March 09, 2009

Initial Thoughts on Bartlett v. Strickland: Narrowing the Voting Rights Act to Save It?

This morning's decision by the Supreme Court in Bartlett v. Strickland significantly narrows the reach of section 2 of the Voting Rights Act, and does so in a way that suggests a possible way out of the constitutional challenge in the upcoming constitutional challenge to Section 5 of the Voting Rights Act. The bargain appears to be this: the Court will construe the Act in ever stingier ways in the name of saving the Act from being struck down as unconstitutional. While Justice Ginsburg in her short dissent urges Congress to amend Section 2 to allow for the kinds of claims raised in this case (much like Congress recently did in amending Section 5 to undo (or partially undo) the Court's decision in Georgia v. Ashcroft), it's a risky strategy before this Court, which could then strike down an amended section 2 as unconstitutional.

Here are a few other initial thoughts on this case, which could change after I reflect more on the opinions::

1. A mechanical, narrow way out. As John Hart Ely remarked about the one person, one vote rule, administrability is the "long suit" for the controlling Kennedy opinion (When I refer to "the Court" in this blog post, I mean the controlling Kennedy opinion). In future cases, if minority plaintiffs challenge a jurisdiction for failing to create a majority-minority district under Section 2 of the VRA, the jurisdiction can defend itself by showing that it was not possible to draw a reasonably compact majority-minority district with at least 50% of the voting age population. So even in a jurisdiction where there is racially polarized voting and a minority population near 50%, there is no section 2 violation for failing to draw a district predominantly containing members of the minority group and relying on a relatively small number of "crossover" white voters. The decision thus turns "50%" into a magic number, and will both reduce the number of majority-minority districts mandated by section 2 and also reduce some of the litigation surrounding section 2.

The Court reaches this decision by construing the language of section 2 (which is pretty vague and somewhat self-contradictory), the Court's decision in Gingles (which expressly left this issue open), and the canon of constitutional avoidance. On this latter point, the Court said that because this statute involves race: "There is an underlying principle of fundamental importance: We must be most cautious before interpreting a statute to require courts to make inquiries based on racial classifications and race-based predictions. The statutory mandate petitioners urge us to find in s 2 raises serious constitutional questions." In other words, to avoid having courts have to deal with difficult empirical questions involving the role of race in state and local politics, which could cause impermissible consideration of race in making of government decisions, section 2 should be read narrowly.

2. Remedying a Section 2 Violation without a Majority Minority District?. The Court makes clear that a jurisdiction would not necessarily have to draw such a district even if the protected minority group made up at least 50% of the population of a hypothetical majority-minority district; the jurisdiction might draw two coalitional districts. In this way, the move looks reminiscent of what the Court did in the section 5 context in Georgia v. Ashcroft, before it was reversed by Congress.

3. Implications for the Section 5 Challenge in NAMUDNO. On the last day of the term, the Court will consider the constitutionality of section 5 of the Voting Rights Act (not at issue in this case). I've written extensively on this question and hosted a blog forum on the topic. It is widely believed that Justice Kennedy will hold the deciding vote on section 5's constitutionality. The opinion today in Bartlett is likely to elicit a mild cheer from supporters of the Act's constitutionality. They will be heartened by this statement in the Court's opinion: "Some commentators suggest that racially polarized voting is waning--as evidenced by, for example, the election of minority candidates where a majority of voters are white. [Citations.] Still, racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions; and s 2 must be interpreted to ensure that continued progress." But it is clear that there is a serious price to pay: an emasculated reading of the Act. Justice Kennedy goes on in the opinion to note the "irony" if section 2 "were interpreted to entrench racial differences by expanding 'a statute meant to hasten the waning of racism in American politics.'" This suggests that if Justice Kennedy votes to uphold section 5, it will be a section 5 whose reach becomes ever narrower.

4. Important Open Question Regarding Latino Majority-Minority Districts. I was struck in reading the Justice Kennedy opinion over how the Court phrased the test before it: "Do minorities make up more than 50 percent of the voting age population in the relevant geographic area? (My emphasis.) Note that the Court does not speak of citizen voting age population. That's not an issue when it comes to African-American majority-minority districts, as in this case, but is an issue in Latino majority districts. It is interesting that Justice Souter's dissent speaks repeatedly of "CVAP" (citizen voting age population) but that's not the standard in the Kennedy opinion. It may leave room for litigation on this important citizenship question just before the next round of redistricting which could be significant.

Posted by Rick Hasen at March 9, 2009 09:03 AM