Sunday,” the events at the Edmund Pettus Bridge in Selma, Alabama rocked the nation. Enacted into law on August 6, 1965 in response to the troubling events of Bloody Sunday, the VRA prohibits any measures that would prevent racial minorities from participating in the electoral process. More specifically, Section 2 of the VRA prohibits, “any standards, practices, or procedures” that abridge racial or language minorities' voting rights. As the Supreme Court noted in Thornburg v. Gingles, “[t]he essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” The Supreme Court's consistent narrowing of the scope of Section 2 claims, however, has limited the ability of minority groups to seek adequate relief under the VRA.

Since its passage, the VRA featured repeatedly in the halls of Congress and in the courts. Congress has amended the VRA five times: in 1970, 1975, 1982, 1992, and 2006. Despite Congress' continued reauthorization of the VRA, the Supreme Court has weakened and even dismantled key VRA provisions. For example, Section 4 of the VRA created a “coverage formula” which included “covered jurisdictions” that “maintained a test or device as a prerequisite to voting as of November 1, 1964, and had less than 50 percent voter registration or turnout in the 1964 Presidential election.” Section 5 of the VRA required these covered jurisdictions to go through federal “preclearance” before any change to their voting procedures could take effect. In 2006, Congress renewed Sections 4 and 5 of the VRA until 2031; in 2013, however, the Supreme Court held that Section 4(b) was unconstitutional in Shelby County v. Holder. The Court took issue with the soundness of Section 4(b)'s coverage formula, reasoning that it improperly relied on decades-old data that failed to account for present-day realities.

The Supreme Court's jurisprudence regarding Section 2 violations appears to be inching closer and closer to making Section 2 obsolete as well. This obsolescence is due, in part, to the Supreme Court's narrow interpretation of “vote dilution”--an interpretation that severely limits the scope and reach of cognizable Section 2 claims. As the Supreme Court has emphasized, “[u]nder § 2 ... the injury is vote dilution.” The Supreme Court, however, has defined only two main types of vote dilution: (i) “the dispersal of blacks into districts in which they constitute an ineffective minority of voters” (referred to as “cracking”), and (ii) “the concentration of blacks into districts where they constitute an excessive majority” (referred to as “vote-packing claims” or “packing”). To evaluate vote fragmentation (cracking) claims, the Supreme Court created the so-called “Gingles test”--whereby the minority group must show that: (i) “it is sufficiently large and geographically compact to constitute a majority in a single-member district,” (ii) “it is politically cohesive,” and (iii) “the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate.” Once the plaintiff establishes these three preconditions, the court will then look to probative factors provided by the Senate Judiciary Committee in connection with the 1982 VRA amendments to conduct a “totality of the circumstances” analysis to assess a diminution in minority voting strength. If successful across both steps, the court must mandate the creation of majority-minority districts (districts where the minority group constitutes a majority of the district's voting population) as a Section 2 remedy. For vote-packing (packing) claims, however, the Supreme Court has yet to provide comparable relief under Section 2.

In 1980, the Supreme Court began limiting Section 2 in City of Mobile v. Bolden when it imposed an extratextual “purposeful intent” requirement. Congress quickly repudiated Bolden with its 1982 VRA Amendments, requiring only that plaintiffs show a discriminatory effect, not discriminatory purpose. The Supreme Court, nevertheless, continued to limit the scope of Section 2 by only providing relief for one type of vote dilution: “the dispersal of blacks into districts in which they constitute an ineffective minority” (i.e., cracking). Guided by the three Gingles preconditions, the Supreme Court paved the way for one main remedy to combat cracking: the creation of majority-minority districts. Though majority-minority districts have not been without controversy, and some have even been struck down as violative of the Fourteenth Amendment's Equal Protection Clause, these districts have played a significant role in increasing Black representation in the House of Representatives. Despite this modest indicium of progress, however, the Supreme Court has proactively pushed back against attempts by the Department of Justice, state legislatures, and courts to maximize the political success of minority voters through the creation of as many majority-minority districts as possible in redistricting plans. Perhaps most ominously for the future of Section 2 claims, the Supreme Court determined in Johnson v. De Grandy that no violation of Section 2 had occurred even when the three Gingles preconditions had been satisfied and there was evidence of past and continued discrimination against the minority group. The De Grandy Court reasoned that the redistricting plan's proportional representation mitigated concerns about vote dilution.

