Judicial ideology and the transformation of voting rights jurisprudence

University of Chicago Law Review

Volumn 75, Issue 4, 2008, Pages 1493-1539

  Cox, Adam B ^a   Miles, Thomas J ^a  

^a UNIVERSITY OF CHICAGO   (United States)

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EID: 59549105821     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (163)

1. The Voting Rights Act Amendments of 1982 § 3, Pub L No 97-205, 96 Stat 131, 134, codified as amended at 42 USC § 1973 (2000).
2. 478 US 30 (1986).
3. See text accompanying notes 31-35.
4. Adam B. Cox and Thomas J. Miles, Judging the Voting Rights Act, 108 Colum L Rev 1, 18-49 (2008).
5. See generally Thomas J. Miles and Cass R. Sunstein, The New Legal Realism, 75 U Chi L Rev 831 (2008).
6. See text accompanying notes 39-47.
7. Voting Rights Act of 1965, Pub L No 89-110, 79 Stat 437, codified as amended at 42 USCA § 1971 et seq (2006).
8. See Richard M. Valelly, The Voting Rights Act: Securing the Ballot ix, 258 (CQ 2006).
9. See US Const Amend XIV, § 1; US Const Amend XV, § 1 ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.").
10. See Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 258-59 (Basic 2000);
11. Eric Foner, Reconstruction: America's Unfinished Revolution 1863-1877 550-63 (Harper Perennial 1989).
12. See, for example, Nixon v Herndon, 273 US 536, 540-41 (1927) (striking down a white-only primary in Texas).
13. See J. Morgan Kousser, Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction 55, 145, 201 (North Carolina 1999).
14. See Voting Rights Act of 1965 § 4, 79 Stat at 438-39, codified as amended at 42 USCA §§ 1973b-73c (proscribing unlawful use of certain tests or devices as a prerequisite for voting or registration to vote).
15. See 42 USCA § 1973c (setting up judicial and administrative procedures that covered jurisdictions were required to follow to ensure that new voting qualifications "will not have the effect of denying or abridging the right to vote on account of race or color").
16. See 42 USCA § 1973b(b) (establishing that the proscriptions on use of certain voting tests would apply to states that have had less than 50 percent of residents of voting age registered as of specified dates).
17. Voting Rights Act of 1965 § 2, 79 Stat at 437, codified as amended at 42 USCA § 1973(a). Compare US Const Amend XV, § 1.
18. See, for example, White v Regester, 422 US 935, 935-36 (1975) (per curiam) (holding that parts of Texas's redistricting plan violated the Equal Protection Clause by diluting the votes of minorities);
19. Whitcomb v Chavis, 403 US 124, 127 (1971) ("We have before us in this case the validity under the Equal Protection Clause of the statutes districting and apportioning the State of Indiana for its general assembly elections.").
20. Consider also Gomillion v Lightfoot, 364 US 339, 340, 345-46 (1960) (relying, prior to the passage of the Voting Rights Act, on the Fifteenth Amendment to evaluate a statute that allegedly redrew the boundaries of the city of Tuskegee in order to segregate voters by race).
21. See, for example, Harper v Virginia State Board of Elections, 383 US 663, 666, 670 (1966) (invalidating a Virginia poll tax of $1.50 because it denied "the opportunity for equal participation by all voters" as required by the Equal Protection Clause).
22. See White v Regester, 412 US 755, 765-66 (1973);
23. Whitcomb, 403 US at 142, 142-44;
24. Pamela S. Karlan, The Rights to Vote: Some Pessimism about Formalism, 71 Tex L Rev 1705, 1705-06 (1993). Plaintiffs argued that such systems diluted the votes of minority voters in part by submerging their votes within a larger white majority. To remedy the dilution, plaintiffs often asked courts to break up an at-large system into several single-member districts so that minority voters would have a greater chance of electing a candidate of their choice in a least one of these districts.
25. 446 US 55 (1980).
26. See id at 62 (plurality).
27. See id at 61.
28. Armand Derfner, Vote Dilution and the Voting Rights Act Amendments of 1982, in Chandler Davidson, ed, Minority Vote Dilution 145, 149 (Howard 1989).
29. See also Samuel Issacharoff, Pamela S. Karlan, and Richard H. Pildes, The Law of Democracy: Legal Structure of the Political Process 563, 595 (Foundation 3d ed 2007) (explaining that the case "threw a substantial obstacle in the path of minority plaintiffs" and "virtually shut down" vote dilution suits).
