Minority Representation and the Quest for Voting Equality

MINORITY REPRESENTATION AND THE QUEST FOR VOTING EQUALITY Minority Representation and the Quest for Voting Equality B...

Author: Bernard Grofman | Lisa Handley | Richard G. Niemi

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MINORITY REPRESENTATION AND THE QUEST FOR VOTING EQUALITY

Minority Representation and the Quest for Voting Equality BERNARD GROFMAN School of Social Sciences University of California, Irvine LISA HANDLEY Election Data Services Washington, DC RICHARD G. NIEMI Department of Political Science University of Rochester

CAMBRIDGE UNIVERSITY PRESS

Published by the Press Syndicate of the University of Cambridge The Pitt Building, Trumpington Street, Cambridge CB2 1RP 40 West 20th Street, New York, NY 10011-4211, USA 10 Stamford Road, Oakleigh, Victoria 3166, Australia © Cambridge University Press 1992 First published 1992 First paperback edition 1994 Library of Congress Cataloging-in-Publication Data Grofman, Bernard. Minority representation and the quest for voting equality / Bernard Grofman, Lisa Handley, Richard G. Niemi. p. cm. Includes index. 1. Afro-Americans - Suffrage. 2. Election districts - United states. 3. Representative government and representation - United States. I. Handley, Lisa. II. Niemi, Richard G. HI. Title. KF4893.G76 1992 324.6'2l08996073-dc20 92 -12041

cn> ISBN 0-521-39128-8 hardback ISBN 0-521-47764-6 paperback Transferred to digital printing 2003

Contents

Acknowledgments List of Tables Introduction 1. The Right to Vote and the Right to Representation The Two-Hundred-Year Struggle for Minority Voting Rights The 1965 Voting Rights Act Vote Dilution: The Right to Vote Versus the Right to Representation 2. The Evolution of a Vote Dilution Standard Through 1986 Section 5 Protection Against Vote Dilution Constitutional Protection Against Vote Dilution Congress Dictates a Vote Dilution Standard: The 1982 Amendments to the Voting Rights Act The Lower Courts Consider Amended Section 2 The Supreme Court Addresses Section 2: Thornburg v. Gingles 3. The Vote Dilution Standard in the Post-Gingles Era: Clarifications and Complications in the Lower Courts What Constitutes a "Sufficiently Large and Geographically Compact" Minority Group? When Is a Minority Group "Politically Cohesive"? How Does One Determine When the White Majority Votes Sufficiently as a Bloc to Enable It . . . Usually to Defeat the Minority's Preferred Candidate? 4. Defining and Measuring Racially Polarized Voting and Other Elements of the Totality of the Circumstances Defining Racial Bloc Voting Measuring Individual Voting Behavior

page vii viii 1 4 4 15 23 29 30 31 38 42 47 61 62 67 73 82 83 84

vi

Contents Commonsense Checks on Estimates of Bloc Voting Problems of Data Availability Special Issues Problems in Interpreting Racial Polarization How Reliable Are Estimates of Racial Bloc Voting? Other Elements of the Totality of the Circumstances

5. Vote Dilution in Single-Member Districts and Other Issues of the 1990s Considerations of Size Identifying Racial Gerrymanders Influence Districts An Equal Opportunity to Elect Candidates of Choice Runoff Elections Standards Other Than the Single-Member District

88 93 96 98 103 105 109 110 113 117 118 122 124

6. The Voting Rights Act and the Realistic Politics of Second Best: An Optimistic Look to the Future Legislative Intent and the Right to Vote Versus the Right to Representation A Color-blind Society Versus the Institutionalization of Racial/ Ethnic Divisions The Specter of Proportional Representation The Voting Rights Act and the Future of American Politics

131 132 134

Notes

138

References

154

Index of cases

163

Index

165

129 129

Acknowledgments

This book grows out of our concerns as citizens about the representation of minority groups in public office and out of our concerns as political scientists about the manner and degree of political representation in the United States. It draws on our involvement in court cases relating to the Voting Rights Act as well as on our broader and more theoretical writings about representation generally. We are indebted to many who helped along the way: to attorneys and other expert witnesses too numerous to name, to coauthors (especially Mike Migalski, Nick Noviello, and Kim Brace), and to readers of the manuscript (especially Chandler Davidson and Robert Berman), and to Harold Stanley for helpful conversations. We have learned much from them; however, we sometimes rejected their advice, so any blame for errors or misinterpretations must rest squarely on our shoulders. We also are happy to acknowledge the bibliographic assistance of Dorothy Gormick. Chapters 1 through 3 draw heavily on Lisa Handley's doctoral dissertation. Chapter 4 and parts of Chapter 5 draw on Brace, Grofman, Handley, and Niemi (1988); Grofman (1991b, 1992); Grofman and Handley (1989, 1991, 1992); Grofman and Migalski (1988); and Grofman, Migalski, and Noviello (1985). Some of this research was supported by National Science Foundation Grant SES #88-09392 to Chandler Davidson and Bernard Grofman and by NSF Grant SES #81-07754 to Grofman.

vn

List of Tables

Table 1. Registration by race, before and after 1965, in southern states covered by the Voting Rights Act (percent)

23

Table 2. Registration by race since 1970 in southern states covered by the Voting Rights Act (percent)

24

Table 3. Turnout in the 1964 and 1968 presidential elections in southern states covered by the Voting Rights Act (percent)

25

Table 4. Turnout of blacks and whites in presidential elections since 1964 for the United States and the South (percent)

26

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Introduction

Even as late as 1960, voter registration rates among whites in the South were more than twice those of blacks, and in Mississippi it is estimated that less than 5 percent of black adults were registered to vote. In the three decades since then, legal barriers to minority electoral participation have largely fallen, and voting rates of blacks have risen substantially. Yet representation of minorities remains problematic, with black and Hispanic officeholding at all levels of government only a fraction of their percentages in the population.1 There are two very different explanations for this situation, leading to diametrically opposed policy recommendations. Minorities themselves, and many civil rights attorneys, see the principal barriers to greater representation as electoral arrangements (including at-large elections and gerrymandered districts) and the continued reluctance of white/Anglo voters to vote for minority candidates. They attribute much of the recent success of minorities to voting rights legislation and to ceaseless litigation to protect minority voting rights and end the use of dilutive voting systems (e.g., Parker, 1990). They sometimes call for nongeographically based interpretations of existing election laws (e.g., Karlan, 1989) and a fundamental restructuring of the mechanisms of representation (Guinier, 1991). On the other hand, a number of social scientists, and some white and minority politicians, point to the failure of minorities themselves and of politicians generally to seek aggressively the cross-racial coalitions necessary for minority success. They emphasize socioeconomic differences that might account for disparities in political power as well as the liabilities inherent in "affirmative action in the electoral sphere" (Thernstrom, 1987, p. 242). They also raise the specter of proportional representation and the prospect of an institutionalization of present racial divisiveness (e.g., Butler, 1982; Graham, 1992; O'Rourke, 1992; Thernstrom, 1985, 1987). Accordingly, they advocate a less expansive interpretation of voting rights legislation. What can be said with certainty is that the subject of minority representation will remain on the forefront of electoral politics for at least the next decade. During the 1990s round of districting, most redistricting litigation will center 1

2

Minority Representation and Voting Equality

on issues of racial fairness, perhaps in combination with new concerns such as the compactness of minority and majority districts. We see no reversal of the pattern of the 1980s, in which there were far more cases involving racial and linguistic minorities than cases dealing with one person, one vote, or other issues. Moreover, as we work our way through the 1990s, an increasing number of cases involving Hispanics, Asian-Americans, and Native Americans will be added to cases concerning the voting rights of African-Americans. A major concern in this book is the role of social scientists and social science testimony in voting rights cases. As we look to the voting rights litigation of the 1990s, we can anticipate that social science testimony will continue to play a critical role, as it did in the 1980s. Whether establishing the elements of the Gingles test or the various factors of the "totality-of-circumstances" test, the testimony of social scientists will continue to be indispensable. One purpose of this book, therefore, is to explain the methods that have come to be accepted by most courts as the appropriate tool for determining major aspects of minority vote dilution, especially with respect to the determination of racial bloc voting. Our aim in this book goes beyond explicating the technical issues of social science testimony in voting rights litigation. We describe in considerable detail the evolution of voting rights case law, focusing on the confusion and conflict in the federal district and circuit courts in the years since the Supreme Court's 1986 decision in Thornburg v. Gingles.2 We also discuss the issues that are just beginning to confront the courts (and social scientists) as attention turns to alleged vote dilution in the single-member district context. And in our concluding chapter we consider the implications of developments in voting rights case law and the outcomes of voting rights cases for the future of representation in America. In Chapter 1 we provide an overview of the struggle for minority voting rights and the history of the Voting Rights Act of 1965 and its subsequent amendments and extensions through 1975. We also distinguish between the right to vote and the right to representation and sketch alternative mechanisms and measures of vote dilution. In Chapter 2 we carry forward the evolution of a vote dilution standard as it developed in the courts in the 1960s and 1970s - in Congress with the adoption of the 1982 amendments to the Voting Rights Act and again in the courts through the Gingles decision. We also discuss the ambiguity surrounding the totality-of-circumstances test in the wake of Gingles. In Chapter 3 we examine the operationalization of the Gingles three-pronged test that is at the heart of the current Section 2 case law. This requires a review of recent, sometimes contradictory decisions of the federal courts, as well as a discussion of some of the issues addressed in these cases.3 Chapter 4 is largely technical, and readers more interested in the law per se

Introduction

3

may wish to skip the most detailed parts. The entire chapter, however, is indispensable reading for social scientists who might consider serving as an expert witness in a voting rights case. The majority of the chapter is devoted to defining and measuring racially polarized voting, but we also discuss other elements of the totality-of-circumstances test. In Chapter 5 we look at how the concept of vote dilution might be defined and measured in single-member district plans as well as at other issues that are likely to dominate voting rights litigation in the 1990s. This covers such current topics as influence districts, runoffs, and population growth, as well as more "radical" alternatives to the single-member district system. In the concluding chapter we take a broader look at representation in the United States and suggest that we are dealing with the "politics of the second best." Nonetheless, in looking at the direction in which the Voting Rights Act is taking us, we conclude on an optimistic note about the future of minority representation and of American politics.

