The following is a guest post from Ellen Katz, part of the #ELB20th Anniversary retrospective:

Don’t Change A Thing?

I found myself humming this early 80s INXS song shortly after receiving Rick’s kind invitation to post something marking the 20th anniversary of the Election Law Blog. Blogging was a new form of communication when Rick got started in 2003, and through his truly tireless efforts, ELB grew into both a central tool for keeping up with election law news and commentary and a jumping off point for scholarship of varied sorts. Don’t Change a Thing may be an apt instruction for ELB going forward.

I’ll admit, however, it was not the expectation that Rick will keep at it that evoked this old song (or, if you prefer, the more recent Bruce Springsteen cover). It was instead Rick’s suggestion that contributors explore an election law issue from 2003. In this context, and in an admittedly less celebratory sense, the song’s mantra captures what has become the dominant judicial stance in a certain set of election-related cases. More precisely, federal courts, and the Supreme Court in particular, presently approach cases in which a state electoral practice is challenged under federal law with the presumption that the State, well, need not change a thing. Federal law, be it statutory or constitutional, is viewed as largely agnostic as to which practice among many a State might select when structuring elections. It is a stance with roots, and perhaps even an origin story, in a case decided only months after ELB got going.  

Just short of twenty years ago—on June 26, 2003, to be precise—the Supreme Court decided that Georgia need not change a thing in the state senate redistricting plan it had adopted following the 2000 Census. Georgia v. Ashcroftreverseda lower court decision that had found the plan, which reduced the Black population in various newly-drawn districts, to be discriminatory under Section 5 of the Voting Rights Act. Justice O’Connor’s majority opinion did not deny that the plan left Black voters with diminished ability to elect candidates of choice, but nevertheless concluded that, under the VRA, Georgia could choose to enact a plan that did just that. Georgia might have opted to concentrate minority voters in fewer districts or, as it opted to do, distribute them more widely among a greater number. Either way, the Court explained, “Section 5 does not dictate that a State must pick one of these methods of redistricting over another.”

Credible, albeit not indisputable, arguments supported the claim that the challenged plan better served Georgia’s Black residents than one that would have left Black voters more concentrated in fewer districts. Georgia v. Ashcroft, however, did not rest on that judgment. Instead, the Court read the VRA to leave Georgia with discretion to select whichever plan it preferred. The Court saw either approach as nondiscriminatory within the meaning of Section 5.

The determination that Georgia had such discretion struck many as not only novel, but wholly incompatible with the premise of Section 5 that covered jurisdictions must demonstrate new electoral rules to be nondiscriminatory before implementing them. Indeed, Justice Souter’s dissent charged that the decision would cause Section 5 to “simply drop out as a safeguard against the ‘unremitting and ingenious defiance of the Constitution’ that required the procedure of preclearance in the first place.”

Congress pushed back, overruling Georgia v. Ashcroft with a statutory amendment that prioritized the ability of minority voters to elect preferred representatives, however defined. That amendment, however, became inoperative after Shelby County v. Holder scrapped the VRA’s coverage formula and, with it, active enforcement of the Section 5 preclearance requirement. Perhaps needless to say, doing soleft States like Georgia free to exercise the discretion Georgia v. Ashcroft had recognized.

This hands-off approach has since spread well beyond the now-defunct preclearance regime. Over the last two decades, States and localities have come to enjoy similar discretion under Section 2 of the VRA. Here, too, Don’t Change a Thing has become the operating premise when electoral practices are challenged under Section 2 in federal court.Scores of decisions since Georgia v. Ashcroft have upheld state discretion to adopt redistricting plans and other practices alleged to be dilutive and hence discriminatory under Section 2. Courts have likewise found that, with few exceptions, Section 2 does not restrict state power to adopt strict voter identification requirements, restrictive early voting and absentee ballot procedures, and polling place limitations of various sorts. For these latter vote denial claims, the Supreme Court has recently announced several “guideposts,” some novel, some derived from lower court decisions, and all of which effectively direct courts to sustain challenged practices without modification.

The primacy of state discretion has also found expression in numerous cases involving claims that electoral practices unconstitutionally infringe the right vote. In this context as well, Don’t Change a Thing aptly captures the federal judicial stance. Applying the Anderson-Burdick test­­—which balances “the character and magnitude” of the burden imposed against “the precise interests put forward by the State as justifications for the burden imposed by its rule”—federal courts have repeatedly upheld state discretion to adopt the challenged practices. Because these cases typically involve concurrent challenges brought under Section 2, it is perhaps unsurprising that critical elements of the Anderson-Burdick inquiry have coalesced with the statutory analysis under Section 2, both directing federal courts to leave the challenged state practices unchanged.

Merrill v. Milligan, now pending in the Supreme Court, is likely to entrench Don’t Change a Thing yet further. Last year, a three-judge panel held that Alabama violated Section 2 by failing to include a second majority-Black district in its new congressional redistricting plan when longstanding Section 2 criteria indicated such a district was required.Chief Justice Roberts’s observation that the lower court “properly applied existing law” suggests Merrill will alter the statute significantly. To be sure, Alabama’s particular proposal for doing so—arguing that maps drawn without consideration of race can never violate Section 2–gained little traction at oral argument last fall. More likely, the Justices will immunize such race-neutral conduct from Section 2 liability as long as the conduct comports with traditional districting principles. Notably, to create the second Black-majority district the lower court read Section 2 to require, Alabama would have needed both to consider race expressly and to deviate from what it said were its traditional districting principles.And because reliance on those principles would not have produced a plan that contained the disputed district,the Court is unlikely to read Section 2 to require one. Don’t Change a Thing suggests as much, even if settled Section 2 doctrine presently requires precisely such deviation from traditional practices.

Such a ruling in Merrill would fall short of the broadest relief Alabama requests, and, thus, as a formal matter, leave Section 2 technically on the books. Still, much like Georgia v. Ashcroft did two decades ago, the decision would render the statute a shell of what Congress enacted it to be. Like Section 5, Section 2 (as amended in 1982) was not designed to be a mild salve but a decidedly forceful remedy for a wide range of electoral practices. And as Section 5 once was, Section 2 has been deployed in years past to disrupt and displace a myriad of discriminatory electoral structures nationwide. Don’t Change A Thing was not the premise on which Section 2 – or the VRA more broadly – was crafted and implemented for decades, but it defines its present trajectory with precision.