30. See Voting Rights Act Amendments of 1982 § 3, 96 Stat at 134, codified as amended at 42 USCA § 1973.
31. Prior to 1982, the provision prohibited states from using any voting practice "to deny or abridge" minority voting rights. The 1982 Amendment changed § 2's language from active to passive voice, so that it prohibited states from using any voting practice "in a manner which results in a denial or abridgement of minority voting rights. Compare Voting Rights Act of 1965 § 2, 79 Stat at 437, with 42 USCA § 1971. To further emphasize that this grammatical change was meant to eliminate the requirement that plaintiffs show intentional discrimination, Congress also elaborated on what was required for liability. As amended, § 2 now requires plaintiffs to show that, "based on the totality of circumstances . . . the political processes leading to nomination or election in the State or political subdivision are not equally open to participation" by minority voters - a condition satisfied when those voters "have less opportunity than other [voters] . . . to participate in the political process and to elect representatives of their choice." 42 USC §1973(b).
32. See Voting Rights Act, S Rep No 97-417, 97th Cong, 2d Sess 28-29 (1982), reprinted in 1982 USCCAN 177, 204-07: To establish a violation, plaintiffs could show a variety of factors, depending upon the kind of rule, practice, or procedure called into question. Typical factors include: (1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process; (2) the extent to which voting in the elections of the state or political subdivision is racially polarized; (3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; (4) if there is a candidate slating process, whether the members of the minority group have been denied access to that process; (5) the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process; (6) whether political campaigns have been characterized by overt or subtle racial appeals; (7) the extent to which members of the minority group have been elected to public office in the jurisdiction. Additional factors that in some cases have had probative value as part of plaintiffs' evidence to establish a violation are: whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group [and] whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous. While these enumerated factors will often be the most relevant ones, in some cases other factors will be indicative of the alleged dilution. The cases demonstrate, and the Committee intends that there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other.
33. Samuel Issacharoff Polarized Voting and the Political Process: The Transformation of Voting Rights Jurisprudence, 90 Mich L Rev 1833, 1851-52 (1992).
34. Gingles, 478 US at 48-51. Both courts and commentators concur that the doctrinal inquiry became more rule-like by focusing initially on these three factors rather than the nine Senate factors.
35. See McNeil v Springfield Park District, 851 F2d 937, 942 (7th Cir 1988) ("[Gingles] reins in the almost unbridled discretion that section 2 gives the courts, focusing the inquiry so plaintiffs with promising claims can develop a full record.");
36. Issacharoff, Karlan, and Pildes, The Law of Democracy at 618-19 (cited in note 23) ("Are the three Gingles factors more 'objective' in some sense than the Senate Report factors? If they are, is Gingles yet another manifestation of the Court's preference for bright-line tests?").
37. See Johnson v De Grandy, 512 US 997, 1011 (1994) ("[Gingles] clearly declined to hold [the three factors] sufficient in combination, either in the sense that a court's examination of relevant circumstances was complete once the three factors were found to exist, or in the sense that the three in combination necessarily and in all circumstances demonstrated dilution.").
38. See id at 1011-12.
39. See, for example, Thompson v Glades County Board of County Commissioners, 493 F3d 1253, 1260-61 (11th Cir 2007):
40. Although [ ] satisfying the three Gingles requirements is not, by itself, sufficient to establish vote dilution] . . . it would be only the very unusual case in which the plaintiffs can establish the existence of the three Gingles factors but still have failed to establish a violation of § 2 under the totality of circumstances. nited States v Charleston County, 316 F Supp 2d 268, 277 (D SC 2003) ("[I]t will be only the very unusual case in which the plaintiffs can establish the existence of the three Gingles factors but still have failed to establish a violation of § 2 under the totality of the circumstances.").
41. See Issacharoff Karlan, and Pildes, The Law of Democracy at 596 (cited in note 23).
42. See Gingles, 478 US at 90-93 (O'Connor concurring in the judgment).
43. Jenkins v Red Clay Consolidated School District Board of Education, 4 F3d 1103, 1135 (3d Cir 1993).
44. See also Nipper v Smith, 39 F3d 1494, 1525 (11th Cir 1994) ("[R]ather, proof of the second and third Gingles factors will ordinarily create a sufficient inference that racial bias is at work.");
45. Uno v City of Holyoke, 72 F3d 973, 983 (1st Cir 1995) ("We predict that cases will be rare in which plaintiffs establish the Gingles preconditions yet fail on a section 2 claim because other facts undermine the original inference.");
46. NAACP v City of Niagara Falls, 65 F3d 1002, 1019-20 n 21 (2d Cir 1995) (quoting Jenkins);
47. Clark v Calhoun County, 88 F3d 1393, 1396 (5th Cir 1996) (quoting Jenkins and noting that "unlawful vote dilution 'may be readily imagined and unsurprising' where the three Gingles preconditions exist");
48. NAACP v Fordice, 252 F3d 361, 374 (5th Cir 2001) (quoting Clark for the proposition that liability will usually follow in cases where the Gingles factors obtain, and noting that, as a result, any district court holding against liability after finding those preconditions satisfied is required to explain its conclusion with great particularity);
49. Black Political Task Force v Galvin, 300 F Supp 2d 291, 310-11 (D Mass 2004) (citing Jenkins).
50. See Issacharoff, Karlan, and Pildes, The Law of Democracy at 595-711 (cited in note 23);
51. Daniel Hays Lowenstein and Richard L. Hasen, Election Law: Cases and Materials 187-244 (Carolina Academic 3d ed 2004).
