Here is Chris Elmendorf’s latest guest blog post:

In my last two posts, I argued that constitutional doubts about Section 2 could be resolved by conditioning liability on a showing that the plaintiffs’ injury resulted from race-biased decisionmaking by public officials or the majority-group electorate.  Though it’s clear from the legislative history that liability under Section 2 does not depend on proof of intentional discrimination by conventional state actors, the text and legislative history of Section 2 are compatible with a requirement that plaintiffs show “to a significant likelihood” that the decisions in question were infected by racial bias (prejudice or stereotyping).

However, if the courts were to hold that Section 2 demands this “significant likelihood” showing, the courts would for all intents and purposes be acting as lawmakers.  The text of Section 2, though compatible with this requirement, certainly doesn’t suggest it, nor did any member of the enacting Congress.

My post today addresses two questions about judicial lawmaking authority under Section 2.  First, when Congress amended Section 2 in response to City of Mobile v. Bolden, did Congress delegate authority to the courts to play the role of creative partner in developing a common law of racially fair elections, or did Congress intend to fix a particular legal standard in place?  Second, to the extent that courts have lawmaking authority under Section 2, should Section 2 precedents have the weak stare effect of precedents under common law statutes (like the Sherman Act), or the “super strong” stare decisis characteristic of most statutory precedents?

These questions may seem abstruse, but they have significant practical implications.  If the courts have common-lawmaking authority under Section 2, then not only may they establish the proposed “significant likelihood” requirement, they may also read Section 2 as supporting new types of claims that were not even envisioned by the enacting Congress.

For example, the courts could and probably should hold that Section 2 authorizes what my paper calls “depolarization claims”–challenges to electoral arrangements that unnecessarily induce or sustain race-based voting by the majority group, irrespective of minority political cohesion or the election of minority candidates.  As my paper explains, depolarization claims would further the overarching purpose of the VRA (to “hasten the waning of racism in American politics”).  They could also be tied, loosely, to the text and legislative history of Section 2 (which indicate that “participation” injuries are actionable even if the injury does not prevent the minority community from electing a suitable number of its candidates of choice), as well as the Supreme Court’s pre-Bolden vote dilution jurisprudence (which treats racial prejudice by the majority-group electorate as impairing minority political participation).  Still, depolarization claims are sufficiently far removed from the thinking of the enacting Congress that, in my view, they should be recognized by the courts only insofar as Section 2 is understood to delegate common-lawmaking authority.

The practical relevance of the other judicial authority question–whether Section 2 precedents should presumptively receive strong or weak stare decisis–is not hard to see.  In the thirty years that have passed since Congress enacted the results test, Section 2 has become encrusted with judicial precedents.  The effective reach today of any new theory of how Section 2 should be understood obviously depends on whether inconsistent preferences may be freely jettisoned.

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Let’s start with the question of whether Section 2 delegates common lawmaking authority to the courts, or whether Congress meant to fix a particular legal standard in place.  It is unmistakably clear from Section 2’s text and legislative history that Congress intended to restore the pre-Bolden status quo.  But that status quo can be understood in static or dynamic terms.  Prior to Bolden, there was both a legal standard—a protocol—for judging unconstitutional vote dilution, and a process of doctrinal evolution.

The protocol was inchoate, and there can be little doubt that it was going to be refined.  To adjudicate a constitutional vote dilution claim, a court would (1) duly note that the plaintiff’s claim requires “evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question”; (2) make findings regarding the presence or absence of any number of factors related to present and past discrimination against minorities, minority political participation, minority representation, and the nuts and bolts of the electoral system at issue; and (3) conclude with an unexplained normative judgment about whether the findings, viewed in totality, warrant a federal court order replacing the challenged electoral arrangements with something more to the plaintiffs’ liking.  The Bolden plurality opinion represented only one of many crystallizing possibilities open to the Court at the time.

Yet the fact that some normative and doctrinal refinement of the pre-Bolden protocol was likely does not mean that it remained permissible following the 1982 amendments.  Congress might have meant to lock the pre-Bolden protocol in place, rather than to authorize a process of doctrinal evolution.  Alas, the legislative history sheds no light on this question.  It was simply absent from the congressional debates.

How should we choose, then, between what my paper calls “protocol” (static) and “partnership” (dynamic) understandings of the 1982 Amendments?  My paper sketches a few policy and constitutional arguments for the partnership understanding, but at this late date the argument from judicial practice and congressional acquiescence is probably more important.  The courts, most especially the Supreme Court, have from the get-go construed Section 2 pragmatically.  The Supreme Court has undertaken to structure and to limit Section 2 claims, rather than leaving district judges with the freedom to find liability whenever the judge thinks the “totality of circumstances” warrant a change.  Given this practice, the fact that Congress in 1982 did not specifically contemplate depolarization claims or my proposed “significant likelihood” requirement should not prevent the courts today from reading Section 2 as I have suggested.

What about stare decisis?  One might think that if Section 2 provides for judicial development of a common law of racially fair elections, then Section 2 precedents should have the weak stare decisis effect of ordinary common law precedents.  This conclusion is facially plausible but not necessary.  A rational congressperson who votes for a bill that devolves partnership responsibilities on the courts might view the “super strong” statutory stare decisis convention as a useful restraint on courts in the exercise of their policymaking responsibilities, or simply conclude that policymaking benefits of weak stare decisis are outweighed by the costs of legal uncertainty.

In Sherman Act cases, the Supreme Court bottomed its flexible approach to precedent on the intent of the enacting Congress.  But as I’ve noted, the legislative history of Section 2 is bereft of pertinent guidance.

There is, however, a strong policy argument for treating the stare decisis effect of Section 2 precedents as presumptively weak–if one accepts the “race premises” of the judicial center (the audience for whom my paper was written).  Since the mid-1970s, pivotal Justices on the Supreme Court have maintained (1) that state action singling out particular racial groups for favored treatment is inherently divisive, (2) that the organization of politics on racial lines tends to inflame racial conflict, and (3) that the persistent correlation between race and socioeconomic outcomes represents a serious, festering wound in American society, given our history of discrimination.

These premises, which clearly inform equal protection jurisprudence, also have implications for statutory interpretation. They would support a substantive canon favoring dynamic interpretation and weak stare decisis for statutes that seek to remedy racial discrimination and its legacy.  This canon would, in effect, make the courts rather than the legislature the primary lawmaker in the event of textual ambiguity.  Given the premises of the judicial center, this is as it should be.  Judicial decisions generally receive little public attention; legislative decisions receive much more.  Politically insulated and operating largely out of public view, the courts may remedy racial discrimination and its legacy without engendering, or pandering to, a divisive “racial politics.”

The freedom to overrule statutory precedents is essential to this vision of courts as frontline policymakers on questions of race.  Part of the courts’ job is to discourage narrow racial electioneering and legislative activity.  To give stare decisis effect to outdated precedents is to risk a political campaign for their overhaul.  By updating those precedents, the courts may preempt or quell racialized political conflict.

Note finally that even if the courts do not categorize Section 2 as a “common law statute” for stare decisis purposes, the courts will have strong grounds for overruling those Section 2 precedents that rest on the constitutional avoidance canon if the courts accept my account of what plaintiffs must show by way of racial bias, and my account of Section 2’s constitutional function.  The Supreme Court has not hesitated to dump statutory precedents that rest on the avoidance canon when subsequent developments obviate the feared constitutional problem.