“Realizing the Right to Vote: The Story of Thornburg v. Gingles”

Dan Tokaji has posted this draft on SSRN (forthcoming, Election Law Stories).  Here is the abstract;

Justice William Brennan’s opinion in Thornburg v. Gingles is among the most consequential and enduring in the election law canon. Gingles established a three-part test that plaintiffs must satisfy to prevail on a racial vote dilution claim under Section 2 of the Voting Rights Act. The Gingles doctrine led to the transformation of representation at every level of government, compelling the creation of districts from which racial minorities could elect their preferred candidates. It remains a cornerstone of our voting rights law and a centerpiece of Justice Brennan’s legacy.

This chapter tells the story of Gingles. It begins by travelling back over two centuries of North Carolina history, including the patently unconstitutional disfranchisement of African Americans engineered by Charles Brantley Aycock, elected the state’s governor in 1900. After reviewing the history of the Voting Rights Act of 1965 and its 1982 amendments, the chapter delves into the backstory of the Gingles litigation, most notably the previously untold drafting history of Justice Brennan’s opinion. The chapter concludes with a discussion of the consequences of Gingles and disagreements over the right to vote that still rage today, in North Carolina and across the country.

Several of the players in the Gingles drama would become renowned for their subsequent accomplishments as lawyers, judges, and scholars. But the most surprising aspect of Gingles’s history is how little discussion there was of the law as it was being litigated. In the district court, through oral argument in Supreme Court, and even up to the first draft of the opinion, the focus was almost entirely on the facts. The now-canonical Gingles preconditions did not emerge until the second draft of the opinion. This doctrine would not have become law, but for the unrelenting efforts of Justice Brennan to keep a majority for the core of his opinion, which included switching his vote on one of the challenged districts to hold on to the all-important fifth vote on the Court. The story of Gingles is thus a revealing example of how law gets made and how that law can change the world.


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