52. See, for example, Richard H. Pildes, Book Review, The Politics of Race, 108 Harv L Rev 1359, 1364-89 (1995) (discussing the role of "safe" minority-dominated districting in increasing black representation and in the redistribution of partisan power in the South in the aftermath of Gingles), reviewing Chandler Davidson and Bernard Grofman, eds, Quiet Revolution in the South (Princeton 1994);
53. J. Morgan Kousser, Beyond Gingles: Influence Districts and the Pragmatic Tradition in Voting Rights Law, 27 USF L Rev 551, 561-69 (1993) (arguing that the three Gingles prongs should be read together as there is no meaningful distinction between minority control districts and minority influence districts);
54. Richard H. Pildes and Richard G. Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-district Appearance after Shaw v. Reno, 92 Mich L Rev 483, 493-527 (1993) (analyzing the problem of irregularly shaped districts as derived from the geographical compactness inquiry of the Gingles test and suggesting theoretical foundations for "bizarre district appearance" claims);
55. Katharine I. Butler and Richard Murray, Minority Vote Dilution Suits and the Problem of Two Minority Groups: Can a "Rainbow Coalition " Claim the Protection of the Voting Rights Act?, 21 Pac L J 619, 641-74 (1990).
56. Gingles, 478 US at 87 (O'Connor concurring in the judgment).
57. To better see this possibility, imagine a stylized example in which three officials are elected from a multimember district containing seven hundred white voters and two hundred black voters. As noted above, each voter is permitted to vote for each official to be elected. In other words, if all voters participate, there are nine hundred votes cast for each available seat-seven hundred by white voters and two hundred by black voters. If voting is perfectly racially polarized, it is easy to see that white voters will control the election of all three officials. But this result could change if the multimember district were divided into three single-member districts containing three hundred voters each. If all of the black voters were placed in one such district, they would constitute a majority of that district and could elect a candidate of their choice.
58. See notes 17-20 and accompanying text (discussing the changes over time in case composition); Issacharoff, Karlan, and Pildes, The Law of Democracy at 673-700 (cited in note 23) (same).
59. See Richard H. Pildes, Is Voting Rights Law Now at War with Itself? Social Science and Voting Rights in the 2000s, 80 NC L Rev 1517, 1522 (2002).
60. For evidence of the Court's concern about this possibility, see De Grandy, 512 US at 1016-17 (cautioning that "reading the first Gingles condition in effect to define dilution as a failure to maximize in the face of bloc voting ... causes its own danger" and that "[f]ailure to maximize cannot be the measure of §2").
61. See note 38 and accompanying text.
62. In Hannah Pitkin's classic formulation, "descriptive" representation is concerned with representing the identity of a voter while "substantive" representation is concerned with representing the interests of a voter. See Hannah F. Pitkin, The Concept of Representation 60-61, 209 (California 1972).
63. See, for example, David T. Canon, Race, Redisricting, and Representation: The Unintended Consequences of Black Majority Districts 74 (Chicago 1999);
64. Carol M. Swain, Black Faces, Black Interests: The Representation of African Americans in Congress 229 (Harvard 1995).
65. See Michael Dawson, Behind the Mule: Race and Class in American Politics 104-06 (Princeton 1994);
66. Katherine Tate, From Protest to Politics: The New Black Voters in American Elections 62-65 (Harvard 1993).
67. The potential tradeoff between descriptive and substantive representation, as well as the potential political consequences, were made particularly salient by a few events in the early 1990s. Perhaps the most prominent was the 1994 landslide national election victory for the Republican Party. Before the 1994 election, discussions of the representational tradeoffs and partisan consequences of drawing majority-minority districts were mostly theoretical. But after that election there was considerable coverage in the popular press of the potential connections between Voting Rights Act enforcement and the Republican victory. And within a few years, a large political science literature emerged that was dedicated to measuring these representational and partisan effects. See note 47.
68. See, for example, David Lublin and D. Stephen Voss, Racial Redisricting and Realignment in Southern State Legislatures, 44 Am J Polit Sci 792, 793 (2000);
69. David Lublin, The Paradox of Representation: Racial Gerrymandering and Minority Interests in Congress 36-37, 99 (Princeton 1997).
70. Compare Charles Cameron, David Epstein, and Sharyn O'Halloran, Do Majorityminority Districts Maximize Substantive Black Representation in Congress?, 90 Am Polit Sci Rev 794, 794 (1996).
