Category Archives: guest blogging election law scholarship

Here is the final guest post from Chris Elmendorf on his forthcoming paper:

Critics of Section 2 have long voiced three specific complaints.  In this final blog post about my paper, I’m going to revisit those objections and highlight what’s new in my response.

It is said, first, that Section 2 provides no guidance about the nature of the harms it targets or directives for its judicial administration.  The results test notionally protects racial minorities against vote dilution, but neither Congress nor the Supreme Court has been able or willing to explain what vote dilution is, except to say that its presence may be detected through a mysterious judicial inquiry into the “totality of circumstances.”

The second purported problem with Section 2 is its uncertain relationship to the VRA’s overarching ambition: “to hasten the waning of racism in American politics.”  Section 2 in operation has powerfully encouraged the drawing of supermajority-minority electoral districts, a practice which, some fear, “may balkanize us into competing racial factions[,] . . . carry[ing] us further from the goal of a political system in which race no longer matters . . . .”

Finally, the critics say, it is doubtful whether Section 2 as an exercise of congressional enforcement authority under the Fourteenth and Fifteenth Amendments is a congruent and proportional response to constitutional violations. This objection follows from the others.  If it’s not clear what harms Section 2 guards against, and if Section 2 in practice precipitates racial conflict, then Section 2 is probably not a reasonable congressional remedy for constitutional violations.

The account of Section 2 developed in my paper answers each prong of this critique.

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Here is Chris Elmendorf’s latest guest blog post:

In my last two posts, I argued that constitutional doubts about Section 2 could be resolved by conditioning liability on a showing that the plaintiffs’ injury resulted from race-biased decisionmaking by public officials or the majority-group electorate.  Though it’s clear from the legislative history that liability under Section 2 does not depend on proof of intentional discrimination by conventional state actors, the text and legislative history of Section 2 are compatible with a requirement that plaintiffs show “to a significant likelihood” that the decisions in question were infected by racial bias (prejudice or stereotyping).

However, if the courts were to hold that Section 2 demands this “significant likelihood” showing, the courts would for all intents and purposes be acting as lawmakers.  The text of Section 2, though compatible with this requirement, certainly doesn’t suggest it, nor did any member of the enacting Congress.

My post today addresses two questions about judicial lawmaking authority under Section 2.  First, when Congress amended Section 2 in response to City of Mobile v. Bolden, did Congress delegate authority to the courts to play the role of creative partner in developing a common law of racially fair elections, or did Congress intend to fix a particular legal standard in place?  Second, to the extent that courts have lawmaking authority under Section 2, should Section 2 precedents have the weak stare effect of precedents under common law statutes (like the Sherman Act), or the “super strong” stare decisis characteristic of most statutory precedents?

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Here’ Chris Elmendorf’s latest guest post:

In yesterday’s post, I argued that constitutional doubts about Section 2’s results test would be put to rest if plaintiffs were required to show that their injury resulted from race-biased (prejudiced or stereotyped) decisions by conventional state actors or majority-group voters.  This is so even if plaintiffs need to establish only a “significant likelihood” of racial bias, as opposed to proving discrimination “more likely than not.”  The constitutional argument is straightforward if the discriminators are ordinary state actors, such as legislators, pollworkers, prison wardens, or public school administrators.

But what if the plaintiff only shows race-biased decisionmaking by voters?  Societal discrimination was an overriding concern of the Congress that adopted the results test.  Yet private race-discriminatory behavior does not violate the Constitution, so in what sense could a Section 2 that targets such behavior be a congruent and proportional remedy for constitutional violations?  The answer lies in the problem of election outcomes that are unconstitutional because they were determined by race-biased voting.

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Here’s Chris Elmendorf’s second guest post on his forthcoming piece:

Enacted by Congress in 1982, Section 2 of the Voting Rights Act (VRA) bans electoral structures “which result[]” in members of a class of citizens defined by race or color “hav[ing] less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”  During congressional debates on the bill, critics asked supporters of the proposed results test to identify the “core value” they meant to protect.  Whether for reasons of strategy or genuine confusion, the proponents essentially dodged this question, saying only that they intended to restore the legal status quo prior to the Supreme Court’s decision in City of Mobile v. Bolden.  (The Bolden plurality wrote that the 14th Amendment disallows electoral structures that “dilute” minority political power only if the structure was adopted or maintained for discriminatory reasons.)

In the years since 1982, the Supreme Court has struggled to identify Section 2’s core value.  An antidiscrimination results test necessarily presupposes some benchmark conception of neutrality or fairness against which an allegedly discriminatory result may be measured.  As my paper explains, the Supreme Court’s cases variously hint at three different conceptions of the normative benchmark for vote dilution claims, i.e., the entitlement that Section 2 protects: (1) the opportunity to elect a roughly proportionate number of ideally preferred representatives; (2) the representational opportunity that the minority community would have enjoyed under a typical scheme of single-member districts; and (3) the representational opportunity that the minority community would have had absent race-biased decisionmaking by conventional state actors (or majority-group voters).

The third benchmark is in my view the most defensible.  A number of lower courts agree and the law is moving in this direction.  But there is a serious problem with reading Section 2 such that liability depends on proof of intentional discrimination: the framers of the results test were adamantly opposed to intent tests.  The legislative history voices several specific objections to the Bolden plurality’s approach.  The intent test “asks the wrong question”; it’s “unnecessarily divisive”; and it poses an “inordinately difficult burden for plaintiffs in most cases.”  Yet the legislative history also shows that Congress was very much concerned with impairments of minority political opportunity that result from racial prejudice.