The right to vote and the right to representation

Our book is chiefly about the post-1965 era and about representation, as opposed to registration or turnout. However, the rationale for, as well as the nature of, recent and current efforts to protect minority voting rights cannot be understood without an awareness of the history of minority disfranchisement, especially black disfranchisement in the South. The Voting Rights Act of 1965 and the long line of litigation that forms its lineage can be understood only in the context of the failure of the previous hundred years to establish a secure basis for the right to vote. Thus we begin with a brief overview of that troubling history. We then describe the passage of the act itself and its initial extensions and expansion. Finally, we distinguish between voting and representation and raise a number of questions about the current and future operationalization of the concept of nondilution of minority votes. This distinction will serve as a backdrop for the remainder of the book. The two-hundred-year struggle for minority voting rights Before the Civil War, black men could vote in only six northern states; black women, of course, were denied the franchise in all states.1 After the war, the right to vote was extended to most adult males in the seceding states. Southern states were required by the Military Reconstruction Act of 1867 to adopt new constitutions granting universal male suffrage, regardless of race, as a condition for readmission to the Union. Congress was to enshrine the promise of the franchise for blacks in a constitutional amendment three years later. Following the Civil War, three constitutional amendments designed to eradicate the remaining vestiges of slavery in the South were passed, beginning with the Thirteenth Amendment (1865), which guaranteed freedom from slavery. The Fourteenth Amendment, considered by Congress in 1866 and adopted in 1868, granted citizenship to "all persons born or naturalized in the United States" along with its concomitant privileges and immunities, due process of law, and equal protection of the laws. This amendment dealt with the franchise only


5

indirectly, by providing in Section 2 that if a state barred any adult males from the vote, the state's representation in Congress "shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." This provision was adopted in order to induce states to repeal state laws excluding blacks from the right of suffrage, but it was in fact never utilized. Enfranchisement of black citizens was granted nationally with the ratification of the Fifteenth Amendment in 1870. This amendment provided that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Section 2 (like Section 2 of the Thirteenth Amendment and Section 5 of the Fourteenth Amendment) gave Congress the right to enforce the amendment through appropriate legislation. Shortly after the Fifteenth Amendment became effective on March 30, 1870, Congress exercised its authority to pass appropriate legislation by enacting two measures to protect black suffrage: the Enforcement Act in 1870 and the Force Act of 1871. The Enforcement Act of 1870 "provided for criminal sanctions against those who interfered with the constitutionally guaranteed right to vote," and the Force Act of 1871 "was to supplement the 1870 statute by supplying independent enforcement machinery . . . to be provided by the appointment of federal officials to supervise the election process in each election district" (Schwartz, 1970, p. 547). These two acts prohibited state officials from applying election laws in a racially discriminatory manner, outlawed physical threats and economic intimidation against voters, and made it illegal for individuals to conspire to interfere with a person's right to cast a ballot. To implement the Force Act, Congress authorized the appointment of supervisors to observe registration and election proceedings in large towns and cities (Kousser, 1984, p. 28). Before ratification of the Fifteenth Amendment, the military leaders assigned to replace the Confederate governments had already launched a campaign to register blacks to vote.2 By 1868, more than 700,000 blacks had been registered to vote under the supervision of federal troops (Franklin, 1961, p. 80). Blacks not only participated in politics by voting; they also held a variety of public offices in each of the southern states and even occupied a majority of the seats in the lower house in South Carolina. Although no black ever served as governor of a southern state, three states elected black lieutenant governors (South Carolina, Mississippi, and Louisiana), and blacks were chosen to fill a number of other statewide offices as well. Furthermore, between 1869 and 1901, the South sent twenty blacks to the U.S. House of Representatives and two blacks to the U.S. Senate (Franklin, 1967, pp. 319-320). In the North, whites came to accept black voting, but in the South, from the outset, whites resisted enforcement of the Fifteenth Amendment. Violence, in-

6


timidation, and fraud were the primary means used initially to discourage blacks from voting. According to information gathered by a House subcommittee in 1868: Over 2,000 persons were killed, wounded and otherwise injured in [Louisiana] within a few weeks prior to the presidential election; half the State was overrun by violence; midnight raids, secret murders, and open riot kept the people in constant terror until the Republicans surrendered all claims, and then the election was carried by the democracy. (U.S. Commission on Civil Rights, 1968, pp. 3-4) Blacks who managed to overcome these obstacles and cast a ballot were faced with elections fraught with corruption: Candidates' names were scratched off the ballots; votes were stolen from the boxes; polls were not open at all in heavily Republican areas; and police were stationed at polling places to allow only those favoring the Democratic party to enter (U.S. Commission on Civil Rights, 1968, p. 4). By using this array of techniques, whites in the South were able to oust radical Republican administrations and replace them-with white supremacist Democratic regimes, thus "redeeming" the South. The formal end of Reconstruction, however, was marked by the Compromise of 1877, in which Southern Democrats helped resolve the corruption-plagued presidential election of 1876 by throwing their votes to the Republican candidate Rutherford B. Hayes in return for the removal of the remaining military troops from southern soil and an understanding that white southerners were to manage their affairs without as much supervision as in the past. Left to its own devices, the South showed no inclination to protect the right of blacks to vote and, in fact, began to institute a series of measures designed to prevent blacks from casting ballots. The prospect of active federal enforcement of the Fifteenth Amendment also ended at approximately this time with two Supreme Court decisions that greatly weakened the effectiveness of the Enforcement and Force acts. The Court, in two separate cases decided on the same day (March 27, 1876) - United States v. Reese and United States v. Cruikshank - threw out indictments based on various provisions of the Enforcement Act of 1870 and the Force Act of 1871, thereby nullifying critical sections of the two acts. The Court declared that in order to secure convictions under these acts, it must be proved that the accused operated under the authority of state law and intended to discriminate for reasons of race. In Reese, the Court overturned the indictments of two election officials who had refused to receive the vote of a black citizen in Kentucky and were charged with violating two sections of the Enforcement Act. The Court held that the provisions on which the indictments were based (Sections 3 and 4 of the act) were too broad, as they were not confined in their operation to


1

unlawful discrimination on the basis of race alone and therefore exceeded congressional power under the Fifteenth Amendment. In Cruikshank, eight men who had participated in a mob that had massacred sixty blacks in 1873 in Coifax, Louisiana, appealed convictions under another section of the Enforcement Act (Section 6), which held that conspiring to hinder citizens in the enjoyment of rights or privileges guaranteed by the federal Constitution was illegal. The Supreme Court held that each of the rights at which the conspiracy was aimed was in fact not a federal right but was, rather, a right derived from the states and therefore not subject to federal protection. The Court held that the only voting rights that Congress had the authority to protect were the right to vote in a federal election and the right to vote free of racial discrimination. Because denial of neither of these rights was alleged, the indictment was held not to state an offense. "We may suspect that race was the cause of the hostility; but it is not so averred," according to Chief Justice Morrison R. Waite (p. 556). Cruikshank was released from prison, and although the Court did not actually strike down Section 6 of the Enforcement Act, it was construed so narrowly that it became virtually useless. Thus, on the first occasion on which the Supreme Court was asked to consider the acts designed to implement the Fourteenth and Fifteenth amendments, the Court succeeded in crippling the efforts of Congress to protect the right to vote against both official and private interference (Derfner, 1973, p. 529). Reese and Cruikshank paralleled a shift in national attitudes to support noninterference in the South and marked a general retreat from federal enforcement of the Fifteenth Amendment:3 The phase that began in 1877 was inaugurated by the withdrawal of federal troops from the South, the abandonment of the Negro as a ward of the nation, the giving up of the attempt to guarantee the freedman his civil and political equality, and the acquiescence of the rest of the country in the South's demand that the whole problem be left to the disposition of the dominant Southern white people. (Woodward, 1966, p. 6) At the same time, events in the South dramatically accelerated this regressive trend toward black disfranchisement. The Compromise of 1877 not only symbolized the end of Reconstruction; it also signaled the beginning of the movement to exclude blacks totally from the southern electorate. The newly redeemed governments of the South managed to reduce by half the number of black voters over the next fifteen years (Lawson, 1976, p. 6). State statutes passed in an effort to discourage black political participation included such legally sanctioned devices as long residency requirements and very short registration periods. Perhaps the most inventive technique was one adopted by South Carolina in 1882, the "Eight Box Law." This statute established eight categories of elections with separate ballot boxes for each category. Ballots were not to be counted if placed in the incorrect box, making it impos-