71. See Cox and Miles, 108 Colum L Rev at 18-49 (cited in note 4).
72. See, for example, Eric A. Posner, Standards, Rules, and Social Norms, 21 Harv J L & Pub Policy 101, 101-07 (1997);
73. Cass R. Sunstein, Problems with Rules, 83 Cal L Rev 953, 953 (1995);
74. Louis Kaplow, Rules versus Standards: An Economic Analysis, 42 Duke L J 557, 621-23 (1992);
75. Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-based Decision-making in Law and in Life 172 (Clarendon 1991);
76. Richard A. Posner, The Problems of Jurisprudence 42 (Harvard 1990);
77. Colin S. Diver, The Optimal Precision of Administrative Rules, 93 Yale L J 65, 65 (1983);
78. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv L Rev 1685, 1687-88 (1976);
79. Isaac Ehrlich and Richard A. Posner, An Economic Analysis of Legal Rulemaking, 3 J Leg Stud 257, 257 (1974);
80. Kenneth C. Davis, Discretionary Justice: A Preliminary Inquiry 216 (Louisiana State 1969).
81. See Sunstein, 83 Cal L Rev at 961 (cited in note 49) (describing a "continuum" of possible systems "from rules to untrammeled discretion, with factors, guidelines, and standards falling in between"); Schauer, Playing by the Rules at 150-51, 158-62 (cited in note 49) (arguing that a preference for rules may be justified as a power allocation device and by a desire to reduce the risk of bias by particular decisionmakers );
82. Posner, Problems of Jurisprudence at 44 (cited in note 49) ("A rule suppresses potentially relevant circumstances of the dispute . . . while a standard gives the trier of fact . . . more discretion because there are more facts to find, weigh and compare.");
83. Davis, Discretionary Justice at 4 (cited in note 49) ("A public officer has discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action or inaction.").
84. See Sunstein, 83 Cal L Rev at 976 (cited in note 49); Kaplow, 42 Duke L J at 609 (cited in note 49).
85. See Gingles, 478 US at 50-51.
86. See Sunstein, 83 Cal L Rev at 961 (cited in note 49).
87. 478 US at 79.
88. See S Rep No 97-417 at 28-29 (cited in note 26).
89. See id at 29.
90. Relatedly, the fact that federal appellate courts must give greater deference to lower court factfindings may also raise the cost of relying on Gingles's rule-like preconditions, as their application is somewhat less fact-intensive than the totality test.
91. Richard A. Posner, How Judges Think 32-34 (Harvard 2008) (describing "dissent aversion").
92. See Max M. Schanzenbach and Emerson H. Tiller, Reviewing the Sentencing Guidelines: Judicial Politics, Empirical Evidence, and Reform, 75 U Chi L Rev 715, 722-24 (2008) (predicting and presenting evidence that a trial judge makes sentencing "departures," a predominantly legal determination, more often when the reviewing appellate court is politically aligned and makes sentencing "adjustments," a more fact-based determination, when the reviewing court is not aligned);
93. Max M. Schanzenbach and Emerson H. Tiller, Strategic Judging under the U.S. Sentencing Guidelines: Positive Political Theory and Evidence, 23 J L, Econ, & Org 24, 26 (2007) (same);
94. Joseph L. Smith and Emerson H. Tiller, The Strategy of Judging: Evidence from Administrative Law, 31 J Legal Stud 61, 70-81 (2002) (finding empirically that as the "strategic instrument" perspective suggests, lower court judges behave strategically in using different agency reversal instruments depending on the alignment of their policy preferences with those of the reviewing court);
95. Emerson H. Tiller and Pablo T. Spiller, Strategic Instruments: Legal Structure and Political Games in Administrative Law, 15 J L, Econ, & Org 349, 349-50 (1999) (arguing that agencies and courts insulate their policy choices from higher-level review by choosing high-decision-cost instruments that discourage further review).
96. A further difference is that, unlike the strategic instrument models in which judges may choose their legal materials, the two steps of the Gingles test are joined by an "and." Rather than picking between the rule-like portion and the standard-like portion, judges can only pick where to express their ideological preferences.
97. Sunstein, 83 Cal L Rev at 993-94 (cited in note 49).
98. Kaplow, 42 Duke L J at 616-17 (cited in note 49) (explaining how "a standard promulgated decades ago can be applied to conduct in the recent past using present understandings" while "rules must be changed, which may require more effort"); Schauer, Playing by the Rules at 140-42 (cited in note 49) (noting that rules offer predictability at the cost of "diminishing [ ] capacity to adapt to a changing future").
