CHAPTER 17 NUTS AND BOLTS OF SECTION 2 VOTE DILUTION LITIGATION FROM THE DEFENSE PERSPECTIVE
VINCENT R. FONTANA AND BENJAMIN E. GRIFFITH
The Voting Rights Act (VRA) has long been referred to as the "crown jewel" of the Civil Rights Movement, and its success in eliminating a vast amount of voting discrimination on account of race has been phenomenal. One of the most powerful weapons in the federal anti-discrimination arsenal is section 2 as Congress amended it in 1982. Section 2 "prohibits any State or political subdivision from imposing any electoral practice which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color."1
This final chapter of America Votes! will address section 2 vote dilution cases from the perspective of two trial lawyers who have been defending such litigation for a combined total of over eight decades. The first half will focus on practical aspects of preparing the defense of a section 2 case, marshaling evidence relevant to the Gingles preconditions, Senate Report factors, and totality of the circumstances and carrying it through the conclusion of the case. The second half will address the sometimes problematic roles of race and partisanship in section 2 vote dilution litigation, pretrial discovery, summary judgment practice, and recent VRA decisions that have had a transforming effect on the way such cases are litigated.
I. Practical Considerations for Defending the Section 2 Case
The need to prepare a defense of a section 22 case does not only begin with the formal service of a summons and complaint. Rather, it can begin with an informal or formal investigation by the Justice Department (DOJ), or a request from the relevant minority community to adopt a single-member district system. In my experience, when the Justice Department starts to demand documents, you can be assured that that is the preamble to the filing of a lawsuit. As soon as any of these circumstances occur, all affected municipalities should begin to operate in a litigation mode.
Political subdivisions with an at-large system of election or a combination system of some elected from single member districts and some elected at large are the most exposed to a lawsuit if the number of minorities within that community has increased as a percentage of the total population and they have been unsuccessful in electing their candidate of choice. It should be noted, however, that at-large systems are not per se unconstitutional or necessarily in violation of the VRA.3 Furthermore, section 2 does not confer a right to proportional representation, but rather a right to participate equally in the political process.4
The leading section 2 case is Thornburg v. Gingles,5 wherein the Court set forth the parameters in determining whether there has been a violation of section 2. Initially the Court described certain preconditions that must be met by the plaintiff.6 Once these preconditions have been satisfied, the court must then determine whether under the totality of the circumstances, as described in Zimmer v. McKeithen,7 a section 2 violation has been proved.
A. THE GINGLES PRECONDITIONS
In evaluating whether a particular system of election violates the Voting Rights Act, a plaintiff must first establish each of the Gingles preconditions:
1. The racial group must be sufficiently large and geographically compact to constitute a majority in a single member district.
2. The relevant minority must be politically cohesive.
3. The White majority must vote sufficiently as a block to enable it in the absence of special circumstances usually to defeat the minority preferred candidate.8
Once the three Gingles factors are met, the court must consider whether, under the totality of the circumstances, minorities have been denied an equal opportunity to participate in the political process and to elect representatives of their choice.9
Many circuits have acknowledged that it would be the very unusual case in which plaintiffs can establish each of the three Gingles preconditions but still have failed to establish a violation of section 2 under the totality of the circumstances.10
However, failure to meet any one of the Gingles preconditions will result in dismissal of the lawsuit.11
B. THE SENATE FACTORS
In addition to establishing each of the three Gingles preconditions, a court must conduct an analysis of seven additional factors frequently referred to as the "Senate Factors" and two additional factors:
1. The extent of historical, official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, vote, or otherwise participate in the democratic process.
2. The extent to which voting in the elections of the state or political subdivision is racially polarized.
3. The extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single-shot provisions, or other voting practices or procedures that might enhance the opportunity for discrimination against the minority group.
4. If there is a candidate-slating process, whether the members of the minority group have been denied access to that process.
5. The extent to which members of the minority group in the state or political subdivision bear the effects of discrimination—in such areas as education, employment, and health—which hinder their ability to participate effectively in the political process.
6. Whether political campaigns have been characterized by racial appeals.
7. The extent to which members of a minority group have been elected to public office in the jurisdiction.
The two additional factors are:
8. Whether there is a lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group.
9. Whether the policy underlying the state or political subdivision's use of voting qualification, prerequisite to voting, or standard practice or procedure is tenuous.12
However, it should be noted that this list is not comprehensive or exclusive and that there is no requirement that any particular number of factors be proved, or that a majority of these point one way or another. Rather, courts are to engage in a searching, practical evaluation of the past and present reality and take a functional view of the political process.13 The court must consider all evidence that reasonably bears upon the opportunity that the challenged system in fact provides for minorities to participate and elect candidates of their choice.
The court in NAACP v. City of Columbia14 added two additional factors to the totality of the circumstances analysis beyond the seven original Senate Factors and two supplemental factors. Factor 10 considered by the court addressed the minority's support for the 4-2-1 system adopted by the voters to elect members of the City Council (four were elected in single member district, two at-large, and the mayor also elected at-large). The court found that the Black community had endorsed the 4-2-1 plan at issue in the lawsuit.15 The 11th factor considered by the court was that the 4-2-1 plan provided "genuine influence for blacks than the system proposed by the plaintiffs, while also 'deracializing' matters that come before the council of particular concern to the black community."16 This case seems to be the only one whereby the nine totality of the circumstances factors were expanded upon by a court.
C.ANALYSIS OF THE GINGLES PRECONDITIONS
1. The minority must be sufficiently large and geographically compact enough to constitute a majority in a single member district.
If the relevant minority cannot meet this requirement as in the case where the minority population is too small or is substantially integrated in the community, the challenged system (usually at-large) cannot be responsible for minority voters' inability to elect its candidates of choice.17 To satisfy this requirement one must first determine what the relevant minority is. In some cases it would be African-Americans only, in other communities it would involve Hispanics only, and still in others it could be a combination of African-Americans and Hispanics. In a few communities, the relevant minority would be American Indians or Asians.
The next inquiry is what percentage of the total population, voting age population, and citizen voting-age population is the relevant minority. Also relevant is the percentage of the total registration that is White and the relevant minority community.
Question: What data do you use to determine the statistics necessary to analyze whether a minority is sufficiently large and geographically compact to satisfy the first Gingles precondition? Clearly the voting age population as refined by citizenship set forth in the latest census data is the most reliable.18 In addition to census data, registration data can be used if such data are sufficiently reliable.19 Once the relevant statistics have been established the parties must determine what percentage of the minority community must be included within a single member district to satisfy the first Gingles precondition. Where the Hispanic community is the relevant minority, citizenship becomes an issue, more so than when the minority community consists of Blacks.
This issue was squarely addressed by the U.S. Supreme Court in Bartlett v. Strickland.20
The case began in a rather odd way. State officials contended that they were required to draw election districts in such a way as to allow a racial minority to join with other voters to elect the minority's candidate of choice, even where the racial minority was less than 50 percent of the voting age population in the district to be drawn. Also involved is the relevance of the state's constitutional requirement that in any districting plan, the state constitution's "Whole County Provision" must be considered.
The relevant district was District 18, which, under...