8


sible for illiterate blacks to cast ballots (election officials were instructed to aid white voters but not black voters in placing their ballots in the correct boxes). A less well known and more subtle means of minimizing black political participation without actually denying the franchise to blacks was to employ one or a number of "dilutive" techniques; the method(s) chosen depended on the proportion of blacks in the population and their geographic concentration. Such techniques included racial gerrymandering, at-large election systems, annexations or deannexations, or abolishing local elections for certain offices altogether and making such positions appointive. Each of these measures had as its intended purpose minimization of the number of black officeholders or white officeholders supported by blacks (see Kousser, 1984, pp. 31, 36). In addition to all of these measures, local white supremacists used intimidation and violence against blacks wishing to vote and outright fraud at the polls when blacks did manage to cast a ballot. Despite these efforts, some blacks continued to exercise the franchise and to hold public office, primarily through the operation of the ''fusion principle." Under this practice some whites (usually conservatives) would appoint blacks to a small share of minor public offices in return for black support at the polls. However, even this limited amount of black participation and influence was soon to be eliminated. Black disfranchisement solidified in southern state conventions Although most southern states had enacted statutes designed to reduce the number of blacks eligible to vote, it was not until the 1890s that states began to convene constitutional conventions to eliminate what was left of the black vote. Between 1890 and 1910, most southern states rewrote their constitutions in ways that were intended mainly to exclude blacks from the electorate without obviously violating the Fifteenth Amendment.4 Mississippi initiated the movement by convening a state constitutional convention in 1890. Of the franchise qualifications adopted to ensure that blacks would no longer exercise any political power, the "crowning achievement" (Key, 1949, p. 537) of the Mississippi Constitutional Convention was the "understanding" clause, which required a potential elector to read any section of the state constitution or provide a "reasonable" interpretation of any section read to him. Recognizing that a literacy test fairly administered would undoubtedly prevent large numbers of whites as well as blacks from voting, the "reasonable" interpretation clause gave white registrars enough discretion in evaluating applicants' performance on the test to pass most whites but reject most blacks. The Mississippi convention marked the beginning of the movement to dis-


9

franchise blacks in the South by means of a state constitutional convention. South Carolina followed suit with a convention in 1895, Louisiana in 1898, North Carolina in 1900, Alabama in 1901, Virginia in 1902, and Georgia in 1908. These constitutions outlined new qualifications for voting that included not only the "understanding" clause passed by Mississippi and other variants on the literacy test but also such measures as the "good character" test and the payment of a poll tax.5 Throughout the South, literacy tests were instituted; residency requirements were lengthened; property qualifications for registration were established; and the list of disfranchising crimes was expanded to include offenses believed to be committed more frequently by blacks.6 Registration and election officials were given broad discretion to determine whether or not a potential voter met the conditions for voting. The appointment of these officials was placed in the hands of state officials rather than local officials in order to ensure white control of the election process even in predominantly black areas. The Louisiana constitution adopted in 1898 contributed the "grandfather clause" to the list of disfranchising devices. The "grandfather clause" was not actually a disenfranchising technique but, rather, a method of exempting illiterate whites from having to pass the state-imposed literacy test. The Louisiana constitution provided that no male - or son or grandson of such male - who was entitled to vote on January 1, 1867, was to be denied the right to vote. "But if the Negroes did learn to read, or acquire sufficient property, and remember to pay the poll tax and to keep the receipt on file, they could even then be tripped by the final hurdle devised for them - the white primary" (Woodward, 1966, p. 84). Democratic party leaders across the South declared that only whites were eligible for membership or permitted a voice in the nomination of party candidates. Because the Democratic party was viewed as a private organization, and therefore perceived to be outside the purview of the federal constitution, it was believed that the party could legitimately discriminate if it so chose. As victory in the Democratic primary was tantamount to victory in the general election in the South, being denied access to the Democratic nominating process was the equivalent of disfranchisement. Every state in the South adopted the policy of white primaries, with the exception of Tennessee and selected counties in North Carolina (Lewinson, 1932, p. 153). The disfranchisement of blacks in the South occurred with the acquiescence, if not the explicit approval, of the federal government. In 1894, for example, Congress - by then under Democratic control - repealed significant portions of the Enforcement Act of 1870 and the Force Act of 1871. Congressional withdrawal from voting rights enforcement was followed four years later by a favorable review from the Supreme Court for the Mississippi state constitution suffrage provisions. In Williams v. Mississippi (1898), the Court was asked to consider the con-

10


stitutionality of some of the suffrage provisions of the Mississippi Constitution of 1890. Williams, who had been indicted for murder by an all-white grand jury, challenged his conviction on the grounds that the jury panel had been drawn from the voting rolls, from which blacks had been effectively excluded by the 1890 Mississippi Constitution. Rejecting the assertion that the various requirements (the "understanding" test, poll tax, lengthy residency requirements, etc.) discriminated against black citizens in violation of the due process clause of the Fourteenth Amendment, the Court concluded that "they do not on their face discriminate between the races, and it has not been shown that their actual administration was evil, only that evil was possible under them" (p. 225). Six years later, the next challenge to the suffrage provisions of a southern disenfranchising constitution met with the same response. In Giles v. Harris (1903) and Giles v. Teasley (1904), a black citizen attacked several suffrage provisions (such as the "fighting grandfather" clause and the "good character" clause) of the 1901 Alabama Constitution, contending that they violated the Fifteenth Amendment. The Supreme Court disposed of both of these cases on procedural grounds. These two decisions (as well as the earlier decision in 1898) no doubt provided those few southern states that had not yet acted to disfranchise blacks by means of the state constitution the incentive to imitate their fellow southern states. By the turn of the century, virtually all blacks had been disfranchised in the South.7 Abandoned by the federal government, thwarted by the Supreme Court, and faced with a multitude of state laws designed expressly for the purpose of disenfranchising them, the majority of blacks in the South would not be permitted to exercise the franchise until 1965. A gradual rekindling of the Fifteenth Amendment in the courts For an extended period of time, the Supreme Court did very little to alter the level of black disfranchisement. In fact, the white primary was declared legal as late as 1935 in Grovey v. Townsend; the poll tax was upheld in 1937 (Breedlove v. Suttles); and the literacy test was declared constitutional as recently as 1959 (Lassiter v. Northampton County Board of Elections). But the decades between 1900 and 1960 were not completely void of progress on the suffrage front. For instance, the ratification of the Nineteenth Amendment in 1920 enfranchised women, though black women in the South remained unable, for the most part, to exercise that right. The Supreme Court also began to carve out some exceptions to the doctrine of black disfranchisement that it had sustained in earlier decisions. In 1915 in Guinn v. United States, the Supreme Court declared Oklahoma's


11

"grandfather clause" unconstitutional. This 1910 amendment to the state constitution exempted persons who had voted before 1866 and their lineal descendants from taking the literacy test mandated by the state. The Court held that this statute constituted a transparent effort on the part of the state to limit the administration of the literacy test to blacks only, which was a violation of the Fifteenth Amendment. Although the provision did not overtly single out blacks for unequal treatment, the Court wrote that "the standard itself inherently brings that result into existence since it is based purely upon a period of time before the enactment of the Fifteenth Amendment" (pp. 364-365). The decision, though perhaps significant in a symbolic sense because it represented the first time the Court expressed a willingness to look beyond "nondiscriminatory form to discriminatory substance" (Elliott, 1974, p. 71), had little effect. The Oklahoma state legislature responded to Guinn by passing a decree in 1916 that established a once-in-a-lifetime period of twelve days for those who were previously not on the registration rolls to register to vote. This scheme was not struck down by the Court until 1939, when a black who had failed to register within the stipulated twelve-day period challenged the statute and won in Lane v. Wilson. In delivering the opinion of the Court, JusLce Felix Frankfurter wrote that the Fifteenth Amendment "nullifies sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race" (p. 275). The demise of the white primary constituted the Supreme Court's most important contribution to black enfranchisement during the first part of the twentieth century. But the collapse of the white primary came only after the Court considered a series of four Texas cases over a seventeen-year period (19271944).8 It was not until the fourth decision, Smith v. Allwright (1944), that the Court recognized the Democratic primary as an "integral part of the election process" and determined that any attempt to limit the primary to white voters was unconstitutional. Smith, the black plaintiff in Smith, sued Texas election officials for refusing to permit him to cast a ballot in the primary election of 1940 for Democratic congressional candidates. Smith lost his case in both the district court and the Fifth Circuit Court of Appeals, but the Supreme Court reversed and held that the exclusion of blacks from voting in a Democratic primary was a state action in violation of the Fifteenth Amendment.9 The Smith decision produced a variety of responses in the South: Some states, after expressing dissent "chiefly for the record," made no changes to offset the decision (Key, 1949, p. 626); other states, most notably South Carolina, sought to bypass the decision by divorcing the process of selecting party candidates

12


from governmental action, by erasing all the primary election statutes from the books.10 Attempts at circumventing the decision were voided by the courts, however, and the white primary eventually vanished. The demise of the white primary was not the end of black disfranchisement in the South. Although there was a rise in black political participation in many areas,11 prompting some scholars to refer to this period as "the initial political mobilization of Negroes in the twentieth-century South" (Garrow, 1978, p. 6), states that wished to continue excluding blacks from the electoral system simply fell back on literacy tests and other discretionary registration laws. Alabama, Louisiana, and Mississippi were particularly effective in utilizing alternative methods to restrict black registration. Black registration rates three years after the Smith decision were still below 3 percent in each of these three states, compared with an average of over 17 percent in the other eight states of the Old Confederacy (Garrow, 1978, p. 7). The civil rights acts of 1957, 1960, and 1964 Reforms in black enfranchisement were not confined solely to the results of court decisions during the first six decades of the twentieth century. Events at the national level served to increase the demand for reforms in the southern electoral system, and these events eventually led Congress to reassert its interest in protecting black voting rights. Two important early events came during the New Deal and World War II. Although President Franklin D. Roosevelt did not assign civil rights a high priority on his legislative agenda, he did appoint several blacks to high positions within the federal government and also granted blacks direct economic aid for the first time (Lawson, 1976, pp. 20-21). During World War II, black veterans, permitted to cast a vote during the war, returned to the South and found, in many instances, their right of franchise revoked. Pressure against existing conditions increased as a result. As it became more and more evident that blacks constituted an important voting bloc in the North (and because blacks had showed signs of deserting the party of Lincoln ever since Roosevelt's bid for reelection in 1936), the Eisenhower administration began to consider ways of recapturing the vote of northern blacks. The strategy used to solicit black support was the introduction of civil rights legislation in Congress. Hence, the Justice Department drafted what was eventually to become the Civil Rights Act of 1957. Indeed, a new era in congressional involvement in protecting the franchise began in 1957 when Congress defeated a filibuster and passed the first civil rights law since 1875. The 1957 act, as well as the 1960 Civil Rights Act that followed, "employed a litigative strategy of enforcement which placed much faith in the federal courts' ability to rectify racial discrimination in the electoral process" (Garrow,


