Making sense of section 2: Of biased votes, unconstitutional elections, and common law statutes

University of Pennsylvania Law Review

Volumn 160, Issue 2, 2011, Pages 377-457

  Elmendorf, Christopher S ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84855231362     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
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References (329)

1. Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. §§ 1973-1973bb-1 (2006)).
2. VRA § 5, 42 U.S.C. § 1973 (2006).
3. Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, sec. 3, § 2, 96 Stat. 131, 134 (codified at 42 U.S.C. § 1973 (2006)).
4. Thornburg v. Gingles, 478 U.S. 30, 91 (1986) (O'Connor, J., concurring);
5. see also Michael J. Pitts, The Voting Rights Act and the Era of Maintenance, 59 ALA. L. REV. 903, 920-22 (2008) (describing the "sea-change in descriptive representation" that followed "the amendment of § 2").
6. For a contemporaneous account of this era of Section 2 litigation, see Samuel Issacharoff, Polarized Voting and the Political Process: The Transformation of Voting Rights Act Jurisprudence, 90 MICH. L. REV. 1833, 1845-53 (1992).
7. Gingles, 478 U.S. at 44 n.8.
8. See Richard H. Pildes, The Decline of Legally Mandated Minority Representation, 68 OHIO ST. L.J. 1139, 1140-41 (2007) (noting that voting rights plaintiffs lost every Section 2 case that received "plenary consideration"
9. between Gingles and League of United Latin American Citizens v. Perry (LULAC), 548 U.S. 399 (2006)). Plaintiffs are also faring less well in the lower courts.
10. See Adam B. Cox & Thomas J. Miles, Judicial Ideology and the Transformation of Voting Rights Jurisprudence, 75 U. CHI. L. REV. 1493, 1526 (2008) (showing that, since 1994, Democratic judges have become less likely to find liability in Section 2 cases where the so-called Gingles test is satisfied).
11. See infra text accompanying notes 74-83 and 122-24 (explaining LULAC's departure from the commonplace understanding of what constitutes vote dilution).
12. See Bartlett v. Strickland, 129 S. Ct. 1231, 1246 (2009) (holding that a vote dilution claim under Section 2 may not be brought by minority plaintiffs unless the plaintiffs are part of a racial community that could comprise a numerical majority of a compact single-member district);
13. LULAC, 548 U.S. at 445 (finding that Section 2 claims cannot be predicated on remedies that would merely increase minority influence over election outcomes);
14. Holder v. Hall, 512 U.S. 874, 881-85 (1994) (holding that plaintiffs seeking to replace a single-commissioner form of county government with a five-member commission elected from separate districts cannot bring the challenge under Section 2).
15. For example, it is open for the Court to hold: (1) that vote dilution claims are categorically precluded if twenty percent of majority-group voters support minoritypreferred candidates (for intimations to this effect, see Bartlett, 129 S. Ct. at 1244); (2) that Section 2 plaintiffs must prove that their injury resulted from intentional racial discrimination by state actors or majority-group voters
16. cf. Holder, 512 U.S. at 880, which states that a single-commissioner form of county government cannot be challenged as dilutive under Section 2 for want of a "reasonable alternative practice" to serve "as a benchmark against which to measure the existing voting practice"; or (7) that politically cohesive minority communities may be deprived of the opportunity to elect their candidates of choice so long as the state provides sufficient offsetting opportunities for political influence
17. cf. Bartlett, 129 S. Ct. at 1248, which suggests that legislatures seeking to comply with Section 2 may substitute other forms of minority political opportunity for "majority-minority" districts.
18. Cf. Adam B. Cox & Thomas J. Miles, Judging the Voting Rights Act, 108 COLUM. L. REV. 1, 21 (2008) (finding that judges appointed by Democrats are more likely to find liability in Section 2 cases than those appointed by Republicans).
19. Over the years there have been a number of noteworthy attempts to defend Section 2 (and in the process to explain or remake it). See, e.g., LANI GUINIER, THE TYRANNY OF THE MAJORITY (1994); Kathryn Abrams, "Raising Politics Up": Minority Political Participation and Section 2 of the Voting Rights Act, 63 N.Y.U. L. REV. 449 (1988);
20. Heather K. Gerken, Understanding the Meaning of an Undiluted Vote, 114 HARV. L. REV. 1663 (2001);
21. Pamela S. Karlan, Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution, 24 HARV. C.R.-C.L. L. REV. 173 (1989)
22. Pamela S. Karlan, Two Section Twos and Two Section Fives: Voting Rights and Remedies After Flores, 39 WM. & MARY L. REV. 725 (1998)
23. Michael Pitts, Congressional Enforcement of Affirmative Democracy Through Section 2 of the Voting Rights Act, 25 N. ILL. L. REV. 185 (2005). But, in contrast to my account, none of these defenses of Section 2 accepts the jurisprudential premises of conservative critics concerning such essential matters as the "intent requirement" for establishing an equal protection violation, the scope of the Fifteenth Amendment, and the limits on Congress's remedial power under the Fourteenth and Fifteenth Amendments.
24. See generally ABIGAIL THERNSTROM, VOTING RIGHTS-AND WRONGS 73-110 (2009) (reviewing and critiquing the Supreme Court's varying interpretations of Section 2).
25. VRA § 5, 42 U.S.C. § 1973(b) (2006);
26. see also, e.g., LULAC, 548 U.S. at 425-27.
27. Johnson v. De Grandy, 512 U.S. 997, 1020 (1994). Liberal and conservative jurists share the view that this is the ultimate objective of the VRA.
28. Shaw v. Reno, 509 U.S. 630, 657 (1993).
29. City of Boerne v. Flores, 521 U.S. 507, 520 (1997).
30. See, e.g., Ellen D. Katz, Leave It up to Congress, NAT'L L.J., Apr. 13, 2009, at 23 (suggesting that the Supreme Court in effect remand Section 5 of the VRA to Congress, so that Congress may reconsider it in light of Obama's election);
31. Abigail Thernstrom & Stephan Thernstrom, Op-Ed, Racial Gerrymandering Is Unnecessary, WALL ST. J., Nov. 11, 2008, at A15 (arguing on the basis of Obama's election that the drawing of majority-minority districts is not necessary for minority candidates to be elected).
32. This is only a point about appearances; it is not my view that the VRA is actually anachronistic in the wake of Obama's election. Cf. Kristen Clarke, The Obama Factor: The Impact of the 2008 Presidential Election on Future Voting Rights Act Litigation, 3 HARV. L. & POL'Y REV. 59, 84-85 (2009) (arguing that Obama's election does not obviate the need for careful, localized judicial inquiries into racial voting patterns).
33. Cf. Ellen D. Katz, Engineering the Endgame, 109 MICH. L. REV. 349, 379-85 (2010) (arguing that the Supreme Court's general response to racial progress has been to terminate rather than modulate remedies for racial discrimination).
34. VRA § 5, 42 U.S.C. § 1973c (2006).
35. See Georgia v. Ashcroft, 539 U.S. 461, 465-66 (2003) (explaining the concept of retrogressive effect). Section 5 also guards against certain forms of intentional discrimination.
36. See Michael J. Pitts, Redistricting and Discriminatory Purpose, 59 AM. U. L. REV. 1575, 1582-90 (2010) (exploring discriminatory purpose within the meaning of Section 5 as amended in 2006).
37. Covered jurisdictions are required to submit all changes to their election laws to the Department of Justice for preclearance or to seek approval from the District Court for the District of Columbia. 42 U.S.C. § 1973c(a).
38. VRA § 2, 42 U.S.C. § 1973(b).
39. S. REP. NO. 97-417, at 30 (1982).
40. See Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2511-13 (2009) (explaining at length the federalism basis for questioning the constitutionality of Section 5).
41. These guiding norms should allay the concerns of critics, like Justice Thomas, who assert that insofar s Section 2 reaches anything beyond barriers to casting a valid, duly counted ballot, nothing will limit it except the "political imagination" of judges. Holder v. Hall, 512 U.S. 874, 911-12 (1994) (Thomas, J., concurring)
42. (quoting Lani Guinier, The Representation of Minority Interests: The Question of Single-Member Districts, 14 CARDOZO L. REV. 1135, 1137 (1993)).
43. Bartlett v. Strickland, 129 S. Ct. 1231, 1249 (2009)
44. (quoting Johnson v. De Grandy, 512 U.S. 997, 1020 (1994)) (internal quotation marks omitted).
45. U.S. 55, 60-63, 65-70 (1980), superseded by statute, Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, 96 Stat. 134
46. as recognized in Thornburg v. Gingles, 478 U.S. 30 (1986).
