Chapter 7 Quick and Dirty: the New Misreading of the Voting Rights Act

CHAPTER 7 QUICK AND DIRTY: THE NEW MISREADING OF THE VOTING RIGHTS ACT

JUSTIN LEVITT^*

The Voting Rights Act is often hailed as the most successful civil rights statute in American history. It helped provide meaningful access to the ballot for tens of millions of minority citizens who had previously been entirely shut out of the process. Through its application to redistricting, it then helped translate those ballots into meaningful allocations of political power. Last year, 50-year retrospectives were in full bloom. The fire hoses and church bombings of 1960s Birmingham were inevitably juxtaposed with the successful passage of the Voting Rights Act. With respect to race relations in the United States, these are evocative referents for some of our collective worst and some of our collective best.¹

At the same time, the sepia images of film and print and collective memory do a serious disservice to the statute. Yes, the Voting Rights Act was designed to be a powerful tool to combat the most ham-handed Bull Connor racism. But it was also designed to be, and has become, so much more than that.

In reality, the Voting Rights Act is profoundly millennial in its sophisticated approach to race relations, with rich layers of multifaceted and anti-essentialist nuance. Decades of congressional and judicial tinkering have refined the law,² particularly as applied to the drawing of electoral districts and the resulting apportionment of political power. And now, when properly applied, the statute threads a narrow needle: it demands race-conscious remedies for race-based harm, but refuses to indulge racial presumptions along the way. That is, the statute recognizes the reality that people of similar racial or ethnic background sometimes have common political interests and that they sometimes face common political threats based on that background . . . but it steadfastly refuses to assume that they do.

Liability under the Voting Rights Act is rigorously responsive to pragmatic local context, political culture, and electoral cleavages among both minority and majority populations; the presence or absence of vote dilution is relentlessly subject to proof or refutation with real data.³ Any remedies that the Act may require are similarly tethered to the facts on the ground. Under some local conditions, the Voting Rights Act has a profound impact on electoral decisions; under others, it demands only a little; under still others, it demands nothing at all. And the obligations imposed by the Voting Rights Act may be substantively different from town to town in central Texas, south Texas, and west Texas⁴—or in Florida or Arizona or North Carolina or Wisconsin—because the statutory scheme understands that minority citizens are different, and inhabit different political environments, from town to town. The Voting Rights Act acknowledges attention to race and at the same time defiantly fights racial essentialism. This is the very model of a statutory scheme built for a 21st-century conception of race, ethnicity, and political voice.

And yet, there has emerged a troublesome tendency to understand the Voting Rights Act through the lens of a revisionist retrograde stereotype, treating the Act as if it demanded "safe" "black districts" and "Latino districts" wherever there are substantial minority populations.⁵ This approach, particularly notable in the redistricting of this decennial cycle, is as blunt and blunderbuss as the real statute is subtle and tailored. It inheres in the perception that the Act is a blunt mandate to tally and bundle minority voters into districts pegged at talismanic target percentages. That is, it treats the Act as a demographic imperative—a "racial entitlement"⁶—deaf to local political conditions. It turns the Act from a refined and sophisticated piece of federal legislation into a cartoon.

In several jurisdictions this cycle, entities drawing district lines—often but not always state legislators, and often but not always in regions with the most troublesome history of race relations—have substituted this shorthand version of the Voting Rights Act for the real thing. In some circumstances, the jurisdictions' reliance on crude demographic targets overconcentrates real minority political power; in other circumstances, it underconcentrates real minority political power.⁷ In still other circumstances, the real political effects are unclear, because the lure of the demographic assumption means that nobody has bothered to examine the real political effects. But in every circumstance, the notion that it is possible to rely on a few census statistics to guarantee compliance with the obligations of the Voting Rights Act betrays the central statutory insight. By assuming that functional political cleavages can be measured purely by percentage of citizen voting-age population, the troublesome approach imposes racial stereotypes on a statute designed to combat them.