13

1978, p. 5). Reliance on litigation proved to be a mistake, but given a reluctant Republican president (despite Eisenhower's earlier endorsement of the idea) and a Congress in which southern Democrats hostile to federal interference held a great deal of power, a bill that authorized nothing stronger than a litigative approach was the only one that would have made it into law. What became available for blacks in 1957 was a fairly weak civil rights statute. The act authorized the appointment of an assistant attorney general for civil rights, upgraded the Civil Rights Section to a division of the Justice Department, and created a Commission on Civil Rights to monitor voting activities in the nation, especially in the South. The third section of the act granted the Justice Department the right to intervene in civil suits brought by private individuals alleging a denial of their civil rights. And the fourth section - probably the most important provision of the 1957 act - empowered the attorney general to file suits in federal district court seeking injunctive relief against violations of the Fifteenth Amendment. Another provision in the act gave jurisdiction of civil rights suits to special three-judge federal district courts convened to hear cases taken out of state courts by the Department of Justice without the complainant's having to exhaust all state remedies. In the three years following the 1957 legislation, the attorney general filed only four suits. The constitutionality of the act was upheld in the first case brought under the act, United States v. Raines (I960),12 but this case, as well as the other three suits initiated under the act, exposed several weaknesses in the act. The most obvious problems encountered by the Justice Department were "the difficulties in obtaining access to the necessary registration records, and most important, the almost limitless opportunities for delay in the judicial process" (Garrow, 1978, p. 14). Moreover, not a single black who was not already registered to vote qualified to vote in the three-year period following the passage of the act (Hawk and Kirby, 1965, p. 1060). As a consequence, new legislation - the 1960 Civil Rights Act - was passed in an effort to close some of the loopholes in the 1957 legislation. The most significant feature of the 1960 act was that it authorized a federal district court judge, after finding a "pattern or practice" of voting discrimination, to appoint federal referees to replace state registration officials. The referee was to register any applicants who demonstrated that they were qualified to vote under prevailing state law or standards. This provision had the effect of "freezing" state voter requirements at the level at which they had been applied to whites (regardless of any state laws formally prescribing higher standards) (Derfner, 1973, p. 546). District courts were directed to use the registrars' actual standards for registering white voters if those standards were less stringent than what was specified in the state statutes (and those applied to potential black voters). This section of the act was not as innovative or as effective as might

14


be supposed; first, the doctrine of "freezing" had already been established in earlier southern voting rights litigation, and second, the referee provision "went virtually unused by the courts" (Garrow, 1978, p. 29). Because the Justice Department had experienced difficulty procuring registration records from state officials (some registrars even destroyed the records rather than allow them to be used in litigation by the Justice Department), a provision was added to the 1960 act that declared that local voting records had to be preserved for a period of twenty-two months following an election and had to be made available to the attorney general upon request. The 1960 act also provided that a registrar's discriminatory acts be deemed those of the state, which might be joined as a party defendant in any suit. This provision was inserted to resolve the problem encountered in United States v. Alabama (1960), in which the registrars resigned and left no one against whom an injunction might be issued. Despite the inclusion of a number of measures designed to close the loopholes in the 1957 act, the 1960 Civil Rights Act proved no more successful than the earlier act. After four years and dozens of frustrating cases under the 1960 act, the only possible conclusion was that these acts failed in their purpose. Litigation under the acts was protracted and limited to only a small percentage of the counties in which black registration was being limited. Many legal observers attributed the numerous delays and obstructions to the personal sympathies of some of the federal district court judges themselves. The five judges most notorious for their recalcitrance (William Harold Cox, Daniel H. Thomas, Claude F. Clayton, E. Gordon West, and Benjamin Dawson) sat in districts in Mississippi, Alabama, and Louisiana, the three states in which the great majority of the voting rights suits were filed and those that had the poorest records in black enfranchisement. Eventually, most of the cases were resolved in favor of the Justice Department, but not until reaching a higher court. When decisions were handed down outlawing certain disenfranchising practices, however, states merely switched to other discriminatory devices, or alternatively, certain local officials simply defied or evaded court orders (South Carolina v. Katzenbach, 1966, p. 314). Meanwhile, dramatic events were drawing public attention to the plight of blacks in the South. The outbreak of violence - for example, the bombings of black churches in Birmingham, Alabama, during the freedom summer of 1963 and the killing of three civil rights workers in Philadelphia, Mississippi, in the summer of 1964 - galvanized civil rights advocates and created conditions sympathetic to action on behalf of blacks in the South. Even conservative Republicans were prompted to join the coalition that resulted in the passage of the 1964 Civil Rights Act. Although the major focus of the Civil Rights Act of 1964 was in the area of


15

public accommodations, federal funding of schools, and equal employment opportunities, the legislation did devote some attention to the issue of voting discrimination problems in the South. For example, one section of the act provided for expedition of the three-judge federal district courts designated to hear the vote discrimination cases. In addition, several sections were directed at the most flagrant methods of abusing literacy tests; these sections required that all literacy tests be given entirely in writing, barred the use of immaterial errors (e.g., misspellings) to deny registration, and established a sixth-grade education as presumptive proof of literacy in any voting discrimination suit brought by the Justice Department. However, like its predecessors, this act relied on a litigative strategy, and thus no real improvement was likely to result from its enactment. In any case, these voting provisions were outdated less than a year after being signed into law by passage of the Voting Rights Act of 1965. The three civil rights acts passed in 1957, 1960, and 1964 were remedial measures that did little to change black disfranchisement in the South. The record of eight years of litigation on behalf of minority voting rights reveals a great deal of effort generating few concrete results. According to Derfner, "the United States filed 71 suits . . . including actions against discriminatory registration practices, suits directed at private or official intimidation, and suits simply to obtain registrars' records . . . [as well as] omnibus actions against Alabama, Louisiana and Mississippi" (1973, p. 548). The outcome of this litigative effort was an increase of just 36,000 blacks on the registration rolls in the counties where suits had been brought (Hawk and Kirby, 1965, p. 1212). According to Chief Justice Earl Warren, writing in South Carolina v. Katzenbach (1966), registration of voting-age blacks "in Alabama rose only from 14.2% to 19.4% between 1958 and 1964; in Louisiana it barely inched ahead from 31.7% to 31.8% between 1956 and 1965; and in Mississippi it increased only from 4.4% to 6.4% between 1954 and 1964" (p. 313). Eventually the barriers to black registration would be broken down, but not by litigation under these three acts. The civil rights acts of 1957, 1960, and 1964 were nevertheless important because the progressively more stringent remedies adopted in the acts were subsequently upheld by the courts. This reassured Congress that the Supreme Court would no longer impede Congress in its exercise of power to enforce the Fourteenth and Fifteenth amendments through '' appropriate legislation.'' The 1965 Voting Rights Act The series of civil rights acts passed by Congress in the late 1950s and early 1960s did little to open the political system to African-Americans in the South. It was not until Congress adopted an entirely different tack that large numbers

16


of blacks began to gain access to the political process. The Voting Rights Act of 1965 was a revolutionary measure that went far beyond the previous civil rights acts, and it went a long way toward enforcing the promises of the Fourteenth and Fifteenth amendments. We shall not recount the civil strife or the legislative battles that led to the passage of the act. The story of the civil rights movement has been told in numerous books and films (e.g., Branch, 1988; Brooks, 1974; Kluger, 1975; Morris, 1984; Williams, 1987); the legislative history has also been discussed in some detail (Garrow, 1968; Lawson, 1976, 1985; Thernstrom, 1987). It is important, however, to give a general overview of the act's original provisions, the 1970 and 1975 extensions, and the expansion of its coverage to language minorities, as well as to note its immediate effects on minority registration and turnout. The content of the 1965 act The Voting Rights Act passed in 1965 contained a number of permanent provisions that affected the entire nation. These were found in Sections 2 and 3. Section 2 was essentially a restatement of the Fifteenth Amendment. It prohibited voting qualifications or prerequisites to voting or any standard, practice, or procedure by any state or political subdivision that would "deny or abridge the right of any citizen of the United States to vote on account of race or color." Section 3 strengthened the procedures by which the attorney general filed suit to enforce the voting guarantees of the Fifteenth Amendment. Under this section, a court could authorize the appointment of federal examiners and observers, suspend the use of tests and devices, or require preclearance in any jurisdiction in the United States - regardless of whether or not the jurisdiction was covered by the "triggering" formula of special provisions - if the court deemed it appropriate to enforce the Fifteenth Amendment. (The use of federal examiners and observers, the suspension of literacy tests, and the preclearance provision will be described in greater detail later.) Other general provisions provided for civil and criminal penalties for violations of the act. The heart of the act was the special provisions listed in Sections 4 through 9. These special provisions authorized the Justice Department to take direct administrative action on behalf of disfranchised blacks, bypassing the southern judiciary. Unlike the general provisions, the special provisions were to be temporary and applied only to jurisdictions that met the criteria specified in Section 4(b). According to Section 4(b), a jurisdiction was subject to the act's special provisions if it met the following test: (1) The jurisdiction maintained a test or device as a precondition for registering or voting as of November 1, 1964, and (2) less than 50 percent of the voting-age population was registered to vote on