47. Voting Rights Act Amendments, sec. 3, § 2, 96 Stat. at 134 (codified at 42 U.S.C. § 1973 (2006)).
48. White v. Regester, 412 U.S. 755, 766 (1973) (requiring plaintiffs to show that "the political processes leading to nomination and election were not equally open to participation by the group in question-that its members had less opportunity than did other residents . . . to participate in the political processes and to elect legislators of their choice");
49. Goosby v. Town Bd. of Hempstead, 180 F.3d 476, 500 (2d Cir. 1999) (Leval, J., concurring).
50. Whitcomb v. Chavis, 403 U.S. 124, 149 (1971).
51. Senator Hatch's line of attack figures prominently in a leading election law casebook. SAMUEL ISSACHAROFF ET AL., THE LAW OF DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL PROCESS 572-77 (3d ed. 2007).
52. see also Thomas M. Boyd & Stephen J. Markman, The 1982 Amendments to the Voting Rights Act: A Legislative History, 40 WASH. & LEE L. REV. 1347, 1388-93 (1983).
53. (quoting White v. Regester, 412 U.S. 755, 766 (1973))). 403 U.S. 124 (1971).
54. The leading pre-Bolden case, which derived these factors from the Supreme Court's opinion in White, is Zimmer v. McKeithen, 485 F.2d 1297, 1305-07 (5th Cir. 1973) (en banc).
55. See, e.g., Farrakhan v. Gregoire, 590 F.3d 989, 1005-07 (9th Cir.)
56. Simmons v. Galvin, 575 F.3d 24, 28-29 (1st Cir. 2009);
57. Stewart v. Blackwell, 444 F.3d 843, 877-79 (6th Cir. 2006)
58. vacated en banc as moot, 473 F.3d 692 (6th Cir. 2007);
59. Burton v. City of Belle Glade, 178 F.3d 1175, 1196-1200 (11th Cir. 1999);
60. Common Cause/Ga. v. Billups, 406 F. Supp. 2d 1326, 1372-75 (N.D. Ga. 2005);
61. Common Cause v. Jones, 213 F. Supp. 2d 1106, 1110 (C.D. Cal. 2001);
62. Harris v. Siegelman, 695 F. Supp. 517, 528 (M.D. Ala. 1988).
63. See Chisom v. Roemer, 501 U.S. 380, 397-98 (1991) (asserting that Section 2 "does not create two separate and distinct rights"; rather, plaintiffs "must allege an abridgment of the opportunity to participate in the political process and to elect representatives of one's choice").
64. See Ortiz v. City of Phila., 28 F.3d 306, 314-15 (3d Cir. 1994) (relying on Chisom for the proposition that the Voting Rights Act requires claimants to prove that minorities "had less opportunity both . . . to participate in the political process and . . . to elect representatives of their choice");
65. see also Roberts v. Wamser, 883 F.2d 617, 628-30 (8th Cir. 1989) (Heaney, J., dissenting) (analyzing, prior to Chisom, a Section 2 challenge to voting technology in terms of representational impacts);
66. Sw. Voter Registration Educ. Project v. Shelley, 278 F. Supp. 2d 1131, 1141-42 (C.D. Cal. 2003) (holding, without reference to Chisom, that a dilution showing is necessary for a Section 2 challenge to punch-card voting machines).
67. For a review and analysis of this litigation, see Daniel P. Tokaji, The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 S.C. L. REV. 689, 709-18 (2005).
68. Karlan, Maps and Misreadings, supra note 12, at 179-82 (arguing that Section 2 should be understood to protect "civic inclu representasion" of minorities at both the electoral and governing stages of the democratic enterprise).
69. Except in one respect: the courts have rejected Abrams's suggestion in "Raising Politics Up," supra note 12, at 467-78, that Section 2 protects electoral districts (or potential electoral districts) in which minority voters have influence but not the ability to elect their ideally preferred representative.
70. See League of United Latin Am. Citizens v. Perry (LULAC) , 548 U.S. 399, 446 (2006) (plurality opinion).
71. Bartlett v. Strickland, 129 S. Ct. 1231, 1248-49 (2009). The Court noted the relevance of influence and crossover districts to "minority voting strength" and advised that crossover districts-and, by implication, influence districts-"can be evidence . . . of equal political opportunity under the § 2 totality-of-the-circumstances analysis."
72. See, e.g., LULAC, 548 U.S. at 436 ("We . . . compar[e] the percentage of total districts that are Latino opportunity districts with the Latino share of the citizen votingage population.");
73. De Grandy, 512 U.S. at 1013-14 & n.11 ("'Proportionality' as the term is used here links the number of majority-minority voting districts to minority members' share of the relevant population.").
74. See, e.g., Thornburg v. Gingles, 478 U.S. 30, 83-89 (1986) (O'Connor, J., concurring) (noting, as one possible approach to the vote dilution inquiry, that "a court could posit some alternative districting plan as a 'normal' or 'fair' electoral scheme and attempt to calculate how many candidates preferred by the minority group would probably be elected under that scheme"). Rick Pildes interprets Justice Kennedy's opinion for the Court in LULAC as resting implicitly on a convention-based benchmark.
75. see also Gonzalez v. City of Aurora, 535 F.3d 594, 599-600 (7th Cir. 2008) (Easterbook, J.) (proposing to measure the dilutive effect of a challenged system of electoral districts by comparing the number of majority-minority districts in the actual plan to the typical number found in randomized, computer-generated maps).
76. See infra text accompanying notes 72-83. For the leading statement of the intentbased benchmark in the lower courts, see Nipper v. Smith, 39 F.3d 1494, 1515 (11th Cir. 1994) (en banc).
77. see Heather K. Gerken, Understanding the Right to an Undiluted Vote, 114 HARV. L. REV. 1663, 1675-76 (2001).
78. This idea also surfaces in Johnson v. De Grandy. See 512 U.S. 997, 1019 (1996) (rejecting a proposed proportionality "safe harbor" because it "rest[s] on an unexplored premise of highly suspect validity: that . . . the rights of some minority voters under § 2 may be traded off against the rights of other members of the same minority class").
79. Cf. Pildes, supra note 7, at 1146-47 (arguing that Justice Kennedy in LULAC understood Section 2 to protect "naturally arising" safe minority districts). Other commentators have understood this case somewhat differently.
80. See, e.g., Ellen D. Katz, Reviving the Right to Vote, 68 OHIO ST. L.J. 1163, 1172-73 (2007) (reading LULAC as refocusing Section 2 jurisprudence on political competition).
81. (quoting S. REP. NO. 97-471, at 28-29 (1982));
82. See, e.g., ISSACHAROFF ET AL.,supra note 45, at 595-711;
83. DANIEL H. LOWENSTEIN & RICHARD L. HASEN ELECTION LAW: CASES AND MATERIALS 178-81 (2d ed. 2001).
84. Johnson v. De Grandy, 512 U.S. 997, 1020 (1994). That this is the VRA's ultimate objective is a point of agreement among liberal and conservative justices.Though the majority opinion in De Grandy was authored by Justice Souter and joined by the Court's liberal faction, De Grandy's characterization of the VRA's ultimate purpose was later quoted by Justice O'Connor in a majority opinion joined by the Court's conservative wing.
85. Georgia v. Ashcroft, 539 U.S. 461, 481 (2003);
86. see also Holder v. Hall, 512 U.S. 874, 906-07 (1994) (Thomas, J., concurring in judgment) (arguing that the Court's interpretations of Section 2 have not advanced this purpose).
87. See Miller v. Johnson, 515 U.S. 900, 927 (1995) ("The [Voting Rights] Act . . . has been of vital importance in eradicating invidious discrimination from the electoral process and enhancing the legitimacy of our political institutions. . . . Th[is] end is neither assured nor well served, however, by carving electorates into racial blocs.").
88. Holder, 512 U.S. at 906-08 (Thomas, J., concurring).
89. See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007) (plurality opinion);
90. Gratz v. Bollinger, 539 U.S. 244, 271-72 (2003);
91. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 294-99 (1978).
92. See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 282-83 (1986).
93. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 499 (1989).
94. Consider in this regard Justice Alito's dystopic portrayal of racial machine politics in Ricci v. DeStefano, 129 S. Ct. 2658, 2683-89 (2009) (Alito, J., concurring).
95. The leading work on this phenomenon in U.S. elections is by Zoltan Hajnal. See, e.g., ZOLTAN L. HAJNAL, CHANGING WHITE ATTITUDES TOWARD BLACK POLITICAL LEADERSHIP (2007) (discussing the effect of an election of a black mayor on whites' racial attitudes and voting patterns).
