The Erasure of Racial Vote Dilution Doctrine

I’ll have more to say about the Court’s appalling opinion in Rucho in Rick’s symposium next week. But I want to flag one point now: the Court’s erasure of racial vote dilution doctrine. This is the doctrine that allows groups of minority voters to challenge electoral arrangements (including district lines) on the ground that the policies dilute the plaintiffs’ votes. When such claims are brought under the Constitution, they require both discriminatory intent and discriminatory effect in the form of cracking and packing that reduce the plaintiffs’ electoral influence. And crucially, the claims can be brought under the Constitution, not just the Voting Rights Act. Landmark precedents like White v. Regester and Rogers v. Lodge involve exclusively constitutional—and successful—racial vote dilution suits.

But you wouldn’t know any of this from Rucho. The Court discussed the two other kinds of redistricting claims that can be raised under the Constitution: one person, one vote, and racial gerrymandering. According to the Court, neither of these theories supports the justiciability of partisan gerrymandering claims. That’s because one person, one vote is an individualistic theory from which claims about group power can’t be derived, while racial gerrymandering suits don’t “ask for a fair share of political power and influence, with all the justiciability conundrums that entails.” In contrast, the Court didn’t say a word about racial vote dilution. It didn’t cite White or Rogers or any other racial vote dilution decision. It didn’t mention the standard for liability in these cases. It didn’t even acknowledge that the doctrine exists.

This omission couldn’t have been accidental. In their briefs, the plaintiffs focused relentlessly on racial vote dilution precedents, arguing that they provided an analytical structure that could be used for partisan gerrymandering claims too. As the League of Women Voters plaintiffs put it, “that [partisan gerrymandering claims] are not political questions . . . follows from the undisputed justiciability of racial vote-dilution cases. Racial vote dilution, just like partisan vote dilution, works by cracking and packing disfavored voters and thus abridging their electoral influence. The former cannot be justiciable and the latter not.” It was thus bitterly ironic when the Court asserted that “Appellees contend that if we can adjudicate one-person, one-vote claims, we can also assess partisan gerrymandering claims.” After all, that was never Appellees’ contention. Their actual argument, which the Court studiously refused to acknowledge, was that if the Court can adjudicate racial vote dilution claims, it can also assess analytically identical partisan gerrymandering claims.

Why did the Court refuse to recognize the plaintiffs’ actual position? Probably because of its force. The parallels between partisan vote dilution and racial vote dilution go on and on, and make it impossible to distinguish between the doctrines’ justiciability. First, both doctrines require proof of discriminatory intent. Second, the vote dilution condemned by both doctrines operates through the cracking and packing of groups of disfavored voters. Third, this dilution can only occur when members of both the favored and disfavored groups are politically cohesive. Fourth, the dilution can only be discerned by looking beyond the boundaries of a single district to the entire region where the disfavored group’s influence is abridged. And fifth, and most fundamentally, both claims “ask for a fair share of political power and influence” for the targeted group. Both claims, that is, ask for the very thing that, in the Court’s view, poses unsolvable “justiciability conundrums.”

Rucho’s silence about racial vote dilution, then, is extremely ominous. Does the Court no longer believe the doctrine exists? If so, decades of precedent would have to be discarded and the constitutional foundation of Section 2 of the Voting Rights Act would crumble into nothing. Or, only slightly less radically, does the Court think the doctrine exists but is nonjusticiable because it too involves “reallocating power and influence between political [groups]”? Then constitutional racial vote dilution claims would be unavailable but Section 2 suits might still be allowed to proceed. Or, probably most plausibly, did the Court fail to mention the doctrine because its existence complicated the Court’s effort to shut the door on partisan gerrymandering claims? Then these dire consequences wouldn’t necessarily follow—but the Court’s bad faith would be crystal clear. It’s the epitome of motivated, lawless reasoning to ignore a whole body of precedent just because it points in an awkward direction.

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