17

November 1, 1964, or less than 50 percent of the voting-age population voted in the November 1964 presidential election. If a state as a whole did not meet these criteria, the standard was applied to individual counties within the state, so that in some instances entire states were "covered" and in other cases only certain counties within a state were "covered." This coverage formula was devised by Congress to target southern states with a history of racial discrimination in the election process. Although the formula did not capture every southern state that had disfranchised blacks, it did reach the worst offenders. The areas initially captured by this "triggering mechanism" were Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and parts of North Carolina.13 Under Section 4(a) of the act, a state or political subdivision could escape from coverage by filing a declaratory judgment action in the U.S. District Court for the District of Columbia. If that court found that no test or device had been used to deny or abridge the right to vote on account of race during the five years preceding the filing of the action, the state or subdivision would be removed from the operation of the act's special provisions. Section 4(a) of the act also suspended for five years the use of all "tests and devices" used as a prerequisite for voting in all "covered" jurisdictions.14 It had long been held that literacy tests were the primary deterrent to black efforts to vote in many areas of the Deep South, and this measure was designed to eradicate this obstacle, at least temporarily. The Voting Rights Act also attempted to prevent jurisdictions from passing new legislation that would deny or abridge the right of African-Americans to vote. Section 5 of the 1965 legislation required that covered states submit changes in "any voting qualification or prerequisite to voting, or standard, practice or procedure with respect to voting" different from that in effect on November 1, 1964, to either the attorney general or the U.S. District Court for the District of Columbia for "preclearance" before any such change could be enforced. This section froze all voting regulations in the covered jurisdictions as of November 1964, unless the attorney general or the District Court of the District of Columbia determined that the proposed voting change did not have the purpose or the effect of denying or abridging the right to vote on account of race or color. If the attorney general denied preclearance to a submission, the change could not be implemented. However, even if the attorney general did object to a proposed change, the jurisdiction could still ask for a declaratory judgment, from a three-judge district court in the District of Columbia, that the change was not discriminatory. According to the act, decisions as to whether a jurisdiction could change a voting procedure rested only with the Justice Department or the District Court for the District of Columbia. A Washington environment was designated to

18


resolve these issues, because past experience indicated that local officials and district courts in the South frequently hindered efforts to ensure blacks' voting rights. Because the broad discretion vested in local registrars was often abused (exactly as the original framers of the state laws had intended), the act provided, in Sections 6 through 8, for the assignment of federal registration examiners and election observers. The Civil Service Commission was directed to appoint federal examiners for any covered jurisdiction when the attorney general certified either (1) that he had received twenty meritorious complaints from that jurisdiction alleging denial of the right to vote on racial grounds or (2) that based on his own judgment, he determined that the appointment of examiners was necessary to enforce the guarantees of the Fifteenth Amendment. The primary duty of federal examiners was to determine whether an applicant was qualified to vote under state laws that were "not inconsistent with the Constitution and the laws of the United States." All who qualified on these grounds were to be placed by the federal examiner on a list of eligible voters. This list was then to be transferred to the appropriate state or local registrar for placement on the jurisdiction's official voting list. Section 8 provided for the assignment of federal election observers. Federal observers were to be appointed by the Civil Service Commission, at the request of the attorney general, to serve in jurisdictions that had been designated for the appointment of federal examiners. The duty of the observers was to act as poll watchers to observe whether all eligible persons were allowed to vote and whether all ballots were accurately counted. Another provision of the act (Section 10) expressed the opinion of Congress that "the constitutional right of citizens to vote is denied or abridged in some areas by the requirement of the payment of a poll tax as a precondition for voting." This section directed the attorney general to institute suits against states that retained the poll tax in order to determine whether such a tax violated the constitution.15 The final draft of this section represented a compromise between the advocates of a total ban on the poll tax and those who feared such a ban with regard to state elections was unconstitutional and might therefore endanger the constitutional position of the entire act (Hawk and Kirby, 1965, p. 1203). President Lyndon B. Johnson, shortly after his landslide election in November 1964, instructed his attorney general, Nicholas Katzenbach, to "write the goddamnedest toughest voting rights act that you can devise" (Raines, 1977, p. 337). Thus, it is not surprising that the 1965 act was immediately challenged in court. The case of South Carolina v. Katzenbach was heard by the Supreme Court under its original jurisdiction and was decided on March 7, 1966, just seven months after its enactment. Writing for eight members of the Court, Chief Justice Warren recognized that the act was "an uncommon exercise of congres-


19

sional power" but that "exceptional conditions can justify legislative measures not otherwise appropriate" (p. 334). All facets of the act presented to the justices, including the power to suspend literacy tests and other devices of Section 4 and the preclearance provisions of Section 5, were determined to be constitutional.

Extensions of the act and expansion of its coverage The special provisions of the Voting Rights Act of 1965 were initially conceived of as temporary measures to be terminated once blacks had been successfully integrated into the political system in the South. Originally enacted for a fiveyear period, the scheduled expiration date was August 6, 1970. At that time a jurisdiction could "bail out" from coverage by convincing the District Court for the District of Columbia that it had not used a discriminatory "test or device" for the preceding five years. Because the use of such tests had been suspended for five years, these jurisdictions would presumably have no difficulty meeting this requirement unless the act were extended for an additional period of time. Despite efforts by the Nixon administration to pass a severely weakened version, the legislation that was adopted eventually proved to be as stringent as the original act. Congress suspended literacy tests in all states until August 1975. The special provisions of the act were extended for another five years, and the bailout criterion was amended so that a jurisdiction had to have gone at least ten years - rather than five - without the use of a discriminatory test or device. The coverage also was expanded to include states or political subdivisions that, as of November 7, 1968, were using one of the specified tests or devices and in which less than half of the voting-age population was either registered to vote or had actually voted in the 1968 presidential election. No additional southern jurisdictions were captured by this revision of the coverage formula, but three boroughs of New York City - Manhattan, Brooklyn, and the Bronx - were brought under the special provisions.16 The 1970 legislation also lowered the voting-age requirement to eighteen in all elections, and it standardized residency requirements by placing a ban on state residency requirements for federal elections of more than thirty days. The first case in which the Supreme Court was asked to consider the 1970 amendments to the Voting Rights Act was Oregon v. Mitchell (1970). In a decision that had no clear-cut majority, the Court ruled that Congress did not have the power to lower the voting age for state elections.17 However, all nine justices, in four separate opinions, upheld Congress's power to impose a national ban on literacy tests. Even though literacy tests were not always discriminatory,

20


each of the justices agreed that Congress should be given a great deal of leeway in creating a remedy, given the prevalence of the problem. Because the extension of the Voting Rights Act was for only five years, its special provisions were due to expire again in August 1975. When Congress began to consider possible renewal of the act early in 1975, there was a broad consensus for extending the act; even the Republican administration of President Gerald R. Ford favored a straightforward extension. The general feeling at the time was that despite a great deal of progress, black electoral participation still relied heavily on federal surveillance and any curtailment of federal involvement would jeopardize these gains (Lawson, 1985, pp. 225-227). Black civil rights groups were not the only groups lobbying for an extension of the act; other minority groups, particularly Hispanics, argued that they too should have federal protection of their voting rights. Although Congress had previously given little thought to voting discrimination against minority groups other than African-Americans, the development of the Chicano political movement and continuing voting rights litigation in Texas (which was not a covered jurisdiction), convinced many that protection should be extended to other minority groups as well (Hunter, 1976, pp. 254-255). Some black leaders, such as Clarence Mitchell of the NAACP (National Association for the Advancement of Colored People), were initially hostile to the idea of expanding coverage to other minority groups, arguing that this would dilute the bill or that the inclusion of these groups might threaten the constitutionality of the measure as a whole (Lawson, 1985, p. 229). Eventually, however, such a provision was included when President Ford signed the bill into law on the day that the 1970 legislation was due to lapse (August 6, 1975). The most important of the 1975 revisions to the Voting Rights Act was the expansion of its protection to language minorities. The coverage formula of Section 4 was amended to include those states and counties with a substantial language-minority population and English-only election materials. More specifically, Congress added to the list of tests and devices the conduct of registration and elections in only the English language in those states or local subdivisions where more than 5 percent of the voting-age population belonged to a single language minority of the following specified groups: Alaskan natives, Native Americans, Asian-Americans, or people of Spanish heritage.18 Furthermore, the act required the use of bilingual election materials and assistance if 5 percent of the area's voting-age citizens were of a single language minority and the illiteracy rate in English of that language minority was greater than the national illiteracy rate. (An exception would be made if the language historically had been oral or unwritten; if this were the case, then the jurisdiction would be required only to furnish oral instructions, assistance, and voting information.) The 1975 bill also extended the act's special provisions, this time for an