96. The most nalytically powerful demonstration of depolarization effects from the election of out-group officials is Lori Beaman et al., Powerful Women: Does Exposure Reduce Bias?, 124 Q.J. ECON. 1497, 1498-99 (2009), which takes advantage of the natural experiment created by India's practice of randomly assigning certain village constituency seats to female candidates for a period of years.
97. See also Rikhil R. Bhavnani, Do Electoral Quotas Work After They Are Withdrawn? Evidence from a Natural Experiment in India, 103 AM. POL. SCI. REV. 23, 34 (2009) (showing that temporary quotas have lasting effects on the electability of out-group (female) candidates). For other studies that speak to "depolarization effects" of representation by out-group officeholders
98. see Kareem U. Crayton, Beat 'Em or Join 'Em? White Voters and Black Candidates in Majority-Black Districts, 58 SYRACUSE L. REV. 547, 549, 565 (2008) (finding that white support for a black-preferred incumbent in South Carolina's only majorityminority congressional district is "consistently higher than one would expect in a racially polarized climate");
99. Susan E. Howell & William P. McLean, Performance and Race in Evaluating Minority Mayors, 65 PUB. OPINION Q. 321, 326, 331, 335-36 (2001) (concluding that white support for an incumbent black mayor in New Orleans can be explained by performance as well as by racial variables with performance taking on increasing importance over time);
100. Baodong Liu, Deracialization and Urban Racial Contexts, 38 URB. AFF. REV. 572, 580 (2003) (finding that in biracial elections in New Orleans, whites are much more supportive of black incumbents than black challengers);
101. Robert M. Stein et al., Voting for Minority Candidates in Multiracial/Multiethnic Communities, 41 URB. AFF. REV. 157, 177 (2005) (finding that race-biased voting is more common when minority challengers run for office but that voting in elections with a minority incumbent is instead driven by perceptions of the incumbent's job performance).
102. Cf. Susan E. Howell & Huey L. Perry, Black Mayors/White Mayors: Explaining Their Approval, 68 PUB. OPINION Q. 32, 50 (2004) (finding that perceptions of performance explain more variation in mayoral approval than race);
103. Tasha S. Philpot & Hanes Walton, Jr., One of Our Own: Black Female Candidates and the Voters Who Support Them, 51 AM. POL. J. SCI. 49, 59 (2007) (finding that, unlike black female candidates without experience in office, similar candidates with previous experience receive "equal levels of support among whites relative to blacks").
104. See DAVID T. CANON, RACE, REDISTRICTING, AND REPRESENTATION: THE UNINTENDED CONSEQUENCES OF BLACK MAJORITY DISTRICTS 3 (1999) ("One significant effect of . . . ideological diversity among black candidates is to give a centrist coalition of moderate white and black voters the power to elect the black candidate of their choice in many [VRA] districts." (citation omitted));
105. Baodong Liu, Whites as a Minority and the New Biracial Coalition in New Orleans and Memphis, 39 PS: POL. SCI. & POL. 69, 73-74 (2006) (finding that successful black candidates in mayoral elections made efforts to attract white voters by "emphasiz[ing] the value of racial conciliation");
106. Johnson v. De Grandy, 512 U.S. 997, 1020 (1994).
107. See Bartlett v. Strickland, 129 S. Ct. 1231, 1243-46 (2009) (concluding that Section 2 claims cannot be brought by minority voters who would be able to elect their candidate of choice in the proposed remedial district but only in coalition with majority-group voters);
108. League of United Latin Am. Citizens v. Perry (LULAC) , 548 U.S. 399, 445-46 (2006) (plurality opinion) (stating that Section 2 claims cannot be predicated on "the failure to create . . . influence district[s]" in which the minority group could determine the "outcome between some candidates, none of whom is their candidate of choice").
109. see Christopher S. Elmendorf, Refining the Democracy Canon, 95 CORNELL L. REV. 1051, 1099-103 (2010).
110. For a thoughtful look at how the conservative wing of the Court views the constitutionalityof Section 2, see generally Luis Fuentes-Rohwer, The Future of Section 2 of the Voting Rights Act in the Hands of a Conservative Court, 5 DUKE J. CONST. LAW & PUB. POL'Y 125 (2010).
111. See De Grandy, 512 U.S. at 1031 (Kennedy, J., concurring) (emphasizing that no constitutional claims were before the Court);
112. Chisom v. Roemer, 501 U.S. 380, 418 (1991) (Kennedy, J., dissenting) ("I write to add only that the [Section 2] issue before the Court is one of statutory construction, not constitutional validity.").
113. See Bartlett, 129 S. Ct. at 1245, 1246-48;
114. LULAC, 548 U.S. at 445-46.
115. LULAC, 548 U.S. at 405.
116. LULAC, 548 U.S. at 405.
117. For related arguments that Section 2 is vulnerable on Boerne grounds-at least from the point of view of conservative jurists-see Fuentes-Rohwer, supra note 105, at 134-38
118. which explains the challenge of justifying amended Section 2 as a remedial measure against constitutional violations, and Douglas Laycock, Conceptual Gulfs in City of Boerne v. Flores, 39 WM. & MARY L. REV. 743, 749-50 (1998)
119. which comments on similarities between the congressional politics of enacting the Religious Freedom Restoration Act (RFRA) and those of amending Section 2. 112 521 U.S. at 515-16.
120. See S. REP. NO. 97-417, at 39 (1982).) It is widely thought, however, that the Court will extend Boerne's congruence and proportionality requirement to the Fifteenth Amendment when presented with a case that forces the question.
121. But see Nw. Austin Mun. Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221, 241-46 (D.D.C. 2008)
122. (holding that South Carolina v. Katzenbach's, 383 U.S. 301 (1965), rationality standard rather than Boerne's congruence and proportionality should govern Fifteenth Amendment cases)
123. vacated on other grounds, 129 S. Ct. 2504 (2009). In any event, Section 2 may need the Fourteenth Amendment as its anchor insofar as it reaches injuries beyond simple vote denial, as it remains disputed whether the Fifteenth Amendment goes any further.
124. See City of Mobile v. Bolden, 446 U.S. 55, 61-65 (1980) (plurality opinion) (undertaking to limit the Fifteenth Amendment to racially discriminatory vote denial).
125. This is because the rule encourages political actors to coalesce into two major coalitions (political parties), which compete for the affections of the median voter. See generally DENNIS C. MUELLER, PUBLIC CHOICE III 230-301 (2003).
126. Proponents of Section 2 have, to date, mustered two kinds of responses to the Boerne objection. One strategy, advanced by Pamela Karlan, is to explain how the redesign of electoral systems to increase minority representation can serve both to compensate for past constitutional violations, such as discrimination in education reflected in low voter turnout, and to prevent future constitutional violations, such as the adoption of racist policies by an all-white governing body. See Karlan, Two Section Twos, supra note 12, at 738-40.
127. The other strategy, advanced by Mike Pitts and subsequently elaborated by Luke McLoughlin, emphasizes the similarity between the unstructured, "totality of circumstances" inquiry under Section 2 and the Supreme Court's inference of intentional discrimination via a similar analysis in Rogers v. Lodge, 458 U.S. 613 (1982)
128. a constitutional vote dilution case decided two years after Bolden. Luke P. McLoughlin, Section 2 of the Voting Rights Act and City of Boerne: The Continuity, Proximity, and Trajectory of Vote Dilution Standards, 31 VT. L. REV. 39 (2006);
129. Pitts's and McLaughlin's "it's like Rogers" defense of Section 2 is also problematic. For one, it is not at all clear that the conservative center believes that Rogers was rightly decided and would follow it today. Rogers was a split decision, and the dissenters-who were in the majority in Bolden-thought the Rogers majority opinion was flatly inconsistent with Bolden. See Rogers, 458 U.S. at 628-29 (Powell, J., dissenting). Second, in Rogers the constitutional harm that the district court purported to undo was clear in principle, even if disputed on the facts of the case. See id. at 621 (majority opinion) ("[T]he ultimate issue in a case alleging unconstitutional dilution of the votes of a racial group is whether the districting plan under attack exists because it was intended to diminish or dilute the political efficacy of that group."
130. (emphasis added) (quoting Nevett v. Sides, 571 F.2d 209, 226 (5th Cir. 1978) (internal quotations marks omitted))). But under the Section 2 results test, there is not, as yet, any requirement that plaintiffs identify particular constitutional injuries for the court to cure or abate.
