“Elmendorf: Making Sense of Section 2 – Part 5 (Revisiting the Conservative Critique)”

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.

Section 2 as I have glossed it is not opaque.  Like the common law, it leaves much to the discretion of courts, but, fairly read, it also establishes substantive and evidentiary norms to guide the exercise of that discretion.  Section 2’s substantive ambition is to remove or compensate for barriers to minority political participation that result from racially biased (prejudiced or stereotyped) decisionmaking by public officials or the majority-group electorate.  As an evidentiary matter, plaintiffs should be required to show a “significant likelihood” of bias, but they need to prove it “more likely than not.”  These norms, when harnessed to the partnership conception of judicial authority under Section 2, yield answers to the critics’ other complaints.

As for the Constitution, my account of Section 2 is unobjectionable because it requires plaintiffs to make, at a retail level, the same type of significant likelihood showing that the Boerne Court approved as the basis for wholesale congressional overrides of state law. Moreover, the common law understanding of Section 2 gives the courts some flexibility to limit the disruptive effect of the results test through state-interest balancing or by scaling back the statute’s reach in response to racial progress.

The common law conception of Section 2 also positions the courts to recognize and vindicate certain claims that Section 2’s framers did not specifically anticipate, such as depolarization claims.  Depolarization litigation would prevent otherwise irremediable constitutional violations–to wit, election outcomes that are unconstitutional because of racially biased voting.  As such, it would solidify the status of Section 2 as a reasonable exercise of congressional enforcement authority.  The recognition of depolarization claims would also remove any lingering doubts about whether Section 2 advances the VRA’s ambition to “hasten the waning of racism in American politics.”

But much remains to be worked out.  My paper says little about how depolarization litigation could be managed or what electoral arrangements would likely prove vulnerable.  (Hint: in richer informational environments, voters rely less on racial cues and stereotypes.)   My paper suggests that Section 2 precedents grounded on the constitutional avoidance canon are ripe for overruling, but it does not consider whether any of these precedents might be justified on other grounds.  My paper notes some circuit splits that my account of Section 2 can help to resolve, but I only briefly sketch the resolutions.  Finally, my paper says little about how my conception of Section 2 comports with the Supreme Court’s interpretations of the results test to date, except to note that the Court never followed the protocol understanding of Section 2, and that the Court’s decisions leave open the question of what harms Section 2 should be understood to guard against.

In closing, I’d like to thank Rick Hasen for inviting me to excerpt and summarize my paper as a series of blog posts.  I welcome your questions and comments.

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