21

additional seven years. The coverage formula was revised to include jurisdictions that maintained any test or device and had less than half of its voting-age population either registered on November 1, 1972, or casting votes in the 1972 presidential election. Literacy tests, which had been temporarily suspended in 1970, were eliminated permanently under the 1975 legislation. Other amendments to the act codified the effects of the Twenty-fourth and Twenty-sixth amendments and the Supreme Court's decision in Harper v. Virginia Board of Elections (1966).19 By expanding the protection of the act to encompass not only racial minorities but a number of language-minority groups as well, the 1975 legislation extended the Voting Rights Act beyond the confines of the Fifteenth Amendment and beyond its original geographic target of the South. The provisions directed at language minorities did not rely on Congress's power to enforce the Fifteenth Amendment's prohibition against voting discrimination on the basis of race. Instead, Congress invoked its power to pass "appropriate legislation" to secure the Fourteenth Amendment's guarantee of equal protection. The geographic focus of the act was broadened by extending protection to language minorities; the coverage formula captured far more than the original six states in the South. Areas in the Southwest and West were now subject to the special provisions of the act; for example, the entire state of Arizona was covered, as well as jurisdictions in Colorado, South Dakota, and California. Additional areas in the South captured by this language-minority trigger were the entire state of Texas, five counties in Florida, and another county in North Carolina. In addition, all of Alaska was now covered. The impact of the Voting Rights Act on black participation The Voting Rights Act of 1965 and its extensions in 1970 and 1975 had a profound effect on black political participation in the South. The percentage of voting-age blacks registered in the South in March 1965 was only 35.5 percent, compared with 73.4 percent of voting-age whites (U.S. Commission on Civil Rights, 1968, pp. 222-223). The percentage of blacks registered was particularly low in those states targeted by the special provisions of the act (29.3 percent in March 1965), and it was in this area of the South that the act had the most direct impact. By the end of the year, federal examiners working in thirty-two counties in the covered states had listed the names of over 79,000 AfricanAmericans to be added to the registration lists (Lawson, 1985, p. 15). By the end of 1967, more than half a million new black voters had been listed in the seven covered states: Civil Service Commission records indicate that federal examiners assigned to fifty-eight counties in the covered southern states had registered 158,094 persons, and officials of the Justice Department estimated

22


that an additional 416,000 blacks had been registered by local registrars (U.S. Commission on Civil Rights, 1968, p. 12). Survey data indicate that the percentage of eligible blacks registered rose sharply in the seven covered states, from an average of 29 percent before passage of the act to over 52 percent two years later. By 1967 no covered state had less than 50 percent of the blacks of voting-age population registered (see Table 1). The increase in registration was particularly dramatic in Alabama and Mississippi. Since 1970, changes in black registration rates have been more erratic but have generally moved slightly upward. White registration rates, on the other hand, have climbed more slowly since 1967 or have even declined (see Table 2). The disparity between black and white registration rates has fallen dramatically as a result of these trends. In no covered state is there a difference of more than 7.5 percent, and in Louisiana the percentage of blacks registered is greater than the percentage of whites. This is not to suggest that there is no longer a discrepancy in black and white registration rates; in most southern states, blacks are still not registering at the same rates as whites are.20 The substantial increase in the numbers of blacks registered has been accompanied by a significant rise in the number of blacks actually voting. The growth in the turnout of blacks was most evident immediately following passage of the act. Table 3, for example, shows the turnout in the presidential elections of 1964 and 1968 in each of the covered states as well as the United States as a whole. As the table shows, although the national turnout dropped slightly in 1968, it increased in all seven covered states. The increase was particularly marked in Mississippi and Alabama - 19.3 and 16.8 percentage points, respectively. Moreover, since passage of the Voting Rights Act, the disparity between the turnout of blacks and whites has often been smaller in the South than in the entire United States (see Table 4, p. 26). The increases in black participation since 1960 are remarkable, perhaps even more so when one considers that as late as 1940, 95 percent of the adult blacks residing in the South were deterred from registering. Only an estimated 250,000 blacks were listed on the registration rolls in the eleven states of the Old Confederacy in 1940. The barriers to black participation at that time were numerous: the all-white Democratic primary, poll taxes, literacy tests, the biased administration of registration procedures, and white brutality and economic intimidation. Within a generation, these barriers were largely dismantled, and the number of black registrants rose thirteenfold. By far the biggest increases in black registration occurred in the late 1960s in the seven southern states covered by the Voting Rights Act. Although not all of this rise can be directly attributed to the passage of the act, it must certainly be in large measure responsible: The suspension of literacy tests and the use of federal examiners unquestionably played


23

Table 1. Registration by race, before and after 1965, in southern states covered by the Voting Rights Act (percent) Pre-act registration

Post-act registration

Black

White

Gap

Black

White

Gap

Alabama Georgia Louisiana Mississippi North Carolina South Carolina Virginia

19.3 27.4 31.6 6.7 46.8 37.3 38.3

69.2 62.6 80.5 69.9 96.8 75.7 61.1

49.9 35.2 48.9 63.2 50.0 38.4 22.8

51.6 52.6 58.9 59.8 51.3 51.2 55.6

89.6 80.3 93.1 91.5 83.0 81.7 63.4

38.0 27.7 34.2 31.7 31.7 30.5 7.8

Total

29.3

73.4

44.1

52.1

79.5

27.4

Note: Percentages are of the voting-age population. Pre-act registration is from March 1965; post-act registration is from September 1967. Both figures are estimates. Source: U.S. Commission on Civil Rights (1975, p. 43).

a major part in clearing the path to the polling places for nearly three-fifths of the voting-age blacks in this area of the South. In this respect, the Voting Rights Act - and the civil rights movement of which it was an outgrowth - was an unquestioned success. Vote dilution: the right to vote versus the right to representation At one level, then, the right of minorities to register and to vote has been largely achieved. To be sure, there is some continued discrimination involving even this basic right. It may be more subtle than previously, and the individuals who act on it may each operate on a fairly narrow scope, but it still exists.21 And one can argue that the government should take an active role in encouraging minority registration and voting rather than simply removing the barriers to participation (Jones, 1985). Nevertheless, vast strides have been taken; the enormous barriers to registration and voting that existed up to the 1960s have been removed, and by comparison with earlier periods, electoral participation by African-Americans is very high. Yet even before the Voting Rights Act was passed, it was apparent that voting was only the first hurdle to effective participation. The resurgence of black electoral participation brought to light a second-order obstacle that had remained obscure as long as blacks were completely excluded from the political process. Jurisdictions that wished to continue to discriminate against blacks simply moved from denying them access to the ballot to more sophisticated schemes


24

Table 2. Registration by race since 1970 in southern states covered by the Voting Rights Act (percent) 1970 Registration


1980 Registration

1988 Registration

Black

White

Gap

Black

White

Gap

Black

White

Gap

69.7 58.3 59.7 75.5 53.6 58.6 58.7

82.5 70.0 75.0 78.9 66.3 60.2 63.3

12.8 11.7 15.3 3.4 12.7 1.6 4.6

62.2 59.8 69.0 72.2 49.9 61.4 49.7

73.3 67.0 74.5 85.2 63.7 57.2 65.4

11.1 7.2 5.5 13.0 13.8 -4.2 5.7

68.4 56.8 77.1 74.2 58.2 56.7 63.8

75.0 63.9 75.1 80.5 65.6 61.8 68.5

6.6 7.1 -2.0 6.3 7.4 5.1 4.7

Note: Percentages are of the voting-age population. Source: 1970: Statistical Abstract of the United States (1974, Tables 701, 705); 1980: U.S. Department of Commerce, Bureau of the Census, (1982, Table 5); 1988: U.S. Department of Commerce, Bureau of the Census, (1989, Table 4).

developed to dilute the impact of their new voting strength. Devices such as atlarge elections, anti-single-shot laws, a decrease in the size of legislative bodies, racial gerrymandering, exclusive slating, and changing offices from elective to appointive ensured that although blacks might vote, they would often be unable to elect candidates of their choice.22 In many instances these devices were already in place, a legacy from the post-Civil War "Redeemer" days and later municipal "reforms," and had only to be dusted off or expanded in their coverage (Kousser, 1984, pp. 30-40). In other instances, changes were adopted for the express purpose of excluding blacks from office, often without the "preclearance" required by Section 5 of the Voting Rights Act.23 There was little doubt that these efforts had to be met head-on if the Voting Rights Act was to have any meaning at all. They were such bald-faced attempts to prevent blacks from achieving positions of power that even Abigail Thernstrom, a strong opponent of later interpretations of the Voting Rights Act, concedes that "the [Supreme] Court could hardly refuse to act" (1987, p. 24) and that the decision in Allen v. State Board of Elections (1969) to invalidate certain changes in electoral laws in Mississippi was both "correct and inevitable" (p. 30). With the Allen decision, it was clear that Section 5 of the Voting Rights Act, requiring preclearance by the attorney general or the D.C. district court of changes in any "standard, practice, or procedure," would be applied broadly to all manner of election laws rather than narrowly to laws affecting only registra-


25

Table 3. Turnout in the 1964 and 1968 presidential elections in southern states covered by the Voting Rights Act (percent) 1964

1968


35.9 43.3 47.3 33.9 52.3 39.4 41.1

52.7 43.4 54.8 53.2 54.3 46.7 50.1

United States

61.8

60.7

Note: Percentages are of the voting-age population. Source: Abstract of the United States, 1974, Table 704.