131. Boerne, 521 U.S. at 532.
132. Johnson v. De Grandy, 512 U.S. 997, 1020 (1994).
133. See William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361, 1364-69 (1988).
134. For the most recent statement of this position, see Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 899-900 (2007).
135. See Goosby v. Town Bd. of Hempstead, N.Y., 180 F.3d 476, 501 (2d Cir. 1999) (Leval, J., concurring) (arguing that, by leaving open "inevitable questions" about Section 2, Congress "enter[ed] into a partnership with the courts, assigning them the task of supplying answers based on common sense and good judgment in giving effect to the incompletely formulated intentions and apparent compromises of the statute").
136. For an early and influential statement of this view, see Judge Tjoflat's plurality opinion in Nipper v. Smith, 39 F.3d 1494, 1524 (11th Cir. 1994). For subsequent applications from the above-mentioned circuits
137. see Teague v. Attala Cnty., 92 F.3d 283, 295 (5th Cir. 1996)
138. S. Christian Leadership Conference of Ala. v. Sessions, 56 F.3d 1281, 1293 (11th Cir. 1995)
139. and Uno v. City of Holyoke, 72 F.3d 973, 983 (1st Cir. 1995).
140. See United States v. Blaine Cnty., 363 F.3d 897, 912 n.21 (9th Cir. 2004) (noting that liability under Section 2 attaches only if the plaintiff establishes a "causal connection" to racial discrimination, while holding that a showing of "racial bloc voting" (in the manner of Gingles) establishes the requisite connection).
141. Whether Blaine County survives Farrakhan v. Gregoire, 623 F.3d 990 (9th Cir. 2010) (en banc), is an open question. The Farrakhan court held that an innocently motivated felony disqualification for voting could not be invalidated under Section 2 absent a strong showing of intentional racial discrimination in the state's criminal justice system. Thanks to Justin Levitt for raising this question.
142. Sanchez v. Colorado, 97 F.3d 1303, 1321 (10th Cir. 1996) (reversing the district court, which after finding that race-correlated differences in candidate preferences were due to racial disparities in political party identification rather than racial prejudicies, denied the Section 2 claim).
143. Ortiz v. City of Phila., 28 F.3d 306, 314-15 (3d Cir. 1994). Under this approach, plaintiffs must show that removal of the participation barrier would, for example, enable the minority community to elect a larger number of its preferred representatives.
144. See, e.g., Hayden v. Pataki, 449 F.3d 305, 346-48, 358-59 (2d Cir. 2006) (en banc) (Parker, J., dissenting);
145. Johnson v. Governor of Fla., 405 F.3d 1214, 1240 (11th Cir. 2005) (en banc) (Wilson, J., dissenting);
146. Farrakhan v. Washington, 338 F.3d 1009, 1016 (9th Cir. 2003);
147. Baker v. Pataki, 85 F.3d 919, 939-40 (2d Cir. 1996) (en banc) (Feinberg, J., writing for an equally divided court in favor of affirmance) (5-5 decision).
148. See, e.g., Hayden, 449 F.3d at 329-36 (en banc) (Walker, J., concurring);
149. Johnson, 405 F.3d at 1229 (majority opinion);
150. Muntaqim v. Coombe, 366 F.3d 102, 126 (2d Cir. 2004)
151. vacated en banc, 449 F.3d 371 (2006);
152. Farrakhan v. Washington, 359 F.3d 1116, 1121 (9th Cir. 2004) (Kozinski, J., dissenting from denial of rehearing en banc);
153. Baker, 85 F.3d at 930 (Mahoney, J., writing for an equally divided court in favor of reversal).
154. To be sure, some of the judges who have made the constitutional avoidance argument treat felony disqualifications for voting as a uniquely special prerogative of the states, by dint of their recognition in Section 2 of the Fourteenth Amendment. See, e.g., Farrakhan, 359 F.3d at 1121 (Kozinski, J., dissenting from denial of rehearing en banc). But the Constitution's recognition that some felon disenfranchisement laws are permissible hardly implies that Congress cannot exercise its enforcement power under the Fourteenth and Fifteenth Amendments to reform those felony disqualifications that are themselves unconstitutional (because they were enacted or are maintained for improper reasons) or that give electoral effect to other unconstitutionally discriminatory state action.
155. See, e.g., Ortiz, 28 F.3d at 315-17 (suggesting that registrants purged for nonvoting are at fault for failing to re-register);
156. Wesley v. Collins, 791 F.2d 1255, 1261-62 (6th Cir. 1986) (rejecting a felon disenfranchisement challenge under Section 2 on the theory that the voter is at fault for committing the crime).
157. The Supreme Court regards the Senate Report as the "authoritative source for legislative intent" with respect to Section 2. See Thornburg v. Gingles, 478 U.S. 30, 43 n.7 (1986).
158. See S. REP. NO. 97-417, at 2, 15-16, 19-24, 27-31 (1982) ("The proposed results test was developed by the Supreme Court and followed in nearly two dozen cases by the lower federal courts.").
159. see also Zimmer v. McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973) (en banc).
160. The Supreme Court's decision in City of Mobile v. Bolden applies the same "discriminatory intent" requirement to vote dilution claims. 446 U.S. 55, 66-74 (1980).
161. See generally RICHARD L. HASEN, THE SUPREME COURT AND ELECTION LAW: JUDGING EQUALITY FROM BAKER V. CARR TO BUSH V. GORE 47-72 (2003) (explaining, and defending, the Court's initial use of murky standards when constitutionalizing political rights).
162. On constitutional elaboration as a process akin to common law adjudication, see generally David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996).
163. See generally Christopher S. Elmendorf, Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities, 156 U. PA. L. REV. 313 (2007) (showing that a nominal balancing test for regulatory burdens on political rights has been used to create a series of bright-line rules).
164. see Boyd & Markman, supra note 46, at 1388-94.
165. S. REP. NO. 97-417, at 29 (1982).
166. Guy-Uriel E. Charles & Luis Fuentes-Rohwer, The VRA in Winter: The Death of a Superstatute (Oct. 2011) (unpublished manuscript) (on file with author).
167. The Senate Report provides a concise restatement of the factors. S. REP. NO. 97-417, at 28-29.
168. See White, 412 U.S. at 767, 769-770.
169. Zimmer v. McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973). The opinion adds, unhelpfully, that "[t]he fact of dilution is established upon proof of the existence of an aggregate of these factors." Id. 164 See supra notes 109-14 and accompanying text.
170. see also Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 HARV. L. REV. 1274, 1281-97 (2006) (synthesizing the manageablestandards jurisprudence and discussing the relevance of political stakes).
171. Vieth, 541 U.S. at 307 (Kennedy, J., concurring in judgment).
172. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472-76 (2001) (rejecting the view that the "intelligible principle" standard requires Congress to establish "determinate criteria" for agencies to follow when exercising delegated authority).
173. Per Vieth, the manageable standards prong of the political question doctrine is anchored in precisely the same separation of powers concerns. 541 U.S. at 301-05 (plurality opinion). A statute that instructed the courts to decide political cases on the basis of a muddy legal standard, while disallowing judicial elaboration of that standard into something more normatively precise and/or rule-like, would therefore raise serious constitutional questions.
174. See Elmendorf, supra note 104, at 1098-104.
175. There was a fundamental-right-to-vote jurisprudence under the Equal Protection Clause, but without a race-specific character. See, e.g., Harper v. Va. State Bd. Of Elections, 383 U.S. 663, 666 n.3 (1966) (noting, in striking down a poll tax, that "[w]hile the Virginia poll tax was born of a desire to disenfranchise the Negro, we do not stop to determine whether on this record the Virginia tax in its modern setting serves the same end" (internal citation and quotation marks omitted)). There was also a small, race-specific body of Fifteenth Amendment law, but it was limited to cases in which the voter was denied the franchise.
176. See City of Mobile v. Bolden, 446 U.S. 55, 61-65 (1980) (reviewing Fifteenth Amendment cases).
177. S. REP. NO. 97-417, at 30 n.119 (1982)
178. (citing Toney v. White, 488 F.2d 310 (5th Cir. 1973);
179. United States v. Post, 297 F. Supp. 46 (W.D. La. 1969)
180. Brown v. Post, 279 F. Supp. 60 (W.D. La. 1968)).
181. S. REP. NO. 97-417, at 30 (emphasis added).
182. Note in this regard that the Senate Report expressly states that the White/Zimmer list of factors is not exhaustive of the considerations that may be brought to bear on a Section 2 liability determination. S. REP. NO. 97-417, at 28-29.