Given the Supreme Court's hostility towards majority-minority districts as a long-term solution to cracking, it is not surprising that the Court has been even more resistant to creating remedies for vote-packing claims under Section 2. In Voinovich v. Quilter, the Court addressed a vote-packing claim under Section 2. There, the remedy sought was the creation of more “cross-over districts”--where the minority group could become influential and work with white cross-over voters to elect their desired candidate. While the Voinovich Court questioned the viability of such claims under Section 2, the Bartlett plurality delivered a crucial blow when it held that cross-over districts were not required under Section 2. This inability to mandate the creation of cross-over districts essentially means that no remedy exists under Section 2 for packing claims, or claims alleging vote dilution because of “the concentration of blacks into districts where they constitute an excessive majority [i.e., packing].” For these reasons, this Note advances an approach that specifically codifies a potential framework for plaintiffs to bring vote-packing claims under Section 2. In adopting this Note's proposed legislative framework, Congress could equip courts with a clear and exacting standard to combat vote-packing, put state legislatures on notice as they craft future redistricting plans, and, perhaps most importantly, provide minorities--who are excessively packed into these districts--with some form of relief under Section 2 of the VRA.

Part I of this Note reviews the Section 2 jurisprudence as it relates to claims of cracking, the remedial creation of majority-minority districts, and the Supreme Court's unwillingness to find actual violations of the VRA when analyzing vote-packing claims. Part II employs three regressions to demonstrate the effect of race on the Cook Political Report's Partisan Voting Index (PVI) of congressional districts represented by Black Members in the 116th Congress' House of Representatives, and on voter turnout in the 2020 general and 2018 midterm elections. The observed effect of race on PVI and voter turnout, respectively, reveals the ways that racial gerrymandering can be a proxy for partisan gerrymandering and the deleterious effects vote-packing can have on electoral participation. Part III calls on Congress to make three amendments to Section 2: (i) specifically define and codify “vote dilution” in the VRA as inclusive of cracking and packing; (ii) permit multiple minority groups to collectively assert cracking claims; and (iii) incorporate a new three-factor test to make vote-packing claims cognizable under Section 2. Finally, Part III also addresses some potential concerns and limitations of this Note's proposed solutions.

[. . .]

The Supreme Court has been clear that, “[u]nder § 2 ... the injury is vote dilution.” The Supreme Court has outlined two main types of vote dilution: cracking--“the dispersal of blacks into districts in which they constitute an ineffective minority of voters”; and packing--“the concentration of blacks into districts where they constitute an excessive majority.” Despite these two definitions of “vote dilution,” the Supreme Court has precluded plaintiffs from advancing packing claims under Section 2.

Congress should close this gap by specifically creating a vote-packing claim under Section 2. With this goal in mind, this Note finds statistically significant relationships between race and the Partisan Voting Index (PVI) of a congressional district and between race and voter turnout in the 2020 general election and 2018 midterm elections. These relationships help to inform a novel, three-factor test for vote-packing claims under Section 2 of the VRA. Under the test, the minority group (or groups) must show: (i) that they constitute a considerable majority in a single-member district; (ii) that they are politically aligned; and (iii) that the district is not electorally competitive. In further refining and applying this test, this Note encourages the use of the demographics and the PVI of the median Black House member's district in the 116th Congress to start (i.e., a “considerable majority” would constitute a district that is more than 55% minority and non-competitiveness of the district would constitute a PVI approaching or greater than +25). By adopting this three-factor test, Congress could equip courts with a clear and exacting standard to prevent this other form of vote dilution (i.e., the excessive packing of minorities into a district), put state legislatures on notice as they craft future redistricting plans, and, perhaps most importantly, provide minorities--who have been excessively-packed into these districts--with relief under Section 2 of the VRA.

J.D. Candidate 2022, Columbia Law School.

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