tion and voting. Straightforward, obvious efforts to nullify, in effect, the votes of large numbers of blacks - "a dilution of voting power" in Chief Justice Warren's words (Allen v. State Board of Education, 1969, p. 569) - were ruled out. It turns out, however, that the question of what constitutes vote dilution is not easily answered. Indeed, efforts to define, operationalize, and eradicate vote dilution have been the largest source of "districting" litigation since the 1960s, surpassing even that involving the equal population requirement. At its most general level, vote dilution refers to "the practice of reducing the potential effectiveness of a group's voting strength by limiting its ability to translate that strength into the control of (or at least influence with) elected public officials" (Engstrom, 1980, p. 197). In the context of minority voting rights, the operative definition comes from the revised language of Section 2 of the Voting Rights Act:24 that members of racial or language minorities "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.' ' 25 It is clear from these definitions that an essential ingredient for identifying vote dilution is the rate of election of candidates chosen by minority voters. Indeed, the Voting Rights Act makes that point (immediately after the preceding quotation): ' 'The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered." Beyond that general point, however, lies considerable ambiguity, and it is in response to this ambiguity that courts have been heavily involved

26


Table 4. Turnout of blacks and whites in presidential elections since 1964 for the United States and the South (percent) United States

1964 1968 1972 1976 1980 1984 1988

South

Black

White

Gap

Black

White

Gap

58.5 57.6 52.1 48.7 50.5 55.8 51.5

70.7 69.1 64.5 60.9 60.9 61.4 59.1

12.2 11.5 12.4 12.2 10.4 5.6 7.6

44.0 51.6 47.8 45.7 48.2 53.2 48.0

59.5 61.9 57.1 57.1 57.4 58.1 56.4

15.5 10.3 9.2 11.4 9.2 4.9 8.4

Note: Percentages are of the voting-age population. Source: U.S. Department of Commerce, Bureau of the Census (1989, Table A).

in determining when minorities have less opportunity to elect candidates of their choice. How many candidates must win for there to be nondilution? At one extreme is a notion embodied in Section 5 of the Voting Rights Act. A new or altered electoral law or device is dilutionary if it results in "retrogression" - that is, if it results in a decline in minority representation. Thus, under the retrogression criterion, minority representation is judged according to what currently exists rather than what might exist under alternative circumstances. The problem, of course, is that what currently exists may be patently unfair or clearly the product of past discrimination.26 Although nonretrogression is thus a useful tool to prevent backsliding, it is certainly not sufficient to eliminate vote dilution. At the other extreme is proportional representation, which would require that minorities be represented in the same proportion as they are in the overall population.27 Although such a requirement would surely eliminate dilution (at least for the groups that were proportionately represented), there are two major problems. First, a system of geographically based single-member districts, which is our predominant electoral arrangement, yields proportional representation only by chance; most often, the majority group (whether a party, racial, or other group) gains proportionately more representation than votes.28 Second, and more to the point, the Voting Rights Act specifically states that "nothing in this section [of the act] establishes a right to have members of a protected class elected in numbers equal to their proportion in the population."29 Obviously, there is a vast ground between these extremes, and there is nothing in political theory or the law that tells us unambiguously when a voting system


27

is nondilutionary. It has been left to the courts, with some help from the Senate Report accompanying the most recent (1982) revisions of the Voting Rights Act, to determine what evidence is sufficient to determine when minorities have been given less opportunity to elect candidates of their choice. Given the difficulties of this task, the courts have typically focused on mechanisms that tend to dilute the vote, requiring specific information about their applicability in the jurisdiction in question.30 But even focusing on specific electoral devices leaves important questions unanswered: (1) What does it mean to be a candidate "of choice"? Surely it cannot simply mean the candidate who obtains the highest number of minority votes; if only whites/Anglos were allowed to run, it could hardly be said (at least as a general rule) that the one with the most minority votes was the candidate of choice for minority voters. But does this mean that only minorities can represent minorities? (2) Does an election law have to have been adopted for discriminatory purposes? Certainly some election laws - including at-large elections in some cities - were adopted for "good government" reasons. Is it illegal vote dilution if under such circumstances these laws make it extemely difficult for minorities to be elected? (3) How does one design an electoral system, or a specific district, so that it does not dilute the minority vote (a question that usually arises at the remedy stage of a court case)? Just how certain does one have to be that a minority-preferred candidate will win the election? (4) And going back to the most fundamental point, how many minority victories are enough, or what is the standard against which to compare the number of minority victories? Should the standard be the number of minorities who are likely to win with "neutral" districting? The number likely to win with raceconscious districting? The number who could win if a "semiproportional" system were used? These are the sorts of questions with which Congress, the courts, minority groups, civil rights lawyers, and political scientists have been wrestling for the past two decades. Some answers have been found, particularly in regard to atlarge elections and multimember districts. We will describe these in some detail as we relate the evolution of a vote dilution standard in Congress and the courts. But numerous questions remain, especially pertaining to the single-member district context, which we see as the battleground for voting rights litigation in the 1990s. On these matters, we will offer perspectives that we hope will shape the ongoing arguments and, ultimately, lead to fair and equitable arrangements. We are aware, however, that we provide more in the way of problems than solutions. We do this in order to avoid the strident tone exhibited in many writings on the subject, even some that we have contributed. If political science has taught us anything, it is that there are no perfect solutions, even in the abstract. Knowing that, the task is to arrive at compromises that offer a reason-

28


able degree of equity to all involved. Even that may be an impossible task. But if we are to get that far, it will come only from a full understanding of the problems we face. Illuminating those problems will fill the remainder of this book. In this chapter we first provided an overview of the struggle for minority voting rights through the passage of the Voting Rights Act of 1965 and the 1970 and 1975 amendments. We then noted that securing the right to vote did not guarantee minorities the power to elect representatives of their choosing, which led us to the notion of vote dilution and a discussion of some of the problems in defining and measuring the concept, which serves as an introduction to the chapters to follow. In Chapter 2 we trace the evolution of a vote dilution standard as it developed in the courts during the 1970s and early 1980s, in Congress with the adoption of the 1982 amendments to the Voting Rights Act, and again in the courts through the Supreme Court's decision in Thornburg v. Gingles (1986).

The evolution of a vote dilution standard through 1986

Dilutive electoral devices such as at-large election systems and racial gerrymandering have been challenged on at least two separate grounds. First, plaintiffs have cited constitutional issues, alleging that such devices violate the Equal Protection Clause of the Fourteenth Amendment and the guarantee in the Fifteenth Amendment that the right to vote shall not be denied on racial grounds. Second, and more recently, plaintiffs have relied on the Voting Rights Act. Especially since 1982, plaintiffs have argued that certain practices violate Section 2 of the act; for jurisdictions captured by the trigger provision of Section 4, Section 5 offers another alternative. Section 5 cases were especially important after the 1970s round of redistricting because they could be brought against those jurisdictions considered the worst offenders and because the burden of proof rests with the jurisdiction attempting to alter the electoral practice or procedure. These cases significantly reduced the use of multimember districts in southern state legislatures (Grofman and Handley, 1991), and they remain, according to one civil rights lawyer, the "first line of defense" in the covered areas.1 Nonetheless, the applicability of Section 5 to only covered jurisdictions and to only changes in electoral practices is a severe limitation. Consequently, cases involving constitutional arguments were also brought throughout the 1970s and early 1980s. In 1982 the Voting Rights Act was again extended, and in the process important amendments were made to Section 2; most of the litigation since then has been based on that revision. Lower courts began interpreting the revised Section 2 immediately after it was approved, and eventually, in June 1986, the Supreme Court decided Thornburg v. Gingles, the current authoritative legal interpretation for most vote dilution cases.2 In this chapter we review these developments, first summarizing the most significant cases brought under Section 5 and then covering in detail the development of constitutional arguments, the amendment of the Voting Rights Act, the series of cases culminating in Thornburg v. Gingles, and the Gingles decision itself. 29

30


Section 5 protection against vote dilution Section 5 was included in the Voting Rights Act to prevent covered jurisdictions from replacing the tests and devices suspended by Section 4 of the act with new legislation that would deny or abridge the right of blacks to vote. As noted in Chapter 1, this section froze all voting regulations in covered jurisdictions as of November 1964, requiring these jurisdictions to submit changes in "any voting qualification or prerequisite to voting, or standard, practice or procedure with respect to voting" to either the attorney general or the U.S. District Court for the District of Columbia for "preclearance." The proposed changes would be precleared only if the jurisdiction could convince the Justice Department or the district court that they did not have a racial purpose or effect. The significance of Section 5 did not become evident until the decision in Allen v. State Board of Elections (1969), in which the Supreme Court applied this section to changes that diluted black citizens' votes as well as to devices that disfranchised blacks. In Allen the majority held that "Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way" (p. 566). Consequently, the Court determined that a Mississippi statute authorizing a switch from district to at-large elections for county supervisors was a change in voting practices covered by Section 5:3 The right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot. .. . Voters who are members of a racial minority might well be in the majority in one district, but a decided minority in the county as a whole. This type of change could therefore nullify their ability to elect the candidate of their choice just as would prohibiting some of them from voting, (p. 569) The Court in Allen also ruled that private parties could challenge unsubmitted changes and that local federal district courts could consider whether Section 5's requirements were pertinent to the changes at issue, but that only the District Court of the District of Columbia or the attorney general could rule on whether or not a "covered" change had a discriminatory purpose or effect on black voters. Two years later, the Supreme Court reaffirmed its broad construction of Section 5 in Perkins v. Matthews (1971) by holding that jurisdictions covered by Section 5 could not annex territory or relocate polling places without preclearance. Forcing Section 5 compliance on municipal boundary alterations was important because the annexation of an adjacent area with large numbers of white voters was a common ploy for diluting the voting power of blacks (e.g., the cities of Richmond and Petersburg, Virginia, both used annexations to transform cities that had become majority black into cities in which whites once again comprised a majority of the population).4 Following Allen and Perkins, an increasing number of electoral changes were