The misreading has severe constitutional overtones. Though many of the current justices have serious misgivings about government attention to race, the Court has also repeatedly acknowledged that we are not yet "post-racial" and that holistic and nuanced consideration of race may still be an appropriate means to confront real racial injustice.⁸ In stark contrast to that vision, the simplistic demographic cartoon of the Voting Rights Act represents a conception of race consciousness that has repeatedly earned the Court's most emphatic ire.⁹

Legislative action in the most recent redistricting cycle has now squarely presented the suspect misreading of the Voting Rights Act for judicial review. Several states purportedly sought to comply with the Act when they redrew legislative district lines in 2011. Yet their version of compliance appears premised purely on demographic percentages—and thus, on demographic stereotype. In several of these states, the legislative action was challenged in litigation. Redistricting cases like these are often procedural oddities: when brought in federal court, they are normally heard by a specially designated trial panel—and if appealed, they proceed directly to the Supreme Court.¹⁰ Moreover, in contrast to the Court's discretion to hear or (far more frequently) reject petitions for writs of certiorari, the Supreme Court has an obligation to rule on each of these direct appeals. One has already been before the Court.¹¹ Others are coming.¹² And the litigation posture of the cases does not render obvious the shared misreading of the Act that connects them.

The cases' journey to the Court is both a threat and an opportunity. Two years ago, when the Court confronted reality and cartoon with respect to the Voting Rights Act, it chose cartoon. In 2013, in Shelby County v. Holder,¹³ the Court purported to address a portion of the Act placing particular jurisdictions under a special preclearance regime requiring federal review of electoral changes.¹⁴ Ostensibly, the Court reviewed Congress's judgment about which jurisdictions should be subject to the special preclearance procedure, and which should not. But in reality, the Court ruled on the validity of a simulacrum of the statutory provision, a popular image of the law rather than the actual law on the books.¹⁵

The new cases involve more of the substantive content of the Act, and a blunt approach to compliance with more pervasive consequences. If the Court again buys the ham-handed stereotype, the Act as a whole might be in jeopardy.

Early indications are refreshingly promising. Last Term, the Court's decision in Alabama Legislative Black Caucus v. Alabama seemed to cast cartoon aside.¹⁶ The case involved a portion of the Voting Rights Act prohibiting practices in Alabama that decrease racial and language minorities' ability to elect their preferred candidates of choice. Alabama defended its district lines by claiming that "mechanical racial targets"—the maintenance of specific existing demographic percentages—were necessary to satisfy the Act.¹⁷ The Court, reflecting the Act's nuanced distinction between demographic aggregation and political efficacy, disagreed.¹⁸ Justice Kennedy, the lone justice in the majority of both 2013 and 2015 cases, appears to have refocused on reality.

Yet the path forward is still not secure. The case just described concerned a portion of the Voting Rights Act that is no longer in place.¹⁹ That is, the 2015 Alabama case involved the means by which 2011 Alabama legislators complied with a statutory provision invalidated in 2013 by a different case out of Alabama. Plaintiffs chose to litigate their case as confined to one now-defunct statutory provision in one state, and it may be similarly tempting for the Court to cabin its ruling in the cases to come. It is not clear whether the Court believed it was confronting an anomaly of primarily historical significance. On the other hand, the Court may recognize that the approach of the Alabama legislators is connected to an ongoing approach in several other states, and connected specifically by the common reliance on a Voting Rights Act that does not exist. If the Court focuses on the actual legislation at hand, it should be able to distinguish the real statute's approach from that of its fictionalized retrograde cousin. Proper focus on local nuance and meaningful political power—as precedent demands—can restore the Voting Rights Act to a vehicle for fighting both racial discrimination and racial essentialism.

This chapter proceeds in three sections. Section I explains the Voting Rights Act and its constitutional context: the way that the real statute is designed to function. Section II then investigates the strange prominence in recent redistricting of a cartoon version of the Act that ignores the tailored nuance built into the statute. Section III explains why the simulacrum is not merely wrong, but also dangerous: it may yield guidance for decision makers that is more administrable, but it does so only at the cost of...