Elmendorf and Spencer: “New Tools for ‘Bail In’: Using the Geography of Discrimination to Reconstruct VRA Preclearance, Judicially”

Here’s a guest post from Chris Elmendorf and Doug Spencer:

New Tools for “Bail In”: Using the Geography of Discrimination to Reconstruct VRA Preclearance, Judicially

 Chris Elmendorf, UC Davis School of Law

Doug Spencer, University of Connecticut School of Law

July 25, 2013

Today’s announcement by Attorney General Holder that the United States will seek judicial imposition of Voting Rights Act preclearance on the state of Texas is just the latest signal that previously obscure “Section 3” will take center stage in voting rights litigation after Shelby County.  Section 3 of the VRA expands the set of available remedies for unconstitutional race discrimination with respect to voting.  It permits federal courts not simply to enjoin the practice found unconstitutional, but also to compel the defendant state or political subdivision to pre-clear future election law changes with the court or the Department of Justice.

There are, however, two large hurdles to reconstructing some semblance of the pre- Shelby County preclearance regime through Section 3 litigation: (1) the difficulty of proving intentional race discrimination, which is the only kind of race discrimination that the 14th and 15th amendments prohibit and therefore a prerequisite for bail-in remedies; (2) Shelby County’s warning that preclearance is an “extraordinary” remedy justified only by “exceptional” conditions.

We argue in this post (and in more detail in the latest version of this paper) that both of these hurdles may be overcome with evidence concerning the geography of racial stereotyping, racially polarized voting, and minority population size.  Racial stereotyping, racially polarized voting, and large minority populations are risk factors for 14th and 15th Amendment violations.  And it turns out that states whose non-black populations subscribe to exceptionally dim views of the work effort, intelligence, and trustworthiness of African Americans are also the states with the highest levels of racially polarized voting, and the largest black populations (by share of total population).  These are also, by and large, the same states that were subject to preclearance under the “outdated” coverage formula invalidated by Shelby County.

Why does this matter for Section 3?  Consider first the permissible scope of bail-in remedies.  Imagine that Texas’s redistricting maps are found to have violated the 14th Amendment, and the court believes that a bail-in remedy is appropriate.  The court must then decide how to delimit the remedy’s geographic scope (does it apply only to the State of Texas, or also to the state’s political subdivisions, such as cities and counties?); the remedy’s topical scope (does it apply only to redistricting, or to all “standards, practices, and procedures” with respect to voting?); and the remedy’s temporal scope (how long will Texas be subject to preclearance?).

 Shelby County’s characterization of preclearance as an “extraordinary” remedy justified only by “exceptional” conditions means that district courts will face considerable pressure—on pain of reversal—to issue narrow bail-in remedies (or none at all), unless plaintiffs make a compelling showing that conditions in the state really do present an exceptional, unusual risk of 14th and 15th Amendment violations.  But the very same arguments that would justify Congress basing a generic coverage formula on the geography of racial stereotyping, racially polarized voting, and minority population size would equally justify judicial reliance on these factors for purposes of subjecting “exceptional” states to broad bail-in remedies.

Now consider the liability-stage question of whether 14th or 15th Amendment violations actually occurred.  In ordinary constitutional litigation, plaintiffs must prove it “more likely than not” that a discrete state action violated the Constitution.  In race discrimination cases, this mean identifying a particular state actor responsible for the objectionable action, and proving it more likely than not that she or he acted for impermissible reasons.  But for purposes of bail-in remedies under Section 3, the requisite “find[ing] [of] violations of the fourteenth or fifteenth amendment justifying equitable relief” might be established rather differently.

Imagine that political subdivisions in the defendant state independently undertook 100 somewhat suspicious actions, such as redistricting that disadvantages a minority community.  Or, if one accepts Elmendorf’s account of the electorate as a state actor for certain purposes, imagine 100 separate elections in the defendant jurisdiction, each with racially polarized voting.  After tracing the history of these state actions, and weighing information about racial stereotyping, racially polarized voting, and minority population size in the defendant jurisdiction, the court concludes that the odds of an unconstitutional outcome are roughly 1 in 10 for each occurrence of the state action (i.e., for each redistricting, or each election outcome).  Applying the “more likely than not” standard, the court should further conclude that at least nine constitutional violations occurred.   It may be impossible to say whether any one of the 100 state actions violated the Constitution, but it follows from the laws of probability that the odds of at least nine constitutional violations are bigger than 0.50.

Thus, the very same risk factors that may justify broad preclearance remedies under Section 3 are also relevant at the initial liability stage of a bail-in case.  They are pertinent not because Section 3 relaxes the evidentiary standard for constitutional violations to something looser than “more likely than not,” but because the Section 3 question is whether “violations . . . justifying equitable relief” (in the form of bail-in) occurred, not whether this or that state action should be enjoined because it was probably unconstitutional.  The threshold question in a Section 3 case—whether it is more likely than not that violations occurred—will often have an affirmative answer if many state actions took place, each with small positive probability of violating the Constitution.

Of course, it doesn’t follow that a bail-in remedy would be justified.  But at least the court will reach the bail-in question.

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