183. See White v. Regester, 412 U.S. 755, 766 (1973) (stating that vote dilution claims require "evidence . . . that the political processes leading to nomination and election were not equally open to participation by the group in question").
184. S. REP. NO. 97-417, at 30 (emphasis added).
185. Id. (emphasis added) (citing White, 412 U.S. at 769-70).
186. Id. at 767 (quoting Graves v. Barnes, 343 F. Supp. 704, 727 (W.D. Tex. 1972)) (internal quotation marks omitted).
187. In our two-party system, "normal party politics" can be said to involve joining forces with other citizens to construct a political coalition with a realistic opportunity to win control of the government. Plurality-winner elections, the American norm, generally induce two-party systems. AREND LIJPHART, PATTERNS OF DEMOCRACY: GOVERNMENT FORMS AND PERFORMANCE IN THIRTY-SIX COUNTRIES 165-70 (1999).
188. This analysis casts some doubt on Presley v. Etowah Cnty. Comm'n, 502 U.S. 491, 509-10 (1992), in which the Court drew a firm line between "voting" and "governance" and presumed the VRA is concerned only with the former.
189. S. REP. NO. 97-417, at 30-34 (1982).
190. S. REP. NO. 97-417, at 32.
191. VRA § 2, 42 U.S.C. § 1973(a) (2006); see also, e.g., S. REP. NO. 97-417, at 27 ("Plaintiffs must either prove [a discriminatory purpose in the challenged system], or, alternatively, must show that the challenged system . . . results in minorities being denied equal access to the political process.")
192. See S. REP. NO. 97-417, at 28-29 & n.114.
193. S. REP. NO. 97-417, at 32 (emphasis added).
194. Id. (quoting Voting Rights Act: Hearings Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 97th Cong. 6-7 (1982) (testimony of Arthur S. Flemming, Chairman, Comm'n on Civil Rights)).
195. See S. REP. NO. 97-417, at 36-37.
196. See VRA § 2, 42 U.S.C. § 1973 (2006);
197. S. REP. NO. 97-417, at 16, 21-22, 25-33. Recall that both the text of the Section 2 and the Senate Report call for a totality of circumstances inquiry.
198. The strongest evidence against my position consists of a few snippets of legislative history that arguably suggest that certain participation injuries within the meaning of Section 2 may be purely disparate impact in character. The Senate Report cites three cases as examples of "episodic," participation-based violations of Section 2. See S. REP. NO. 97-417, at 30 n.119.
199. (citing Toney v. White, 488 F.2d 310 (5th Cir. 1973);
200. United States v. Post, 297 F. Supp. 46 (W.D. La. 1969);
201. Brown v. Post, 279 F. Supp. 60 (W.D. La. 1968)). In each of these cases, the court expressly found that the state actor responsible for the challenged standard, practice, or procedure was not motivated by racial prejudice.
202. Toney, 488 F.2d at 312; Post, 297 F. Supp. At 49;
203. Brown, 279 F. Supp at 63. The facts in two of these cases do suggest a strong probability of illicit discrimination and would therefore support liability under my significant-likelihood approach.
204. Brown, 279 F. Supp. at 63 (finding that state defendants "[a]llow[ed] inpatients of the Delta Haven ursing Home to vote absentee without extending the same opportunity to inpatients of a Negro nursing home,"[a]llowe[d] white individuals to vote absentee by making absentee ballots available to them in their private residences without extending this same opportunity to Negro residents," made "absentee ballots available to the white employees of the Scott Plantation without doing so for Negro employees similarly situated," and made "absentee voting available to white residents of the Willow Bayou section without a corresponding opportunity being given to Negroes similarly situated"). But the third case seems to have involved a comedy of administrative errors that incidentally disadvantaged a black candidate and his supporters.
205. See Post 297 F. Supp. at 48-49 (describing how election administrators had changed the voting-lever system apparently for technical reasons without notifying a black candidate who had "geared his entire campaign strategy to inducing the voters to pull the master Democratic lever" a lever which following the mechanical change no longer recorded a vote for the candidate). Another counterpoint to my thesis about the necessity of race-biased decisionmaking to injury within the meaning of the results test is that in upholding a district court's finding of unconstitutional vote dilution with respect to Latino plaintiffs, the Supreme Court in White v. Regester pointed out that some minority voters "suffer[] a cultural and language barrier that makes . . . participation in community processes extremely difficult."
206. (quoting Graves v. Barnes, 343 F. Supp. 704, 731 (W.D. Tex. 1972)) (internal quotation marks omitted). The Court also emphasized that the plaintiffsi "had long suffered from, and continue[] to suffer from, the results and effects of invidious discrimination . . . in the fields of education, employment, economics, health, politics and others."
207. S. REP. NO. 97-417, at 36. The enacting Congress clearly objected to electoral structures that gave effect, as it were, to voter discrimination as well as state discrimination in nonelectoral realms, such as education.
208. City of Boerne v. Flores, 521 U.S. 507, 534-35 (1997) (emphasis added).
209. See, e.g., Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 741-42 (2003) (Scalia, J., dissenting) ("There is no guilt by association, enabling the sovereignty of one State to be abridged under § 5 of the Fourteenth Amendment because of violations by another State, or by most other States, or even by 49 other States.");
210. United States v. Morrison, 529 U.S. 598, 626-27 (2000) (objecting to the civil remedy in the Violence Against Women Act because it applied to all states, even though congressional "findings indicate that the problem of discrimination against the victims of gendermotivated crimes does not exist in all States, or even most States"). Thanks to Vik Amar for emphasizing this point. Of course, a Section 2 limited by a significant-likelihood requirement might nonetheless fail the congruence-and-proportionality test if the statute were otherwise incredibly intrusive. But the common law understanding of Section 2 allows courts to solve this problem.
211. see also Karlan, Two Section Twos, supra note 12, at 729-30 (discussing this aspect of Boerne).
212. (quoting Oregon v. Mitchell, 400 U.S. 112, 235 (1970) (Brennan, J.)) (internal quotation marks omitted);
213. Note that the modern Supreme Court has consistently rejected the claim that there is a compelling state interest in remedying "societal discrimination." For examples of this jurisprudence, see Shaw v. Hunt, 517 U.S. 899, 909-10 (1996), and cases cited therein.
214. In keeping with this, courts are extremely reluctant to compel anyone to disclose how he voted unless he stands accused of fraud. See Steven Huefner, Remedying Election Wrongs, 44 HARV. J. ON LEGIS. 265, 290-91 (2007).
215. Pamela S. Karlan & Daryl J. Levinson, Why Voting Is Different, 84 CALIF. L. REV. 1201, 1228 (1996).
216. See also Romer v. Evans, 517 U.S. 620, 634 (1996) (stating that the right to vote may not be denied because a citizen espouses offensive positions);
217. Kirsey v. City of Jackson, 663 F.2d 659, 662 (5th Cir. Unit A Dec. 1981) ("The first amendment assures every citizen the right to cast his vote for whatever reason he pleases. . . . Baser motives are protected along with the grand and noble. Stigmatized racial attitudes . . . are not constitutionally proscribed." (internal citation and quotation marks omitted)).
218. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448 (1985) (emphasis added).
219. See, e.g., Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 471-80 (1982) (invalidating an initiative that prohibited school busing but exempted busing for numerous purposes other than racial integration; the content of the initiative coupled with the circumstances of enactment supported an inference of discriminatory purpose);
220. Hunter v. Erickson, 393 U.S. 385, 392-93 (1969) (invalidating a ballot-initiative amendment to a city charter that conditioned enactment of certain antidiscrimination measures on a referendum vote);
221. Reitman v. Mulkey, 387 U.S. 369, 374-81 (1967) (striking down an initiative that created a state constitutional right to alienate property in violation of state antidiscrimination statutes; discriminatory voter purpose was inferred from context).
222. Note that the decision in Seattle School District, like that in Cleburne, postdated the consolidation of intent-based equal protection jurisprudence in Washington v. Davis, 426 U.S. 229 (1976)
223. and Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979).
224. See, e.g., City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194-97 (2003) (suggesting that evidence of "discriminatory voter sentiment" can be a basis for invalidating a referendum measure on equal protection grounds);
225. Romer, 517 U.S. at 635 ("Amendment 2[, a voter-adopted measure,] classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.") Note the Romer Court's easy equation of the state and the electorate
226. Anderson v. Martin, 375 U.S. 399, 402 (1964).
227. See Lawrence Gene Sager, Insular Majorities Unabated: Warth v. Seldin and City of Eastlake v. Forest City Enterprises, Inc., 91 HARV. L. REV. 1373, 1421 (1978) (using a hypothetical mayoral election to illustrate the putatively obvious point that representative elections should not and cannot be invalidated on the basis of the electorate's motive).