99. In this sense, the totality of the circumstances in this test acts as a "trump" on the rule-like portion. Kaplow, 42 Duke L J at 560-61 n 5 (cited in note 49) (describing the concern about "whether rules can be binding" as centering on "whether there is any content to a rule as long as a standard can trump the rule").
100. We do not address in this Article the question of why the Supreme Court chose a framework for analyzing claims under §2 that effectively set an upper boundary on the scope of liability. The reasons are likely many. They may include Justice Brennan's need to cobble together a sufficient number of votes to announce the judgment of the Court; his hope that the Gingles prongs would become seen as nearly sufficient (rather than just necessary) conditions for liability; or the Court's desire to control the discretion of lower court judges. Consider generally Tonja Jacobi and Emerson H. Tiller, Legal Doctrine and Political Control, 23 J L, Econ, & Org 326 (2007) (presenting evidence of the use of legal doctrines as instruments of political control by higher courts);
101. Linda R. Cohen and Matthew L. Spitzer, Solving the Chevron Puzzle, 57 L & Contemp Probs 65 (1994) (suggesting that the Supreme Court adopts different doctrines as signals to lower courts in order to exert policy preferences);
102. Linda R. Cohen and Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and Empirical Test, 69 S CaI L Rev 431 (1996) (offering the same conclusions from a game theoretic perspective).
103. See George L. Priest and Benjamin Klein, The Selection of Disputes for Litigation, 13 J Legal Stud 1, 6-30 (1984) (presenting a selection theory of litigation in which trials result from litigants' comparisons of the costs of settlement and trial and, importantly, the estimated probability of success at trial).
104. See text accompanying note 37.
105. See notes 41-47 and accompanying text.
106. This does assume that judges are interested, at least in part, in substantive representation. See Pitkin, The Concept of Representation at 60-61, 209 (cited in note 43) (elaborating on the difference between substantive and descriptive representation). To the extent that a judge believes that § 2's vote dilution inquiry should concern only descriptive representation, she will obviously be unconcerned if the doctrine threatens to undermine the substantive representation of minority voters. There is little evidence, however, that federal judges are focused solely on descriptive representation in these cases and considerable evidence to the contrary.
107. Judges of both political parties might also more frequently decline to find the preconditions satisfied. But the constraints imposed by the rule-like structures of Gingles's first stage would limit judges' ability to do so. Thus, not only would the rate at which judges conclude that the second stage of Gingles warrants liability decline over time, it would decline more sharply than the rate at which judges found the preconditions not satisfied.
108. We should note that this hypothesis implicitly assumes that judges with different ideological dispositions share similar views about the appropriate theory of minority representation. If Democratic and Republican appointees operate with divergent theories of minority representation, they may respond differently to changing representational consequences. As we explained in Part I, the "representationally counterproductive" changes were ones that threatened to undermine substantive representation relative to descriptive representation. These changes would be more troubling to a judge who cared about the extent to which § 2 promoted the substantive interests of minority voters. A judge who cared only about securing the election of minority officials would be much less concerned about the changes. Thus, were it the case that Democratic appointees cared mostly about substantive representation while Republican appointees cared mostly about descriptive representation, then Democratic appointees would be more likely than Republican appointees to reduce their reliance on the Gingles preconditions in response to the changes in § 2 litigation. Differences in judges' theories of representation would in that case provide an additional reason why Democratic appointees in particular might lose enthusiasm for treating the Gingles preconditions as nearly sole determinants of liability.
109. See Issacharoff Karlan, and Pildes, The Law of Democracy at 596-672, 764-807 (cited in note 23) (surveying some of these changes). See also text accompanying notes 34-35.
110. See, for example, League of United Latin American Citizens (LULAC) v Perry, 999 F2d 831, 853-54 (5th Cir 1994) (en banc) (holding that courts must make an "inquiry into the reasons for, or causes of [ ] electoral losses in order to determine whether they were a product of 'partisan politics' or 'racial vote dilution,' 'political defeat' or 'built-in bias').
111. See, for example, Brief of Amicus Curiae, League of Women Voters of the United States, Supporting Petitioners, Petition for a Writ of Certiorari, Bartlett v Strickland, No 07-689 (filed Dec 21, 2007), available on Westlaw at 2008 WL 2468548 (laying out this disagreement among lower federal courts).
112. See also Issacharoff, Karlan, and Pildes, The Law of Democracy at 637-38 (cited in note 23) ("Initially, most courts . . . either assumed without deciding or . . . explicitly permitted coalition suits under section 2," but that "[i]n more recent decisions . . . several courts of appeals have rejected coalition claims.").
