June 16, 2008

Ellen Katz: Response to Adam Cox

Here is a guest post by Ellen Katz:

    Adam Cox's recent post repeats a series of claims to which Anna Baldwin and I have already responded here. While I'm reluctant to repeat what we've already spelled out in detail elsewhere, I offer these few thoughts.

    Our studies examined Section 2 cases that produced published opinions. What we found was that plaintiffs who brought these cases prevailed more often in covered jurisdictions than in non-covered ones, and that courts adjudicating these claims were more likely to find various of the underlying factors that comprise the Section 2 inquiry in regions subject to Section 5 of the VRA than elsewhere. See here, here, and here.

    We have repeatedly recognized in our published work that the Section 2 data we collected is not a perfect lens through which to gauge opportunities for political participation on the ground, and that it defines neither the full range of conduct that violates Section 2 nor the full scope of litigation brought under the statute. See here, here, here, and here. Our findings nevertheless remain noteworthy. Indeed, Judge Tatel found the differences we identified "striking." Several reasons explain why.

    In NAMUDO, Judge Tatel wrote that the differences we found between covered and non-covered jurisdictions "are particularly striking given that but for section 5's prophylactic effects, covered jurisdictions would likely have been targeted by far more section 2 litigation." Judge Tatel is certainly correct about this. We know, for instance, that three-judge trial panels decided more than four times as many Section 2 cases in non-covered jurisdictions than in covered ones since 1982. In covered regions during this period, the Justice Department denied preclearance to dozens of districting plans of the type that, if challenged under Section 2, would have been most likely to be heard by a three-judge panel. Comparably few such Section 2 claims materialized in covered jurisdictions precisely because Section 5 blocked implementation of the underlying plans. See here and here.

    By definition, Section 5 of the VRA screens conduct only in covered jurisdictions. Thus if the NAMUDO plaintiff is right that these jurisdictions have been "cured" and Section 5 is no longer needed, covered regions should account for fewer successful Section 2 lawsuits than non-covered ones, where, by definition, Section 5 does not operate. But this is not the case. Section 2 plaintiffs were more likely to succeed and in fact succeeded more often in covered jurisdictions. Even at the local level, where preclearance operates most vigorously to block electoral changes, Section 2 challenges were more likely to succeed in covered than in non-covered jurisdictions. See here and here.

    And while the proportion of successful plaintiff outcomes in covered jurisdictions has indeed diminished in recent years, covered regions still do no better than non-covered ones either proportionally, or in absolute terms, even though, as Judge Tatel noted, less than one-quarter of the U.S. population lives in these regions. Recent progress, moreover, hardly means Congress should not consider the record from the full period since the last reauthorization.

    Published Section 2 decisions cannot, of course, tell us what happened in Section 2 cases that never produced a published opinion. But what we do know indicates that a complete accounting of this litigation would reveal an even greater proportion and number of successful plaintiff outcomes in covered jurisdictions than our studies found. We know, for example, that many Section 2 claims ended with settlements that offer plaintiffs substantial relief but no fully adjudicated--or published--judgment. The total number of such settlements is not known, but nothing suggests that non-covered jurisdictions account for a greater number of them. In fact, just the opposite appears to be true. Dillard v. Crenshaw County, for example, involved a successful Section 2 challenge to the use of at-large elections in several Alabama counties. Dillard prompted challenges to similar practices in an additional 180 Alabama jurisdictions, most of which settled in a manner favorable to the plaintiffs. The record of published Section 2 cases in Alabama captures but a fraction of the statute's true effect in this covered State. See here.

    In short, our studies on Section 2 suggest that opportunities for minority political participation in covered jurisdictions have lagged behind those available in non-covered ones. Our studies, of course, cannot prove definitely that this is so. But I have yet to encounter any evidence that shows any systematic distortion in the portrait of political participation that emerges from published Section 2 decisions.

Posted by Rick Hasen at June 16, 2008 07:41 AM