228. To be sure, it might be argued that the Equal Protection Clause does not apply to state action in the form of appointment to public office because public service is a political rather than a civil right. Many scholars maintain that the Fourteenth Amendment was originally intended to protect only civil and not political rights. See, e.g., Vikram David Amar, Jury Service as Political Participation Akin to Voting, 80 CORNELL L. REV. 203, 222-41 (1995) (relating the history of the Fourteenth and Fifteenth Amendments). This counterpoint to my thesis that the electorate violates the Constitution when it installs a representative for race-discriminatory reasons faces two objections. First, there are innumerable Supreme Court precedents that apply the Equal Protection Clause in cases about political rights.
229. See, e.g., Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) ( jury service)
230. Quinn v. Millsap, 491 U.S. 95 (1989) (appointment to public office and service on juries);
231. Batson v. Kentucky, 476 U.S. 79 (1986) (jury service);
232. Lubin v. Panish, 415 U.S. 709 (1974) (candidacy for elective office);
233. Turner v. Fouche, 396 U.S. 346 (1970) (appointment to public office);
234. Reynolds v. Sims, 377 U.S. 533 (1964) (voting rights);
235. Baker v. Carr, 369 U.S. 186 (1962) (same). Second, historical purists should understand political rights beyond voting as subject to the antidiscrimination norms of the Fifteenth Amendment.
236. Then again, they might, either on the theory that they were unconstitutionally deprived of representation they would have otherwise obtained, or on a theory of expressive harm. Cf. Samuel Issacharoff & Pamela S. Karlan, Standing and Misunderstanding in Voting Rights Law, 111 HARV. L. REV. 2276, 2280-85 (1998) (analyzing standing in cases about race-motivated electoral district boundaries). Thanks to Justin Levitt for suggesting the expressive harm angle.
237. One further point (in anticipation of possible objections): though the electorate is a state actor, it is not a conventional state actor, and the standard First Amendment bar to discrimination on the basis of ideology should not apply to it. In this respect, the electorate is akin to a political party, or, alternatively, an elected official who is filling offices with significant policymaking responsibilities. See, e.g., Rutan v. Republican Party of Ill., 497 U.S. 62, 70, 71 n.5 (1990) (recognizing a "policymaking position[]" exception to the general First Amendment prohibition on government employment discrimination on the basis of ideology);
238. LaRouche v. Fowler, 152 F.3d 974, 998 (D.C. Cir. 1998) (holding that a party convention may discriminate against a candidate deemed insufficiently committed to the party platform);
239. Duke v. Massey, 87 F.3d 1226, 1235 (11th Cir. 1996) (holding that a party committee may discriminate against a candidate on the basis of the candidate's racist views). Like the electorate, political parties may not discriminate on the basis of race in nominating candidates.
240. See Smith v. Allwright, 321 U.S. 649, 663-64 (1944) (invalidating a whites-only primary organized by the Texas Democratic Party for the purpose of selecting nominees)
241. The public-function test asks whether the power at issue was "traditionally exclusively reserved to the State." Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974).
242. See, e.g., Georgia v. McCollum, 505 U.S. 42, 50-55 (1992);
243. Edmonson, 500 U.S. at 620-31. Thanks to Vik Amar and Evan Caminker for suggesting the juror analogy.
244. Jackson, 419 U.S. at 352;
245. see also Edmonson, 500 U.S. at 638-41 (O'Connor, J., dissenting).
246. Edmonson, 500 U.S. at 624 (majority opinion).
247. See, e.g., Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952
248. See Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. REV. 543, 551-56 (2000) (providing examples). But the private role tends to be limited to specific contexts in which the empowered private actors have an exceptional interest. And, if the private role is coercive, it must be subject to public review and approval on a case-by-case basis. A state that delegated to private actors the authority to appoint members of, say, a city council or state legislature would unquestionably violate constitutional norms.
249. See, e.g., Ball v. James, 451 U.S. 355, 368 (1981) (noting that the defendant irrigation district was "essentially [a] business enterprise[]").
250. Pittman v. Chi. Bd. of Educ., 64 F.3d 1098, 1102-03 (7th Cir. 1995) (Posner, C.J.) (exempting local school councils from the rule of "one man, one vote" because they "have no power to tax directly and they also have no power to tax indirectly").
251. Very rare circumstances may present exceptions to this general rule. Cf. supra note 244 (suggesting that Terry v. Adams, 345 U.S. 461 (1953), is best understood as an electorate-motive case).
252. But for anyone interested in the niceties, one way of thinking about the problem is in terms of interference by federal courts with core attributes of state sovereignty or, in the case of federal elections, with the states' citizens' ability to participate in federal lawmaking through their representatives. Cf. Fed. Energy Regulatory Comm'n (FERC) v. Mississipi, 456 U.S. 742, 761-63 (1982) (reasoning that whether Congress may require a state agency "to consider" a federal agency's regulatory proposals prior to enacting further state regulations depends on whether the federal mandate interferes with the state agency's ability to "set policy").
253. National League of Cities v. Usery, 426 U.S. 833 (1976)
254. and eventually superseded on justiciability grounds by Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).
255. Cf. Bell v. Southwell, 376 F.2d 659, 660 (5th Cir. 1967) (ordering a special election in response to "flagrant," "glaring"-and correctible-constitutional violations by election administrators on Election Day).
256. Satisfactory remedies may be available in very rare circumstances, but even then only to a limited degree. See Terry v. Adams, 345 U.S. 461 (1953);
257. Luther v. Borden, 48 U.S. (7 How.) 1, 18-19 (1849).
258. Professor Laurence Tribe has argued, based on the Twelfth Amendment, that federal courts lack jurisdiction over post-election disputes in presidential elections. See Laurence H. Tribe, eroG .v hsuB and Its Disguises: Freeing Bush v. Gore from Its Hall of Mirrors, 115 HARV. L. REV. 170, 276-87 (2001). This is probably too strong. The feder al courts can hear disputes to ensure that votes are counted in conformity with the individual rights guarantees of the Constitution, such as equal protection and due process. The critical issue in my view is the remedy sought: courts can hear claims where the remedy is an order regarding the distribution of the franchise or the counting of ballots, but they cannot hear disputes in which the plaintiff seeks an order declaring one candidate or the other the rightful winner.
259. Vieth v. Jubelirer, 541 U.S. 267, 307 (2004) (Kennedy, J., concurring).
260. Cf. Fritz W. Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 YALE L.J. 517, 567-73 (1966) (arguing that practical concerns about lack of judicial access to necessary information underlie many of the Supreme Court's political question holdings).
261. For the leading case, see Arthur v. City of Toledo, 782 F.2d 565, 573-74 (6th Cir. 1986), which mandates a purely textual inquiry on the basis of voter privacy concerns.
262. See also Kirksey v. City of Jackson, 663 F.2d 659, 661-62 (5th Cir. Unit A Dec. 1981) (rejecting an equal protection challenge to a referendum measure because judicial inquiry into voter motives would present First Amendment problems). Evidentiary difficulties unrelated to the First Amendment may also lead courts to restrict their motive analysis to the face of the measure.
263. Cf. Jones v. Bates, 127 F.3d 839, 860-61 & n.32 (9th Cir. 1997) (noting that "the search for the people's ntent in passing initiatives is far different from the attempt to discern legislative intent; there are no legislative hearing transcripts, committee reports, or other legislative history," and dismissing the idea of inferring voter intent from campaign materials as "tantamount to relying on political parties' campaign advertisements to interpret legislative acts"). Arthur observed that all of the Supreme Court's then-extant electorate motive cases had been decided on the face of the measure.
264. F.2d at 571-73 & n.2. The same is true of Romer v. Evans, the Supreme Court's principal post-Arthur plebiscite case.
265. But see City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194-97 (2003) (stating in dicta that other evidence of "discriminatory voter sentiment" can be a basis for invalidating a referendum measure).
266. Of all published opinions in electorate-motive cases, the one that relies most extensively on election- and campaign-related evidence is Perry v. Schwarzenegger. See 704 F. Supp. 2d 921, 963, 973-81, 1002-03 (N.D. Cal. 2010). In Perry, the court evaluated campaign advertisements, proponents' statements and correspondence, the history of antigay ballot campaigns, and political scientists' testimony in determining the electorate motive behind a California initiative banning same-sex marriage.