113. Additional examples of the steady constriction include both the line of cases following Shaw v Reno, 509 US 630 (1992) (striking down a redistricting scheme designed to maximize majority-minority districts because the scheme was so bizarre on its face that it was unexplainable on grounds other than race), and League of United Latin American Citizens (LULAC) v Perry, 548 US 399 (2006) (holding that the large geographic distance separating groups in a district, coupled with the disparate needs and interests of these populations, made the district not "compact" for § 2 purposes), the Court's most recent effort to elaborate on the meaning of § 2. In this vein, Rick Pildes has recently argued that "in every single districting case receiving plenary consideration [by the Supreme Court] since Gingles . . . the Court has continuously sought, without interruption, to cabin and confine safe minority districting to a narrower and narrower domain.
114. " Richard H. Pildes, The Decline of Legally Mandated Minority Representation, 68 Ohio St L J 1139, 1140-41 (2007).
115. In this account, the totality of the circumstances prong in Gingles acts as a broad exception to the set of preconditions for liability specified in the first prong. See Kaplow, 42 Duke L J at 560-61 n 5 (cited in note 49) ("When standards can be employed ex post to trump rules, the value of rules might be significantly eroded to the extent their purpose was primarily to constrain adjudicators' discretion for fear of abuse."). On exceptions generally, consider Frederick Schauer, Exceptions, 58 U Chi L Rev 871, 893-99 (1991) (characterizing legal exceptions not as a distinct category but rather as attributes of power to change rules or to avoid their constraints).
116. Detailed information on all of these opinions was initially collected by Ellen Katz and the staff of the Voting Rights Initiative at the University of Michigan Law School. See generally Ellen Katz, et al, Documenting Discrimination in Voting: Judicial Findings under Section 2 of the Voting Rights Act since 1982, 39 U Mich J L Ref 643, 643-772 (2006);
117. Ellen D. Katz, Not Like the South? Regional Variation and Political Participation through the Lens of Section 2, in Ana Henderson, ed, Voting Rights Act Reauthorization of 2006: Perspectives on Democracy, Participation and Power 183, 183-221 (Berkeley 2007). We supplemented the Voting Rights Initiative's initial data collection with detailed information about every judge who adjudicated a § 2 case-information about both the judge's treatment of the case and about the judge's demographic characteristics. For a more detailed explanation of our data collection and the construction of the dataset, see Cox and Miles, 108 Colum L Rev at 18-49 (cited in note 4).
118. Trial panels are part of the § 2 landscape because the federal jurisdictional statute requires that a special three-judge district court be convened whenever a plaintiff challenges the constitutionality of a state legislative or congressional redistricting plan. See 28 USC § 2284 (2000) ("A district court of three judges shall be convened . . . when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.").
119. Because we are interested in how trial courts and appellate panels behave within a legal framework established by the Supreme Court, we excluded en banc circuit court and Supreme Court opinions. For more explanation about the distribution of § 2 litigation across trial judges, trial panels, and appellate panels, see Cox and Miles, 108 Colum L Rev at 9-10 (cited in note 4).
120. The dataset groups the challenged practices into the following categories: at-large electoral systems, redistricting plans, election administration, and other practices. A single decision can encompass challenges to multiple types of practices. Challenges to at-large systems and redistricting plans make up the overwhelming majority of the cases. See id at 10-12.
121. The dataset includes two geographic variables. The first indicates whether the challenged practice was located in the South. The second indicates whether the challenged practice was located in a jurisdiction subject to special oversight under § 5 of the Voting Rights Act. (These jurisdictions are typically called "covered" jurisdictions.) The dataset includes these variables because, as we have discussed elsewhere, it is commonly thought that voting rights litigation is systematically different in the South and in covered jurisdictions. See Cox and Miles, 108 Colum L Rev at 12-13 (cited in note 4).
122. As the discussion thus far makes clear, we use party of the appointing president as a crude proxy for political ideology. Although not reported here in order to conserve space and to ease exposition, we have verified the robustness of our conclusions against other measures of judicial ideology, such as common space scores. For an explanation of common space scores, see Susan W. Johnson and Donald R. Songer, The Influence of Presidential versus Home State Senatorial Preferences on the Policy Output of Judges on United States District Courts, 36 L & Socy Rev 657, 663-65 (2002) (describing the common space score method as one that "tak[es] the data matrix of [congressional] roll call votes and estimate [es] legislator [and president] ideal points and roll call outcomes that maximize the joint probability of the observed votes" in order to then extrapolate them to a measure of ideology of judicial appointees);
123. Micheal W. Giles, Virginia A. Hettinger, and Todd Peppers, Picking Federal Judges: A Note on Policy and Partisan Selection Agendas, 54 Polit Rsrch Q 623, 631 (2001) (designating scores that account for both the ideology of the president and the practice of senatorial courtesy).