It’s possible to reconcile the legislative history’s objections to intent tests with its tacit endorsement of an intent-sensitive benchmark for what is a discriminatory “result” within the meaning of Section 2.  The trick is to expand the object of the intent test (from the lawmakers who enacted the electoral arrangements at issue, to all public actors and majority-group voters whose biased decisions affect minority electoral opportunities), and to relax the standard of proof that plaintiffs must satisfy (from “more likely than not” to something more lenient, such as “significantly likely”).

Let me be clear: I am not arguing that Section 2’s legislative history compels the conclusion that plaintiffs trace their injury to racially biased decisionmaking shown to a “significant likelihood.”  Section’s 2’s text and legislative history are perfectly compatible with a mushy, unstructured legal standard in which liability turns on the judge’s unexplained weighing of any number of factors related to minority political participation, past discrimination, socio-economic conditions, voting patterns, and the electoral system itself.  But the requirement I propose makes sense of the warring intuitions in the legislative history, and would make Section 2 adjudication more normatively transparent.  And as I’ll explain next, it substantially resolves some lingering doubts about Section 2’s constitutionality.

Congress enacted the Section 2 results test as an exercise of its power to enforce the Fourteenth and Fifteenth Amendments.  The Supreme Court has since held that enforcement legislation under the Fourteenth Amendment is permissible only insofar as it is a “congruent and proportional” response to constitutional violations.  (The same tailoring and proportionality requirement likely applies to enforcement legislation under the Fifteenth Amendment.)

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Here is Chris Elmendorf’s first guest blog post:

Rick Hasen has kindly invited me to guest-blog this week about my forthcoming article,  Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes, 160 U. Pa. L. Rev. (2012).

Section 2, the Voting Rights Act’s core provision of nationwide application, has fallen into disfavor.  Conservative critics portray it as conceptually opaque, counterproductive in effect, and quite possibly unconstitutional.  The Supreme Court has cabined Section 2 with severe gatekeeping conditions.  In vote dilution cases, plaintiffs who cannot show the possibility of establishing a compact, majority-minority, single-member district—holding constant the size of the governing body—will be kicked out of court without any consideration of the remedial arrangements they propose.  The constitutional avoidance canon has been a mainstay of these decisions.  Further and more drastic interpretive narrowings are likely.

My paper provides an interpretive reconstruction of Section 2 that responds to the conservative critique, while accepting the jurisprudential and normative suppositions of the now-quite-conservative judicial center.

If the courts accept my reconstruction, the Voting Rights Act will remain surprisingly robust.  Plaintiffs would not have to prove intentional discrimination by conventional state actors.  Remedies designed to enable the election of minority candidates would continue to be issued.  Plaintiffs could challenge presently untouchable electoral arrangements that encourage or perpetuate racially biased voting.  And courts would have strong grounds to overrule barrier-erecting Section 2 precedents that rest on the avoidance canon.

Three ideas anchor my account of Section 2.  I’ll develop them in blog posts over the next few days, but for now, here’s a preview.

Injury, and Proof Thereof.  Section 2 on my account is centrally concerned with alleviating burdens on minority political participation and representation that result from race-biased (prejudiced or stereotyped) decisionmaking by majority-group actors.  Section 2 plaintiffs should be required to trace the injury of which they complain to biased decisions, whether by conventional state actors or by the majority-group electorate.  However, plaintiffs need not prove racial bias in accordance with the conventional, preponderance-of-the-evidence standard.  It should suffice for plaintiffs to show a “significant likelihood” of bias, rather than proving it more likely than not.  The approach I suggest reconciles the legislative history’s conflicting messages about Section 2 and intentional discrimination.  And, when paired with my next idea, it substantially resolves constitutional doubts about Section 2.

Section 2’s Constitutional Function.  The constitutional function of Section 2 is to cure, or compensate for, racially biased state action that adversely affects minorities’ opportunity to participate in the political process and to elect responsive candidates.  Of central importance, Section 2 ameliorates a type of constitutional violation that cannot be remedied through ordinary constitutional litigation: the election outcome that is unconstitutional because of the racial basis for the electorate’s verdict.  I argue that, though the individual citizen may have a First Amendment right to vote for “whatever reason he pleases,” the electorate as a whole is a state actor when it puts in office an official who wields or directs the coercive authority of the state.  Yet electorate-motive challenges to the outcome of an election for representative almost certainly should be dismissed on political question grounds.  Because the underlying constitutional norm cannot be protected by the courts absent congressional enforcement legislation, the “congruence and proportionality” test for constitutional validity should be applied to Section 2 with a very light touch.

Section 2’s Delegation.  Section 2 should be understood as a common law statute, or statutory section.  It delegates authority to the courts to develop a flexible, evolving body of law in response to infections of the electoral process by racial bias.  Section 2 precedents deserve the weak stare decisis effect of precedents under the Sherman Act, the paradigmatic common law statute, rather than the “super strong” stare decisis typical of statutory precedents.  The weak stare decisis effect of Section 2 precedents means, among other things, that new understandings of what Section 2 aims to accomplish (and how) can still have a large effect on Section 2 jurisprudence, notwithstanding the accretion of case law over the last thirty years.

In blog posts over the next several days, I will explain the critique of Section 2 that motivates my paper, the nub of my response, and some practical implications.  I will pay special attention to the question of why election outcomes should be thought unconstitutional if the electorate acts on the basis of racial considerations that the Constitution denies to the state.  This idea may strike some readers as peculiar, and my constitutional defense of Section 2 depends upon it.  I very much look forward to readers’ comments.