267. see also Buckeye Cmty. Hope Found. v. City of Cuyahoga Falls, 263 F.3d. 627, 637 n.2 (6th Cir. 2001) (criticizing Arthur, seemingly in favor of determining the electorate's motive on the basis of the measure's impact, historical context, and procedural history, plus specific evidence of decisionmaker intent)
268. rev'd on other grounds, 538 U.S. 188 (2003).
269. Cf. McCreary County v. ACLU of Ky., 545 U.S. 844, 862 (2005) (asserting that, for Establishment Clause purposes, "[t]he eyes that look to purpose belong to an objective observer" (citations and internal quotation marks omitted))
270. Baker v. Carr, 369 U.S. 186, 217 (1962).
271. Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448 (1985).
272. Baker, 369 U.S. at 217.
273. United States v. Euclid City Sch. Bd., 632 F. Supp. 2d 740, 750 (N.D. Ohio 2009) (internal citations and quotation marks omitted);
274. see also Upham v. Seamon, 456 U.S. 37, 43 (1982) (holding that a district court's "modifications of a state plan [of electoral districts] are limited to those necessary to cure any constitutional or statutory defect").
275. Anderson v. Martin, 375 U.S. 399, 402 (1964).
276. Most of this work compares partisan and nonpartisan elections. See, e.g., Jack Citrin et al., White Reactions to Black Candidates: When Does Race Matter?, 54 PUB. OPINION Q. 74, 90-91 (1990) (demonstrating that antiblack attitudes had a powerful effect on voter preferences in a biracial, nonpartisan contest for California's state superintendent of schools, but not in a concurrent biracial, partisan contest for governor, notwithstanding ideological and other similarities between the two black candidates);
277. Cindy D. Kam, Implicit Attitudes, Explicit Choices: When Subliminal Priming Predicts Candidate Preference, 29 POL. BEHAV. 343, 357-62 (2007) (analyzing simulated judicial elections and showing that voters with high implicit and explicit racial biases were likely to vote against the Hispanic candidate in the nonpartisan scenario, but not in the partisan scenario);
278. Leon J. Kamin, Ethnic and Party Affiliations of Candidates as Determinants of Voting, 12 CANADIAN J. PSYCHOL. 205, 207-12 (1958) (demonstrating that Canadian voters who know only the names of candidates vote in part on the basis of the names' ethnic connotations, but that knowing partisan cues renders a name's connotation irrelevant);
279. Robert A. Lorinskas et al., The Persistence of Ethnic Voting in Urban and Rural Areas: Results from the Controlled Election Method, 49 SOC. SCI. Q. 891, 894-95 (1969) (finding in simulated elections that Polish American voters were more likely to vote on the basis of ethnic cues in nonpartisan than in partisan elections);
280. Peverill Squire & Eric R.A.N. Smith, The Effect of Partisan Information on Voters in Nonpartisan Elections, 50 J. POL. 169, 176-77 (1988) (showing that black and Latino respondents were less likely to favor judges of their own race in a judicial retention election when informed about the governor who appointed each judge);
281. see also, e.g., Jeremy N. Bailenson et al., Facial Similarity Between Voters and Candidates Causes Influence, 72 PUB. OPINION Q. 935, 952-54 (2008) (showing experimentally that the effect of facial similarity between candidate and voter on vote choice is strongest when voters are unfamiliar with the candidate);
282. Benjamin Highton, White Voters and African American Candidates for Congress, 26 POL. BEHAV. 1, 16 (2004) (finding "little aversion of white voters to black candidates" in partisan elections for seats in Congress);
283. Marsha Matson & Terri Susan Fine, Gender, Ethnicity, and Ballot Information: Ballot Cues in Low-Information Elections, 6 ST. POL. & POL'Y Q. 49, 63-64 (2006) (providing evidence of voter reliance on ethnic and gender cues in low-information elections and showing that campaign spending may counteract that reliance by furnishing voters with information);
284. Monika L. McDermott, Race and Gen der Cues in Low-Information Elections, 51 POL. RES. Q. 895, 907-14 (1998) (using surveybased experiments to show that voters treat race and gender as proxies for candidate ideology and issue positions);
285. Carol K. Sigelman et al., Black Candidates, White Voters: Understanding Racial Bias in Political Perceptions, 39 AM. J. POL. SCI. 243, 256-58 (1995) (showing that white voters stereotype conservative black candidates as more moderate, more compassionate, and less competent than white conservative candidates). Several studies have also shown that the provision of photographs on the ballot induces voters to use a candidate's race or color as a voting cue.
286. See, e.g., Susan A. Banducci et al., Ballot Photographs as Cues in Low-Information Elections, 29 POL. PSYCHOL. 903, 912 (2008) (finding that white candidates were advantaged by ballot photographs in elections for a British urban renewal board);
287. Andrew Leigh & Tirta Susilo, Is Voting Skin-Deep? Estimating the Effect of Candidate Ballot Photographs on Election Outcomes, 30 J. ECON. PSYCHOL. 61, 68 (2009) (finding that in Australian territorial elections where candidates' photographs are included on the ballot, "the effect of skin color on vote share depends strongly upon the size of the Indigenous population").
288. On legal strategies for increasing the informational value of party cues, see Christopher S. Elmendorf & David Schleicher, Informing Consent: Voter Ignorance and Election Law (Oct. 2011) (unpublished manuscript) (manuscript at 47-62) (on file with author).
289. One way to do this in cities with large minority populations but low minority voter turnout is to change the timing of the mayoral race. See ZOLTAN L. HAJNAL, AMERICA'S UNEVEN DEMOCRACY: RACE, TURNOUT, AND REPRESENTATION IN CITY POLITICS 156-59 (2010) (arguing that scheduling local elections to coincide with presidential or midterm congressional contests would increase voter turnout).
290. For the foundational work, see DONALD L. HOROWITZ, ETHNIC GROUPS IN CONFLICT (rev. ed. 2000). Horowitz sees his approach not as a way of reducing prejudice per se, but as a means of keeping group conflict from erupting in violence.
291. See Donald L. Horowitz, Conciliatory Institutions and Constitutional Processes in Post-Conflict States, 49 WM. & MARY L. REV. 1213, 1217 n.11 (2008) (clarifying that his approach is not "integrative" because it "aims at a modicum of cooperative political behavior but not anything like the dissolution of group boundaries"). For works extending and qualifying Horowitz's thesis
292. see BENJAMIN REILLY, DEMOCRACY IN DIVIDED SOCIETIES: ELECTORAL ENGINEERING FOR CONFLICT MANAGEMENT (2001)
293. TIMOTHY D. SISK,POWER SHARING AND INTERNATIONAL MEDIATION IN ETHNIC CONFLICTS (1996).
294. See also Richard H. Pildes, Ethnic Identity and Democratic Institutions: A Dynamic Perspective (arguing that group identity is shaped by candidates and parties responding to electoral incentives)
295. in CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES: INTEGRATION OR ACCOMMODATION? 173, 177-78 (Sujit Choudhry ed., 2008).
296. See, e.g., Arend Lijphart, Double-Checking the Evidence, 2 J. DEMOCRACY 42, 47-48 (1991) (arguing that a parliamentary democracy with proportional representation is better suited to an ethnically divided populace than is a "winner-take-all" parliamentary-plurality democracy);
297. Arend Lijphart, The Power-Sharing Approach (same), in CONFLICT AND PEACEMAKING IN MULTI-ETHNIC SOCIETIES 491, 506-08 ( Joseph V. Montville ed., 1991).
298. To illustrate, in a conventional system of single-member districts, the overriding goal should be to distribute minority voters so that they are electorally relevant. Both the "cracking" and "packing" of minority voters may violate Section 2 for wasting opportunities to create cross-race electoral dependence. Second, under a system of rank-choice voting, the goal of electing candidates with cross-race constituencies may be furthered by substituting the Coombs rule for the conventional algorithm used in vote tabulation. See Bernard Grofman & Scott L. Feld, If You Like the Alternative Vote (a.k.a. the Instant Runoff), Then You Ought to Know About the Coombs Rule, 23 ELECTORAL STUD. 641, 648 (2004) (showing that the Coombs rule, which eliminates candidates according to the number of last-place votes received, selects moderate candidates more reliably). Finally, where the majority and minority groups live in very segregated communities, it may be beneficial to use multimember electorate districts with a votepooling rule.
299. The Boerne Court noted: The stringent test RFRA demands of state laws reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved. If an objector can show a substantial burden on his free exercise,the State must demonstrate a compelling governmental interest and show that the law is the least restrictive means of furthering its interest. City of Boerne v. Flores, 521 U.S. 507, 533-34 (1997).