124. On the appropriate measures of ideology generally, see, for example, Gregory C. Sisk and Michael Heise, Judges and Ideology: Public and Academic Debates about Statistical Measures, 99 Nw U L Rev 743, 779-90 (2005) (demonstrating from a study of religious freedom cases that both the common space score and the partyof-the-nominating-president methods are largely legitimate and interchangeable proxies for measuring judicial ideology);
125. Lee Epstein and Gary King, The Rules of Inference, 69 U Chi L Rev 1, 87-96 (2002) (criticizing the adoption of the party of the appointing president as a measure of a judge's policy preferences as invalid because "[presidents of the same political party vary in their ideological preferences" and are not necessarily motivated to appoint judges with the same ideology as their own);
126. Daniel R. Pinello, Linking Party to Judicial Ideology in American Courts: A Meta-analysis, 20 Just Sys J 219, 221-43 (1999) (synthesizing numerous studies and concluding that party of the appointing president is a reasonable proxy of judicial ideology).
127. See also Joshua B. Fischman, Decision-making under a Norm of Consensus: A Structural Analysis of Three-judge Panels *1 (unpublished manuscript, 2008), available online at http://ssrn.com/abstract=912299 (visited Aug 29, 2008) (estimating ideology parameters for judges using data from asylum and sex discrimination cases).
128. See Cox and Miles, 108 Colum L Rev at 18-49 (cited in note 4) (identifying substantial differences in the rates at which Democratic and Republican appointees voted in favor of § 2 liability).
129. See text accompanying notes 31-37.
130. See note 34 and accompanying text.
131. See Cox and Miles, 108 Colum L Rev at 13-14 (cited in note 4) (describing the declines in the rate of plaintiff success).
132. See id.
133. See notes 37-17 and accompanying text (explaining the changing representational and political consequences of vote dilution litigation over this period); notes 68-67 and accompanying text (setting out the hypotheses that flow from the changes in the nature of § 2 litigation).
134. We also chose this breakpoint because it is the one we used for all two-period comparisons in our earlier work. See Cox and Miles, 108 Colum L Rev at 23 n 78 (cited in note 4).
135. The opinions in Thomburg v Gingles make it somewhat unsurprising that Republican appointees were initially more reluctant to apply the Gingles framework to vote dilution challenges. The framework was crafted by Justice Brennan, one of the Court's most liberal members. See Gingles, 478 US at 34. In a separate opinion, the considerably more conservative Justice O'Connor rejected Justice Brennan's framework as misguided. See id (O'Connor concurring in the judgment) (complaining that under the Court's framework, "electoral success has [ ] emerged . . . as the linchpin of vote dilution claims, and that the elements of a vote dilution claim create an entitlement to roughly proportional representation within the framework of single-member districts").
136. See note 34 and accompanying text.
137. See Richard H. Pildes, The Decline of Legally Mandated Minority Representation, 68 Ohio St L J 1139, 1141-42, 1158-60 (2007); Pildes, 80 NC L Rev at 1567-73 (cited in note 40).
138. See Pildes, 68 Ohio St L J at 1141-42, 1158-60 (cited in note 91); Pildes, 80 NC L Rev at 1567-73 (cited in note 40).
139. ijct, is an error term. Standard errors are clustered on cases because the votes of judges sitting on the same panel may not be independent.
140. The views of judges could have changed because of ideological drift or because of generational replacement on the courts. A third possibility is that judges' views changed because they acquired new information over time about the consequences of vote dilution litigation. But we believe that it is more appropriate to characterize changes in information as changes in case composition. Analytically, this more cleanly separates internal accounts of the change in judicial behavior from external accounts. Also, as we noted above, we should emphasize that our results remain largely the same when we employ alternative measures of judicial ideology that are somewhat less crude than the party-of-the-appointing-president measure. See note 81. The robustness of the results to alternative ideological proxies lessens the likelihood that the results are driven by generational replacement that changed the ideological composition of the judiciary. Thus, while it might be tempting to think that the post-1994 changes are driven by President Clinton's judicial appointments being more conservative than earlier Democratic appointees, we find no significant evidence of this possibility.
141. See notes 39-47 and accompanying text (summarizing this conventional account).
142. To make it easier to interpret our results, the regression results in Tables 3-5 show the marginal effects for each explanatory variable instead of the regression coefficients. This simply means that the numbers listed in these tables reflect percentage changes in the likelihood of a judge finding liability. To see this, consider, for example, the first row of Table 3, which shows how much more likely a judge was to vote in favor of liability if the "Judge was Democratic appointee." Under our first regression (in Column (1)), the marginal effect was 0.089, which means that a judge was more likely to vote in favor of liability by 8.9 percentage points on average if she was appointed by a Democrat rather than by a Republican.
143. See Cox and Miles, 108 Colum L Rev at 18-49 (cited in note 4). The estimates in the short-er time period are quite similar to the earlier results, and our central conclusions remain unchanged.
