[EL] The Erasure of Racial Vote Dilution Doctrine

[Nicholas Stephanopoulos]

I’ll have more to say about the Court’s appalling opinion in *Rucho* in
Rick’s symposium next week. But I want to flag one point now: the Court’s
erasure of racial vote dilution doctrine. This is the doctrine that allows
groups of minority voters to challenge electoral arrangements (including
district lines) on the ground that the policies dilute the plaintiffs’
votes. When such claims are brought under the Constitution, they require
both discriminatory intent and discriminatory effect in the form of
cracking and packing that reduce the plaintiffs’ electoral influence. And
crucially, the claims *can* be brought under the Constitution, not just the
Voting Rights Act. Landmark precedents like *White v. Regester* and *Rogers
v. Lodge* involve exclusively constitutional—and successful—racial vote
dilution suits.



But you wouldn’t know any of this from *Rucho*. The Court discussed the two
*other* kinds of redistricting claims that can be raised under the
Constitution: one person, one vote, and racial gerrymandering. According to
the Court, neither of these theories supports the justiciability of
partisan gerrymandering claims. That’s because one person, one vote is an
individualistic theory from which claims about group power can’t be
derived, while racial gerrymandering suits don’t “ask for a fair share of
political power and influence, with all the justiciability conundrums that
entails.” In contrast, the Court didn’t say a word about racial vote
dilution. It didn’t cite *White* or *Rogers* or any other racial vote
dilution decision. It didn’t mention the standard for liability in these
cases. It didn’t even acknowledge that the doctrine *exists*.



This omission couldn’t have been accidental. In their briefs, the
plaintiffs focused relentlessly on racial vote dilution precedents, arguing
that they provided an analytical structure that could be used for partisan
gerrymandering claims too. As the League of Women Voters plaintiffs put it,
“that [partisan gerrymandering claims] are not political questions . . .
follows from the undisputed justiciability of *racial* vote-dilution cases.
Racial vote dilution, just like partisan vote dilution, works by cracking
and packing disfavored voters and thus abridging their electoral influence.
The former cannot be justiciable and the latter not.” It was thus bitterly
ironic when the Court asserted that “Appellees contend that if we can
adjudicate *one-person, one-vote* claims, we can also assess partisan
gerrymandering claims.” After all, that was never Appellees’ contention.
Their actual argument, which the Court studiously refused to acknowledge,
was that if the Court can adjudicate *racial vote dilution* claims, it can
also assess analytically identical partisan gerrymandering claims.



Why did the Court refuse to recognize the plaintiffs’ actual position?
Probably because of its force. The parallels between partisan vote dilution
and racial vote dilution go on and on, and make it impossible to
distinguish between the doctrines’ justiciability. First, both doctrines
require proof of discriminatory intent. Second, the vote dilution condemned
by both doctrines operates through the cracking and packing of groups of
disfavored voters. Third, this dilution can only occur when members of both
the favored and disfavored groups are politically cohesive. Fourth, the
dilution can only be discerned by looking beyond the boundaries of a single
district to the entire region where the disfavored group’s influence is
abridged. And fifth, and most fundamentally, both claims “ask for a fair
share of political power and influence” for the targeted group. Both
claims, that is, ask for the very thing that, in the Court’s view, poses
unsolvable “justiciability conundrums.”


*Rucho*’s silence about racial vote dilution, then, is extremely ominous.
Does the Court no longer believe the doctrine exists? If so, decades of
precedent would have to be discarded and the constitutional foundation of
Section 2 of the Voting Rights Act would crumble into nothing. Or, only
slightly less radically, does the Court think the doctrine exists but is
nonjusticiable because it too involves “reallocating power and influence
between political [groups]”? Then constitutional racial vote dilution
claims would be unavailable but Section 2 suits might still be allowed to
proceed. Or, probably most plausibly, did the Court fail to mention the
doctrine because its existence complicated the Court’s effort to shut the
door on partisan gerrymandering claims? Then these dire consequences
wouldn’t necessarily follow—but Court’s bad faith would be crystal clear.
It’s the epitome of motivated, lawless reasoning to ignore a whole body of
precedent just because it points in an awkward direction.

-- 
Nicholas O. Stephanopoulos
Professor of Law
Herbert and Marjorie Fried Research Scholar
University of Chicago Law School
nsteph at uchicago.edu
(773) 702-4226
http://www.law.uchicago.edu/faculty/stephanopoulos
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