300. See Hous. Lawyers' Ass'n v. Attorney Gen. of Tex., 501 U.S. 419, 426-27 (1991) (noting that the state interest in electing trial judges from districts that are coextensive with the trial court's jurisdiction "is a factor to be considered by the court in evaluating whether the evidence in a particular case supports a finding [of] a vote dilution violation").
301. Much of the Supreme Court's constitutional election law jurisprudence uses a similar approach, varying the level of scrutiny dichotomously depending on the character and magnitude of the burden on constitutionally protected interests. See Christopher S. Elmendorf & Edward B. Foley, Gatekeeping vs. Balancing in the Constitutional Law of Elections: Methodological Uncertainty on the High Court, 17 WM. & MARY BILL RTS. J. 507, 513-16 (2008) (examining recent Supreme Court election law cases).
302. One other issue deserves at least a footnote mention. It is within the realm of possibility (though unlikely) that (1) the electorate is a state actor bound by the Equal Protection Clause, (2) Cleburne challenges are justiciable in elections for public office, yet (3) such challenges must fail on the merits because of a compelling state interest in, for example, allowing citizens to vote for whatever reason they please, or in not leaving elective offices vacant. One who subscribes to this view could reconcile Cleburne by positing that the constitutional balance tips the other way with respect to plebiscitary elections, owing to the more direct connection between racial bias and state coercion or the easier remedy. (Thanks to Vik Amar for raising this possibility.) This view, if right, is not fatal to my account of Section 2's constitutional function and permissibility. One might think it axiomatic that if the outcome of an election for representatives cannot violate the Equal Protection Clause, then any statutory response to the "problem" of race-biased voting in elections for representatives necessarily fails the congruence-and-proportionality test, because there is no underlying constitutional violation to be remedied. But this is mistaken. If the electorate is a state actor and puts in office public officials for reasons denied to state actors, there is a constitutional harm even if the harm is sufficiently justified to prevent a court from finding a constitutional violation on balance. Implicit in the court's judgment about whether the harm is justified is an assessment of available remedies. See generally Daryl Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857 (1999). The remedies available to a court are of course much more limited than the remedies available to Congress. Shared understandings about limits on judicial discretion and remedial authority would prevent a court from remedying a race-biased election result in a constitutional case by restructuring the electoral process so as to somewhat reduce the probability of future race-biased voting by, for example, providing voters with easy access to low-cost, nonracial voting cues (e.g., switching from nonpartisan to partisan elections). But Congress could do just this. To be sure, the congressional remedy might impose federalism costs out of proportion to the constitutional harm prevented, and as such run afoul of Boerne, but that question would have to be answered on the facts of the case. There is, in principle, some room for congressional action under the enforcement clause of the Fourteenth Amendment whenever constitutional harms are incurred, even if those harms have been deemed sufficiently justified-within the confines of particular cases and given the limited remedial authority of Article III courts-not to violate the Constitution.
303. Cf. Mitchell C. Berman, Constitutional Decision Rules, 90 VA. L. REV. 1, 101-06 (2004) (explaining why Congress might reasonably opt for "decision rules" for enforcing constitutional norms that deviate from the rules the courts would develop on their own).
304. The leading example is the Sherman Act. See, e.g., Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 899 (2007) ("[C]oncerns about maintaining settled law are strong when the question is one of statutory interpretation. Stare decisis is not as significant in this case, however, because the issue before us is the scope of the Sherman Act. From the beginning the Court has treated the Sherman Act as a common-law statute." (emphasis added) (internal citations omitted)). Similarly, at the state level, courts often overrule interpretations of codified common law.
305. See Ethan J. Leib & Michael Serota, The Costs of Consensus in Statutory Construction, 120 YALE L.J. ONLINE 47, 53-54 (2010), http://yalelawjournal.org/images/pdfs/900.pdf (providing examples and hypothesizing that states codify tort and contract law with the expectation that judges will continue to develop the law).
306. That said, because the Supreme Court's Section 2 jurisprudence leaves so much conceptually unresolved, see supra Section I.A, the Court could adopt my account of Section 2's guiding norms without overruling its own precedents. The only restraint is some dicta in Chisom v. Roemer, 501 U.S. 380, 397-98 (1991), which states that Section 2 "does not create two separate and distinct rights" (i.e., separate causes of action for participation and dilution harms). See supra text accompanying notes 52-54, 183-95. Stare decisis is a bigger problem for Section 2 at the court of appeals level.
307. See generally Frederick Schauer, Precedent, 39 STAN. L. REV. 571, 595-602 (1987).
308. See State Oil Co. v. Khan, 522 U.S. 3, 20-21 (1997) ("[T]he general presumption that legislative changes should be left to Congress has less force with respect to the Sherman Act in light of the accepted view that Congress 'expected the courts to give shape to the statute's broad mandate by drawing on common-law tradition.'"
309. (quoting Nat'l Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 688 (1978)));
310. Bus. Elec. Corp. v. Sharp Elec. Corp., 485 U.S. 717, 731 (1988) ("The changing content of the term 'restraint of trade' was well recognized at the time the Sherman Act was enacted.");
311. Nat'l Soc'y of Prof'l Eng'rs, 435 U.S. at 688 ("The legislative history makes it perfectly clear that [Congress] expected the courts to give shape to the statute's broad mandate by drawing on common-law tradition.").
312. Vieth v. Jubelirer, 541 U.S. 267, 307 (2004) (Kennedy, J., concurring).
313. Cf. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 866-67 (1992) (declining to revisit Roe v. Wade because of, inter alia, feared effects on the Court's reputation for political neutrality).
314. As a result, express racial classifications trigger strict scrutiny, even if benignly intended. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) ("Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility."
315. (citing Univ. of Cal. Regents v. Bakke, 438 U.S. 265, 298 (1978))).
316. This point is rarely if ever made explicitly, but it provides a plausible explanation for why the Court has been more tolerant of affirmative action and integrationist policies in the domain of education, where human capital is acquired, than elsewhere. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 788 (2007) (Kennedy, J., concurring) ("In the administration of public schools . . . it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.");
317. Grutter v. Bollinger, 539 U.S. 306, 334 (2003) (upholding a university affirmative action program in which "race or ethnicity [is considered] only as a 'plus' in a particular applicant's file, without insulating the individual from comparison with all other candidates for the available seats" (internal citations and quotation marks omitted)).
318. This theme, evident in Grutter and Parents Involved, has a long lineage and is the subject of many commentaries. See, e.g., Paul J. Mishkin, The Uses of Ambivalence: Reflections on the Supreme Court and the Constitutionality of Affirmative Action, 131 U. PA. L. REV. 907, 929 (1983) (explicating Justice Powell's opinion in Bakke as an exercise of statesmanship);
319. Robert C. Post, The Supreme Court, 2002 Term-Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 64-76 (2003) (discussing Grutter's allowance of affirmative action in higher education);
320. James E. Ryan, The Supreme Court, 2006 Term-Comment: The Supreme Court and Voluntary Integration, 121 HARV. L. REV. 131, 138-39 (2007) (analyzing Kennedy's concurrence in Parents Involved).
321. See TOM CAMPBELL, SEPARATION OF POWERS IN PRACTICE 121-23, 125-28 (2004) (noting and defending this practice).
322. Daniel B. Rodriguez & Barry R. Weingast, The Paradox of Expansionist Statutory Interpretations, 101 NW. U. L. REV. 1207, 1235-41 (2007).
323. Cf. Matthew C. Stephenson, The Price of Public Action: Constitutional Doctrine and Judicial Manipulation of Legislative Enactment Costs, 118 YALE L.J. 2, 55-61 (2008) (arguing that uncertainty in constitutional doctrine raises "enactment costs," thereby forestalling legislative action except on "high-value statutes").
324. The transformation is especially clear with respect to the enforcement clause of the Fourteenth Amendment. Boerne is commonly described as a revolutionary decision. See, e.g., Luis Fuentes-Rohwer, Legislative Findings, Congressional Powers, and the Future of the Voting Rights Act, 82 IND. L.J. 99, 101-02 (2007) (describing Boerne as a "leading exemplar[]" of the Court's recent "federalism revolution").
325. For an influential statement of this view (in a dissent that would later carry the day), see Monroe v. Pape, 365 U.S. 167, 221-22 (1961) (Frankfurter, J., dissenting)
326. overruled in part by Monell v. Dep't of Soc. Servs., 436 U.S. 658, 700 (1978).
327. See H.R. REP. NO. 109-478, at 71 (2006).
328. See, e.g., Griffin v. Breckenridge, 403 U.S. 88, 95-96 (1971).
329. Johnson v. De Grandy, 512 U.S. 997, 1020 (1994).