144. See, for example, Thomas J. Miles and Cass R. Sunstein, The Real World of Arbitrariness Review, 75 U Chi L Rev 761, 767-68 (2008) (finding ideological voting panel effects in cases of hard look review of EPA and NLRB decisions in the courts of appeals);
145. Thomas J. Miles and Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U Chi L Rev 823, 851-65 (2006) (finding the same in Chevron review cases);
146. Cass R. Sunstein, et al, Are Judges Political? An Empirical Analysis of the Federal Judiciary 17-45 (Brookings 2006) (demonstrating "substantial" panel effects in judicial voting as expressed through "ideological dampening and ideological amplification" across a wide variety of types of cases);
147. Cass R. Sunstein, David Schkade, and Lisa M. Ellman, Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90 Va L Rev 301, 311-30 (2004) (same);
148. Sean Farhang and Gregory Wawro, Institutional Dynamics on the U.S. Court of Appeals: Minority Representation under Panel Decision Making, 20 J L, Econ, & Org 299, 312-21 (2004) (finding panel effects based on gender and ideology in employment discrimination suits);
149. Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 Va L Rev 1717, 1719 (1997) (finding that "a judge's vote . . . is greatly affected by the identity of the other judges sitting on the panel" and that "the party affiliation of the other judges on the panel has a greater bearing on a judge's vote than his or her own affiliation").
150. For a more extensive discussion of the role that panel effects play in § 2 cases, see Cox and Miles, 108 Colum L Rev at 25-29, 40-42 (cited in note 4).
151. See Cox and Miles, 108 Colum L Rev at 29-37, 42-45 (cited in note 4).
152. See Adam B. Cox and Thomas J. Miles, Documenting Discrimination?, 108 Colum L Rev Sidebar 31, 31-32 (June 3, 2008), online at http:// columbialawreview.org/Sidebar/volume/108/31-CoxMiles.pdf (visited Aug 29, 2008) (explaining the methodological problem with drawing strong inferences from the liability patterns associated with these case characteristics).
153. This transformation also suggests that the Supreme Court's decision in Johnson v De Grandy, 512 US 997 (1994), may be more consequential than is often recognized. Superficially, the case simply clarifies that the Gingles factors are necessary but not sufficient preconditions to liability. See id at 1011-12. In light of our evidence, however, one might read the Court's decision in De Grandy as an important indication of the Court's own understanding of the growing disconnect between the Gingles preconditions and minority vote dilution, or perhaps even as a signal to lower courts about the declining importance of the preconditions.
154. See Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 §5, Pub L No 109-246, 120 Stat 577, 580, codified at 42 USCA § 1973c. See also Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L J 174, 207-08 (2007)
155. (noting that one of the two major changes instituted by the Act was to overturn Georgia v Ashcroft, 539 US 461 (2003), by requiring "denials of preclearance when voting laws 'diminish[] the ability' of minorities 'to elect their preferred candidate of choice'").
156. See Pender County v Bartlett, 649 SE2d 364 (NC 2007),
157. cert granted as Bartlett v Strickland, 128 S Ct 1648 (2008) (calendared for October Term 2008). The question presented in the case is "[w]hether a racial minority group that constitutes less than 50% of a proposed district's population can state a vote dilution claim under Section 2 of the Voting Rights Act."
158. Petition for a Writ of Certiorari, Bartlett v Strickland, No 07-689, *i (filed Nov 21, 2007), available on Westlaw at 2007 WL 4207130. There is currently some ambiguity about whether the first prong creates such an obligation. See, for example, Pildes, 80 NC L Rev at 1556-63 (cited in note 40).
159. This reification may be of considerable concern to the Court, as it has often emphasized that minority vote dilution jurisprudence was designed in part as a transitional regime rather than as a system that creates permanently safe sinecures for minority voters. See, for example, De Grandy, 512 US at 1020: [f]or all the virtues of majority-minority districts as remedial devices, they rely on ... the 'politics of second best'. . . . [S]ociety's racial and ethnic cleavages sometimes necessitate [such districts] . . . but minority voters are not immune from the obligation to pull, haul, and trade to find common political ground, the virtue of which is not to be slighted in applying a statute meant to hasten the waning of racism in American politics.
160. 531 US 98 (2000) (per curiam).
161. Id at 103-11. See also David Cole, The Liberal Legacy of Bush v. Gore, 94 Georgetown L J 1427, 1427-30 (2006) (summarizing the criticisms of the decision levied in law journals and the mass media).
162. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 121 (Harvard 1980).
163. See also Heather K. Gerken, The Costs and Causes of Minimalism in Voting Cases: Baker v. Carr and Its Progeny, 80 NC L Rev 1411, 1441 (2002) ("[B]right-line rules may [ ] result in more wide-spread judicial interference in the political process than broad theories because only the latter offer grounds for discerning sensible limiting principles and making contextual judgments regarding application of the equality norm.").