Doug Spencer: A Rare Purposive Reading of the Voting Rights Act

The following is a guest post from Doug Spencer:

There has been a lot of attention lately on the impending narrowing of Section 2 of the VRA, from redistricting to vote denial cases. Thus, I wanted to flag yesterday’s opinion from the Eastern District of Virginia that endorses the view that minority coalitions can bring claims under Section 2. Judge Jackson, whose 135-page opinion is as meticulous as any I’ve ever read, notes that “the legislative history of the VRA shows that Congress intended for broad protection of minorities as a group of citizens” (slip op. at 49). Judge Jackson’s purposive reading of the VRA could potentially open the door to stronger protections of minority voting rights, particularly in places with significant multiracial populations, but where no single racial minority group is large enough or compact enough to form a majority-minority district as required under Bartlett.

Disclaimer: I was one of the trial experts on behalf of the plaintiffs. However, I don’t want to focus on any of the expert reports or statistical conclusions in the case. Instead, I want to draw attention to the careful analysis by Judge Jackson for why coalitional claims are cognizable under Section 2.

Most Section 2 litigation involves a single minority group whose voting rights have been denied or abridged by a voting qualification, standard, practice, or procedure. In today’s opinion out of Virginia Beach, however, plaintiffs comprised Black, Hispanic, and Asian voters whose voting rights were found to have been collectively abridged by the city’s use of at-large elections. Judge Jackson is not the first judge to allow a coalitional claim, nor the first to find liability for a coalitional claim under Section 2. But the Circuits have split on this question. In 1986, a district court in Texas applied the just-announced Ginglesfactors in a case filed jointly by Mexican-American and Black voters. The court acknowledged there were “many cultural and ethnic differences between the two groups” but held that they shared something in common that was more germane to the Voting Rights Act: a history of discrimination by the white majority that left them widely excluded from effective political participation. The Fifth Circuit endorsed this view of the VRA in 1987 (citing to Chandler Davidson). The Ninth Circuit followed suit that same year, the Eleventh Circuit followed three years later, and the Second Circuit just two years after that. 

In contrast, the Sixth Circuit rejected a lower court ruling in 1992 that protected minorities could join together and be treated as a single protected class under Section 2. The court homed in on the language of Section 2, which protects “members of a class of citizens” (noting the singular class), and also pointed to some perceived logistical difficulties in reconciling coalitional claims with Gingles. No other Circuit has adopted this view, and the Supreme Court sidestepped this issue altogether in 1993.

In Judge Jackson’s view, the Sixth Circuit got it wrong. As he noted “based on the presumptive last antecedent rule of statutory interpretation, the VRA limited protection to those ‘class of citizens listed in subsection (a).’ Accordingly, it is not the singular class that must be composed of a racial or language minority protected under subsection (a) but rather a category of citizens who make up that class . . . nothing in the statutory text requires each member of ‘a class’ to be of the same race, color, or language minority status.” (slip op. at 47). Judge Jackson also notes that coalitional claims are both congruent and workable under Gingles and he dismisses any logistical concerns. But he also argues that coalitional claims are not just about decoding grammar or logistics. In his words, limiting VRA claims to single minorities would “repeat the long history of how government has legally and narrowly constructed race, albeit differently for various minority groups, with the common purpose of furthering discrimination” (slip op. at 48).

Perhaps most importantly, Judge Jackson is unusually attentive to the dynamics of a potential coalitional claim. Minority groups are not coalitions ipso facto. Instead, coalitions represent minority groups that share political preferences. In other words, there must be evidence of inter-group cohesion in addition to racially polarized voting. The traditional statistical tools of ecological inference may not always be up to the task, since some minority groups may be too small for the models to generate reliable estimates. Thus, while statistical evidence is necessary, it may not be sufficient to prove inter-group cohesion. In Virginia Beach, qualitative evidence, such as testimony from witnesses who attested to their shared political preferences and goals, proved a useful supplement.

The Fourth Circuit, relatively balanced with 8 Democratic appointees and 7 Republican appointees, has never directly addressed the issue of coalitional claims. Given Judge Jackson’s careful analysis, I would be surprised if this part of his holding were overturned. However, even if the Fourth Circuit endorses this purposive reading of the VRA, a circuit split remains and the issue could pique the interest of a Supreme Court that seems likely to read Section 2 as narrowly as possible.

In the meantime, the promise of coalitional claims serves as a recognition of the shared history of discrimination that has prevented the effective political participation among various racial and language minorities in the United States. This recognition is especially important in the face of rising white identity politics, and an increasingly multiracial population. In practice, coalitional claims undercut the safe harbor that permits discrimination so long as a single minority group is too small or too spatially dispersed to satisfy Bartlett. But coalitional claims may prove more important than that, forcing us to reconceptualize how to best secure the VRA’s promise that all members of the electorate have an equal opportunity to participate in the political process and elect representatives of their choice. We shouldn’t be surprised that such a broad rethinking of political power is taking place on a “distinctively racialized canvas.” Instead, we should celebrate that Judge Jackson’s ruling has provided us this opportunity for rethinking in the first place.

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