Elemendorf: Making Sense of Section 2: Part I

Here is Chris Elmendorf’s first guest blog post:

Rick Hasen has kindly invited me to guest-blog this week about my forthcoming article,  Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes, 160 U. Pa. L. Rev. (2012).

Section 2, the Voting Rights Act’s core provision of nationwide application, has fallen into disfavor.  Conservative critics portray it as conceptually opaque, counterproductive in effect, and quite possibly unconstitutional.  The Supreme Court has cabined Section 2 with severe gatekeeping conditions.  In vote dilution cases, plaintiffs who cannot show the possibility of establishing a compact, majority-minority, single-member district—holding constant the size of the governing body—will be kicked out of court without any consideration of the remedial arrangements they propose.  The constitutional avoidance canon has been a mainstay of these decisions.  Further and more drastic interpretive narrowings are likely.

My paper provides an interpretive reconstruction of Section 2 that responds to the conservative critique, while accepting the jurisprudential and normative suppositions of the now-quite-conservative judicial center.

If the courts accept my reconstruction, the Voting Rights Act will remain surprisingly robust.  Plaintiffs would not have to prove intentional discrimination by conventional state actors.  Remedies designed to enable the election of minority candidates would continue to be issued.  Plaintiffs could challenge presently untouchable electoral arrangements that encourage or perpetuate racially biased voting.  And courts would have strong grounds to overrule barrier-erecting Section 2 precedents that rest on the avoidance canon.

Three ideas anchor my account of Section 2.  I’ll develop them in blog posts over the next few days, but for now, here’s a preview.

Injury, and Proof Thereof.  Section 2 on my account is centrally concerned with alleviating burdens on minority political participation and representation that result from race-biased (prejudiced or stereotyped) decisionmaking by majority-group actors.  Section 2 plaintiffs should be required to trace the injury of which they complain to biased decisions, whether by conventional state actors or by the majority-group electorate.  However, plaintiffs need not prove racial bias in accordance with the conventional, preponderance-of-the-evidence standard.  It should suffice for plaintiffs to show a “significant likelihood” of bias, rather than proving it more likely than not.  The approach I suggest reconciles the legislative history’s conflicting messages about Section 2 and intentional discrimination.  And, when paired with my next idea, it substantially resolves constitutional doubts about Section 2.

Section 2’s Constitutional Function.  The constitutional function of Section 2 is to cure, or compensate for, racially biased state action that adversely affects minorities’ opportunity to participate in the political process and to elect responsive candidates.  Of central importance, Section 2 ameliorates a type of constitutional violation that cannot be remedied through ordinary constitutional litigation: the election outcome that is unconstitutional because of the racial basis for the electorate’s verdict.  I argue that, though the individual citizen may have a First Amendment right to vote for “whatever reason he pleases,” the electorate as a whole is a state actor when it puts in office an official who wields or directs the coercive authority of the state.  Yet electorate-motive challenges to the outcome of an election for representative almost certainly should be dismissed on political question grounds.  Because the underlying constitutional norm cannot be protected by the courts absent congressional enforcement legislation, the “congruence and proportionality” test for constitutional validity should be applied to Section 2 with a very light touch.

Section 2’s Delegation.  Section 2 should be understood as a common law statute, or statutory section.  It delegates authority to the courts to develop a flexible, evolving body of law in response to infections of the electoral process by racial bias.  Section 2 precedents deserve the weak stare decisis effect of precedents under the Sherman Act, the paradigmatic common law statute, rather than the “super strong” stare decisis typical of statutory precedents.  The weak stare decisis effect of Section 2 precedents means, among other things, that new understandings of what Section 2 aims to accomplish (and how) can still have a large effect on Section 2 jurisprudence, notwithstanding the accretion of case law over the last thirty years.

In blog posts over the next several days, I will explain the critique of Section 2 that motivates my paper, the nub of my response, and some practical implications.  I will pay special attention to the question of why election outcomes should be thought unconstitutional if the electorate acts on the basis of racial considerations that the Constitution denies to the state.  This idea may strike some readers as peculiar, and my constitutional defense of Section 2 depends upon it.  I very much look forward to readers’ comments.

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