Candidate Race and Section 2 of the Voting Rights Act
Pedro Juan Orduz
Since its signing in 1965, the Voting Rights Act has permeated every aspect of election law in the United States. One of the most important sections of the VRA is Section 2, which holds that “No … standard, practice, or procedure shall be imposed … by any State … in a manner which results in a[n] … abridgement of the right of any citizen … to vote on account of race or color.” [1] One frequent area of litigation has been the drawing of legislative districts. In 1980, the Supreme Court ruled in Mobile v. Bolden that for plaintiffs to prove that legislative districts violated §2, they had to show that the districts were drawn with “discriminatory intent.” [2] In response, Congress amended §2 to say that discriminatory intent was no longer required for plaintiffs to prove §2 discrimination. [3] Instead, courts should now look at the “totality of the circumstances” in determining a §2 violation. [4] In other words, the court was now to consider whether the result—regardless of intent—discriminated against minority voters in a given area. [5] However, Congress also included a proviso stating that the law explicitly did not give protected minorities a right to proportional representation. [6]
The Court first tested the revised §2 in Thornburg v. Gingles. [7] In Gingles, black voters argued that seven state legislative districts in North Carolina violated §2 by abridging their right to elect their own representatives. [8] They alleged that the districts, as drawn, unlawfully diluted their voting power. [9] The Court unanimously affirmed that six of the seven districts violated §2 and needed to be redrawn. [10] In doing so, the Court, in an opinion written by Justice William Brennan, established a three-part test for determining §2 liability: first, that the minority group be “sufficiently large and geographically compact to constitute a majority in a single-member district”; second, that it be “politically cohesive,” meaning that it had a unified and unique set of interests setting itself apart from the majority; and third, that “the white majority [vote] sufficiently as a bloc to enable it … usually to defeat the minority’s preferred candidate.” [11]
Although the justices were unanimous about the final judgment in the case and the importance of considering the factors of the Gingles test when determining §2 liability, they were fractured about how to approach future vote-dilution districting claims. [12] No fewer than four justices wrote an opinion. [13] One of the areas they disagreed about was whether the race of the candidate—as opposed to that of the voters—mattered. Brennan, in a part of his opinion that did not have a majority, argued that what mattered was “the status of the candidate as the chosen representative of a particular racial group, not the race of the candidate,” and that “only the race of the voter, not the race of the candidate, is relevant to vote dilution analysis.” [14] Justice Byron White, in his concurrence, disagreed:
Suppose an eight-member multimember district that is 60% white and 40% black, the blacks being geographically located so that two safe black single-member districts could be drawn. Suppose further that there are six white and two black Democrats running against six white and two black Republicans. Under Justice Brennan’s test, there would be polarized voting and a likely § 2 violation if all the Republicans, including the two blacks, are elected, and 80% of the blacks in the predominantly black areas vote Democratic. I take it that there would also be a violation in a single-member district that is 60% black, but enough of the blacks vote with the whites to elect a black candidate who is not the choice of the majority of black voters. This is interest-group politics rather than a rule hedging against racial discrimination. [15]
White argued that Brennan’s formulation gives “an entitlement to victory rather than simply the ability to compete on the same level as other candidates in the case.” [16] O’Connor was also skeptical about Brennan’s formulation, which, she argued, did not allow for other reasons why white voters might not vote for minority candidates. [17] Because none of these opinions commanded a majority, Gingles left unanswered the question of how to properly weight a candidate’s race. [18]
This ambiguity was perhaps easier to manage when blacks were the biggest majority group nationwide by far, [19] black voters were overwhelmingly Democratic, [20] and there were no black Republicans elected to federal office. [21] Over the past four decades, however, these factors have become increasingly muddled. Nationwide, non-Hispanic blacks are now only the second-biggest minority group, behind Hispanics, and are only twice the size of Asians. [22] Moreover, the latter two groups feature much more partisan diversity than blacks do. [23] There are currently more majority-Hispanic seats (forty) than majority-black seats (eleven). [24] What does it mean for the second prong of the Gingles test if minority groups have much weaker partisan majorities for one party or another? What of a largely black and Hispanic district—as exists in many cities today—in which the black majority “votes sufficiently as a bloc … usually to defeat the minority’s preferred candidate”? [25]
White’s hypothetical becomes even more salient today when considering the shifting demographics of minority legislators. As the country has gotten more diverse and §2 law has become more developed, the number of majority-minority districts has increased. [26] The number of minority legislators from majority-minority districts has concomitantly increased, but the number of minority legislators from non-majority-minority districts has increased even faster, from six when Gingles was decided to thirty-six today. [27] The number of black representatives today far outstrips the number of black-majority and -near-majority seats. [28] Ten percent of Republican lawmakers are minorities—low compared to Democrats, but on a significant upward trend. The VRA and Gingles were written at a time when racial and political polarization were much starker than they are today. As racial boundaries get scrambled and race becomes less predictive of a person’s vote, the Court will have to interpret decades-old laws in an increasingly different political framework.
Voting Rights Act Amendments of 1982. Pub. L. 97-205, 2(a), 96 Stat. 134.
City of Mobile v. Bolden. 446 U.S. 55, 74 (1980).
Comm. on the Judiciary, Report of the Committee on the Judiciary of the United States on S. 1992 with Additional, Minority, and Supplemental Views. 97th Congress, S. Rep. 97-417, 2 (1982).
Pub. L. 97-205, §2(b), 96 Stat. 134.
Comm. on the Judiciary, 2.
Pub. L. 97-205.
Thornburg v. Gingles, 478 U.S. 30, 36 (1986).
Ibid, 35.
Ibid, 46.
Ibid, 42.
Ibid, 50–51.
Paul W. Jacobs and Timothy G. O’Rourke. “Racial Polarization in Vote Dilution Cases under Section 2 of the Voting Rights Act: The Impact of Thornburg v. Gingles.” Journal of Law & Politics 3, no. 2 (Fall 1986): 298, HeinOnline.
Thornburg v. Gingles, 33.
Ibid, 68.
Ibid, 83.
Amy Rublin. “The Incompatibility of Competitive Majority-Minority Districts and Thornburg v. Gingles.” Buffalo Public Interest Law Journal 29 (2010–11): 134, HeinOnline.
Thornburg v. Gingles, 100.
Ibid, 30.
General Social and Economic Characteristics: 1980, Bureau of the Census. (Washington, DC, 1983).
“How Groups Voted in 1984.” Roper Center for Public Opinion Research, https://ropercenter.cornell.edu/how-groups-voted-1984.
“Black-American Members by Congress.” Office of the Historian, House of Representatives, https://history.house.gov/Exhibitions-and-Publications/BAIC/Historical-Data/Black-American-Representatives-and-Senators-by-Con-gress/.
“Profile of General Population and Housing Characteristics.” United States Census Bureau, https://data.census.gov/table?g=010XX00US&d=DEC+Demographic+Profile (2020).
“How Groups Voted in 2020.” Roper Center for Public Opinion Research, https://ropercenter.cornell.edu/how-groups-voted-2020.
Geoffrey Skelley, “How Majority-Minority Districts Fueled Diversity in Congress,” FiveThirtyEight, August 14, 2023, https://fivethirtyeight.com/features/majority-minority-congressional-districts-diversity-representation/.
Thornburg v. Gingles, 51.
Skelley, Majority-Minority Districts.
Ibid.
Li Zhou.“The Paradox at the Heart of the Most Diverse Congress Ever.” Vox, January 10, 2023, https://www.vox.com/policy-and-politics/2023/1/10/23539585/congress-diverse-republicans-house.