Comments on Georgia v. Ashcroft
decision Before today, the Supreme Court had decided eleven
cases by a 5-4, vote, with Justice O'Connor in the majority in each case.
Today it decided its twelfth and thirteenth, and one is the redistricting
case Georgia
v. Ashcroft (the other is Stogner v. California).
Georgia v. Ashcroft, a 5-4 opinion written by Justice O'Connor, is
an extremely important case under section 5 of the Voting Rights Act. Section
5 requires certain covered jurisdictions (mainly, but not only, in the South)
to seek "preclearance" from the Justice Department (or a special three judge
court in Washington, D.C.) before making any change in a voting practice
or procedure. Preclearance should be granted if the state or local body can
prove the change has no "discriminatory purpose or effect." Under the earlier
Beer v. United States case, 425 U.S. 130 (1976), a discriminatory
effect is proven when the change "would lead to a retrogression in the position
of racial minorities with respect to the effective exercise of the electoral
franchise."
Background In the past, beginning with Beer, the "non-retrogression"
analysis was fairly mechanical. Assuming the state has the same number of
voters (and same percentage of minority voters), the question was basically
whether the percentage of majority-minority districts (that is, districts
in which a majority of voters from a protected racial minority could elect
a representative of their choice) stayed the same or went up. Retrogression
occurred only if the number went down.
In the lower court in the Georgia case, the Democratic Georgia legislature
in drawing Senate lines decided to "unpack" some majority-minority districts
by spreading out African-American voters (reliable Democratic voters in Georgia)
into more districts. This meant that Democrats could create more districts
in which there was a chance to elect a Democrat, through coalitions between
black and white voters. Because the plan decreased the percentages of African-Americans
in three districts from 55-60% to around 50%, the federal government took
the position that the districts should not be precleared because they made
it less likely that African-Americans in the districts could elect a candidate
of their choice. The lower court agreed, and denied preclearance of the plan.
The Supreme Court's holding Today's opinion requires a richer, more
nuanced, and perhaps unadministrable test for determining how to measure
retrogression, or what it means for racial minorities to "effective[ly] exercise"
their "electoral franchise." The majority rejects a pure mechanical count
of the number of majority-minority districts. Slip op at 16 ("In assessing
the totality of the circumstances, a court should not focus solely on the
comparative ability of a minority group to elect a candidate of its choice.")
Instead, "any assessment of retrogression of a minority group's effective
exercise of the electoral franchise depends on an examination of all the
relevant circumstances, such as the ability of minority voters to elect candidates
of their choice, the extent of the minority group's opportunity to participate
in the political process, and the feasibility of creating a nonretrogressive
plan." Slip op. at 15.
After incredulously stating that the standard in section 5 is "simple," slip.
op. at 16, the Court explained that there are both different theories of
representation that a jurisdiction may use in determining effective exercise
of political power by minorities and different means of measuring such effectiveness.
1. The number of majority-minority jurisdictions remains relevant, but "it
cannot be dispositive or exclusive."
2. "[A] state may choose to create a certain number of 'safe' districts in
which it is highly likely that minority voters will be able to elect the
candidates of their choice." "Alternatively, a state may choose to create
a greater number of districts in which is likely--although perhaps not quote
as likely as under the benchmark plan---that minority voters will be able
to elect candidates of their choice." (On this point, the majority (as well
as the dissent) cited the indispensable article by Rick Pildes, Is Voting-Rights
Law Now at War with Itself? Social Science and Voting Rights in the 2000s,
80 N.C. L. Rev. 1517 (2002).) The state gets to choose, based on whether it
prefers substantive or descriptive representation.
3. "[T]he other highly relevant factor in a retrogression inquiry is the
extent to which a new plan changes the minority group's opportunity to participate
in the political process...Thus, a court must examine whether a new plan
adds or subtracts 'influence districts'--where minority voters may not be
able to elect a candidate of choice but can play a substantial, if not decisive,
role in the electoral process." (Here, the court relied upon the important
empirical work by David Lublin, and Cameron, Epstein, and O'Halloran---citing
also Swain, Grofman, Handly and Lublin, and Pildes.)
4. "In addition to influence districts, one other method of assessing the
minority group's opportunity to participate in the political process is to
examine the comparative position of legislative leadership, influence, and
power for representatives of the benchmark majority-minority districts."
5. "And it is also significant, though not dispositive, whether the representatives
elected from the very districts created and protected by the Voting right
Act support the new districting plan."
Looking at the evidence from the state as a whole, the Court concluded that
"Georgia likely met its burden of showing nonretrogression." But it vacated
and remanded to the District Court to "reweigh all the facts in the record
in the first instance in light of our explication of retrogression."
Initial thoughts
1. In the short run, the opinion is good for Democrats Democrats in
the Georgia legislature supported the redistricting plan because it provided
a way of moving reliable Democratic voters into a larger number of districts.
The "packing" of minority voters into majority-minority districts tended
to benefit Republicans.
2. Will the long run implications of the decision favor state governments
that would discriminate on the basis of race? The four dissenters worry
not only that the test is unadministrable (see point 4 below), but also that
it will help states discriminate against minority voters: "[I]f in subsequent
cases the Court allows the State's burden to be satisfied on the pretense
that unquantifiable influence can be equated with majority-minority power,
§ 5 will simply drop out as a safeguard against the 'unremitting and ingenious
defiance of the Constitution' that required the procedure of preclearance
in the first place." Dissent slip. op. at 6.
3. Lack of partisanship on the Supreme Court? It is good to see an
opinion helping Democrats (at least in the short run) being supported by
the most conservative Justices on the Court and opposed by the liberals. Though
perhaps one can point to the long-term potential consequences I flagged in
number 2 above to make a counter-argument.
4. Administrability The dissent is no doubt right that this new test
for non-retrogression will be much harder to administer. The majority said
the old test was itself "fact intensive," slip. op. at 21, but of course
the facts of racially polarized voting are easy to measure. The new standards
set forth above involve measuring things for which either (1) there are no
hard data (e.g., how much influence does a majority-minority member have
in a legislature?) or no data at all (e.g., did the state decide to decrease
the number of majority-minority districts because it had read Pitkin's theories
on representation or because it wanted to discriminate against minority voters?).
In the constitutional context, I have praised the Court for coming up with
initially unmanageable standards, so that the contours of constitutional
rights can be fleshed out with experience from lower court cases over time.
Perhaps the new multi-factor test of the Court in the section 5 context
can be defended on this basis as well. I'll have to think about it more.
It certainly makes work harder for the Justice Department's preclearance
division, and creates more work for election lawyers.
5. A Congressional Rewrite? If the Court has it "wrong" here as a
matter of statutory interpretation, Congress may well fix the problem before
the next round of redistricting. Section 5 comes up for renewal before Congress
in 2007, or it sunsets.
--
Professor Rick Hasen
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-0019
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com