Crum: “Rucho and Section 2 of the Voting Rights Act”

The following is a guest post from Travis Crum:

In Rucho v. Common Cause, the conservatives on the Supreme Court finally prevailed on their decades-long effort to declare partisan gerrymandering a non-justiciable political question. Rather than add to the legion of voices condemning Rucho on its own terms, I want to focus on its worrisome implications for racial vote-dilution claims and Section 2 of the Voting Rights Act.

The Rucho Court condemned partisan gerrymandering claims for “invariably sound[ing] in a desire for proportional representation.” In so doing, the Court cited a racial vote-dilution case—the plurality opinion in City of Mobile v. Bolden—for the proposition that proportional representation is not mandated by the Equal Protection Clause. Building off this point, the Court turned to the question of fashioning a judicially manageable standard for apportioning political power in the context of partisan gerrymandering. The Court observed that “it is not even clear what fairness looks like” and proceeded to identify numerous visions of “fair” representation, from competitive districts to an “‘appropriate’ share of ‘safe’ seats” to maps based on traditional redistricting criteria.

Now, if this argument sounds familiar, that’s because it mirrors the long-running debate between scholars like Sam Issacharoff and Rick Pildes who advocate the creation of competitive districts and academics like Heather Gerken, Michael Kang, and Pam Karlan who are far more comfortable with race-conscious redistricting. What’s troubling about Rucho’s logic is that it outlines an analogous debate and then throws its hands up and says there’s no judicially manageable standard. In this way, Rucho channels concerns similar to those articulated in Justice Thomas’s concurring opinion in Holder v. Hall, where he criticized Section 2 for lacking a legitimate and manageable benchmark.

And therein lies Rucho’s relevance to the VRA. To be sure, Section 2 expressly disclaims a right to proportional representation, but ever since Johnson v. De Grandy, the Court has made “rough proportionality” a central part of Section 2’s totality-of-the-circumstances inquiry. Given this, Rucho’s criticism of proportionality standards should be a warning sign for Section 2’s constitutionality, especially when combined with the Roberts Court’s colorblind instincts and its outright hostility to race-conscious redistricting.

If you think I’ve stared at the tea leaves for too long, consider the ways the Rucho Court deployed and distinguished other election-law precedents. The Court greenlit Reynolds’s one-person, one-vote principle as “relatively easy to administer as a matter of math.” As for the Shaw line of cases, the Court observed that racial gerrymandering claims seek the “elimination of a racial classification” and “do[] not ask for a share of political power and influence, with all the justiciability conundrums that entails.” Put simply, the Court went out of its way to preserve those precedents—indeed, with a rationale for Shaw that is at cross-purposes with Section 2—but only invoked a racial vote-dilution case as a sword to undercut a claim for proportional representation.

To be clear, I’m not predicting that the Court is going to determine that racial vote-dilution claims are non-justiciable political questions—such a holding wouldn’t make much sense for a variety of reasons. Rather, my point is that the Court’s intuitions tend to sublimate across numerous doctrinal contexts.

Thus, in defending Section 2’s constitutionality, civil rights advocates and the academy should emphasize that proportionality is just one factor in a Section 2 case and that the touchstone is rough proportionality, not perfect proportionality. The Gingles factors, moreover, have functioned as an effective gatekeeping mechanism and a de facto sunset provision for Section 2, thus limiting the situations where proportionality concerns even enter the equation. And, of course, the Court has long viewed Congress’s Reconstruction Amendment enforcement authority to be at its zenith when seeking to remedy and deter racial discrimination in voting. Race was not directly at issue in Rucho, and for the plaintiffs to have prevailed, the Court would have had fashion its own standard for adjudicating partisan gerrymandering claims without congressional guidance.

The Court’s decision in Rucho will have profound and disastrous implications for the 2020 redistricting cycle and beyond. But it may also foreshadow the endgame for Section 2.

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