The evolution of a vote dilution standard

31

submitted by covered jurisdictions for review and approval by the Justice Department. In the wake of the 1970 census and the ensuing redistricting, a substantial number of important districting proposals were submitted to the Justice Department, and in Georgia v. United States (1973), the Court determined that redistricting plans were subject to Section 5. The Court went on to state that "had Congress disagreed with the interpretations of Section 5 in Allen, it had ample opportunity to amend the statute," and given that Congress chose not do so when it extended the Voting Rights Act in 1970, "we can only conclude, then, that Allen correctly interpreted" Section 5 as encompassing a broad spectrum of voting practices and procedures (p. 534). Despite the Court's broad interpretation of Section 5 to include a wide variety of dilutive techniques, there are serious limitations to Section 5 as a weapon for attacking minority vote dilution. First, Section 5 does not apply to the entire United States but, rather, only to jurisdictions captured by the Section 4 trigger.5 Second, Section 5 applies only to proposed changes in districting. In particular, voting laws and practices adopted before 1964, when Section 5 of the act went into effect (or before a jurisdiction's inclusion under Section 5 of the act), are not subject to challenge. Third, until the mid-1980s, the only test for a Section 5 violation other than intentional discrimination was a test for retrogression, in which a change was held to be violative if, and only if, it led to a deterioration (retrogression) in minority representation. This is an extremely weak test, as it does not address the possible dilutive effects of the original laws.6 Because of these limitations, many discriminatory practices had to be challenged through alternative routes. Thus, at the same time that Section 5 cases were being adjudicated, plaintiffs mounted constitutional attacks on vote dilution outside the framework of Section 5 of the Voting Rights Act. Constitutional protection against vote dilution Beginning in 1964, with its decision in Reynolds v. Sims, the Supreme Court recognized vote dilution as an actionable wrong under the Constitution. In Reynolds, the landmark legislative reapportionment case arising out of Alabama, the Court held that voting districts that varied significantly in population violated the Equal Protection Clause of the Fourteenth Amendment. The Court did so by determining that the right to vote could be abridged unconstitutionally by a dilution of one's voting strength as well as by an outright denial of the ballot. This decision, of course, led to a long series of "one person, one vote" cases, most of which are not directly relevant here. However, there was another series of cases leading directly to the matter of minority voting rights. These began with an assault on the constitutionality of multimember districts.

32


The Court was first asked to consider the possible dilutive effect of a multimember districting plan only six months after Reynolds was decided. In Fortson v. Dorsey (1965), residents of the seven multimember senatorial districts in Georgia alleged that multimember districts were a violation of the Equal Protection Clause because specific areas of a district could be outvoted by other areas of the district, thereby preventing the former areas from electing candidates of their own choice. The Court held that multimember legislative districts were not unconstitutional per se, but Justice William J. Brennan, Jr.'s majority opinion warned: "It might well be that, designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population" (p. 439). In 1966, in Burns v. Richardson, the Court further elaborated on the Fortson formulation. In Burns, the Court reviewed the constitutionality of an interim apportionment plan adopted by the Hawaii legislature. The Court again declined to mandate single-member districts, but Justice Brennan, delivering the opinion of the Court, repeated his admonition that apportionment schemes that used multimember districts would constitute an "invidious discrimination" if they met the rule established in Fortson. The Court argued that an "invidious effect" or an "invidious result" could be more easily demonstrated if the multimember districts were large in relation to the total number of legislators, if there were no residential subdistricts within the districts, or if multimember districts were employed in the legislative apportionment plans of both houses (p. 88). The Court's first venture into the issue of "racial" vote dilution came five years later, in Whitcomb v. Chavis (1971).7 In Whitcomb, the Court held that the validity of multimember districts was justiciable on minority vote dilution grounds but rejected a claim that the county wide election of a multimember state legislative delegation from Marion County (Indianapolis), Indiana, "illegally minimizes and cancels out the voting power of a cognizable racial minority" (p. 144). Black residents of Indianapolis had challenged the county wide multimember districting plan, alleging that the multimember legislative district plan discriminated against blacks living in the "ghetto area" by "invidiously diluting] the force and effect of [their] vote" (p. 128). As proof of the dilutive effect of the multimember district, the challengers offered evidence that the number of black legislators was not in proportion to the entire minority population. The Court found no evidence that "Marion County's multi-member district . . . [was] conceived or operated as [a] purposeful devic[e] to further racial or economic discrimination" (p. 149). In rejecting this challenge, the Court held that a claim alleging a lack of proportional representation alone was not sufficient to support a Fourteenth Amendment vote dilution challenge. The Court


33

added that in order to sustain their claim, plaintiffs would also have to produce sufficient evidence that minority "residents had less opportunity than did other . . . residents to participate in the political process and to elect legislators of their choice" (p. 149). However, the Court neglected to state explicitly what evidence would have been necessary to meet this standard. Although the Court declined to find multimember districts dilutive of minority voting rights in its initial exposure to the issue, its reasoning in subsequent cases indicated that the constitutionality of such schemes was more suspect in the South. Indeed, a series of rulings in the early 1970s, at both the lower court and Supreme Court levels, established that multimember districts in the South, given that area's long history of racial disfranchisement, had less chance of withstanding a legal assault from blacks. White v. Regester (1973), decided two years after Whitcomb, was the first case in which the Supreme Court sustained an attack on the use of multimember districts.8 In this case, the Supreme Court unanimously held that multimember state legislative districts in Dallas and Bexar (San Antonio) counties, Texas, diluted the voting power of African-American and Mexican-American voters in violation of the Equal Protection Clause. After reiterating the Whitcomb holding that multimember districts are not unconstitutional per se and that the plaintiff must show more than a mere lack of proportional representation, the Court indicated that a lack of equal access to the political process is necessary to establish a constitutional violation and, for the first time, established relatively formal guidelines for the evaluation of equal opportunity. In attempting to ascertain the political access of the two minority groups, the Court deferred to the district court's "intensely local appraisal" (p. 769) of the situation. In doing so, the Court reviewed factors that supported plaintiffs in their claim that multimember districts were being used to unconstitutionally dilute minority voting power: the history of official racial discrimination in Texas's election process (i.e., the white primary system and the use of a poll tax), multimember districts combined with a majority vote requirement and a place system not tied to residency, slating organizations that were controlled by whites, election campaigns that employed racial tactics, a lack of minority elected officials in the community, and the election of candidates who were "insufficiently responsive" (p. 769) to minority group interests. Although the Court noted that these characteristics viewed by themselves were not necessarily invidious or improper, they were enough to sustain the judgment based on the "totality of the circumstances" (p. 769). In Zimmer v. McKeithen (1973), the Fifth Circuit Court relied on the "totality of circumstances" standard handed down by the Court in White to rule that atlarge elections for police jurors and school board members in East Carroll Parish, Louisiana, diluted the voting strength of black residents in violation of the

34


Fourteenth and Fifteenth amendments. In establishing the standards according to which minority vote dilution might be judged, the Fifth Circuit relied heavily on a list of factors gleaned from the Supreme Court's opinion. The circuit court, however, in attempting to bring some order to the "panoply of factors" identified in White, offered a more systematic and comprehensive set of dilution guidelines than Justice Byron R. White had presented. According to Zimmer, unconstitutional dilution exists where a minority can demonstrate a lack of access to the process of slating candidates, the unresponsiveness of legislators to their particularized interest, a tenuous state policy underlying the preference for multimember or at-large districting, or the existence of past discrimination in general precludes the effective participation in the election system. . . . Such proof is enhanced by a showing of the existence of large districts, majority vote requirements, anti-single shot voting provisions and the lack of provision for at-large candidates running from particular geographic subdistricts. (p. 1305) The Zimmer Court went on to explain that not all of the criteria need be satisfied in a successful dilution claim; "the fact of dilution is established upon proof of the existence of an aggregate of these factors" (p. 1305). This formula for testing multimember districts for their possible dilutive effect became known as the Zimmer test, or the "totality of the circumstances doctrine." 9 From 1973 until 1980, the growing number of legal challenges to multimember or at-large election systems in the South were decided primarily on the basis of this dilution standard, particularly in the Fifth Circuit, where the vast majority of such cases were tried. As minority vote dilution litigation progressed during the decade, the court refined its standards of proof under the Zimmer analysis. For example, evidence of racial bloc voting became necessary to a successful dilution challenge in the Fifth Circuit because of the logical presumption that black voters were not disadvantaged if whites were not voting against the minority's candidate of choice (see Nevett v. Sides, 1978). As thus refined, the Whitcomb-White-Zimmer approach continued to be utilized by the courts, with its supporters asserting that it provided a "flexible, fact-specific, precise and workable" standard (Parker, 1983, p. 725). However, in 1980 this approach to vote dilution was dramatically altered by the Supreme Court in City of Mobile v. Bolden. In this decision, the Court rejected the evidentiary standards developed in Zimmer and declared that proof of discriminatory intent was required for plaintiffs to prevail in a constitutional vote dilution claim. The Supreme Court establishes the need to prove discriminatory purpose in Mobile v. Bolden City of Mobile v. Bolden (1980) was a classic Zimmer type of suit. Mobile operated under a commission form of government in which three city commis-


35

sioners were elected at-large within the city. Even though the population of Mobile was 35 percent black, no black candidate had been elected to a commission seat since the system had been adopted in 1911. Employing a Zimmer analysis, the district court found: (1) a history of racial discrimination, (2) city commissioners who were unresponsive to minority interests, and (3) a number of suspect voting practices in addition to at-large voting (e.g., the absence of any district or ward residency requirements, a place system, and a majority vote requirement). The district court concluded that the plaintiffs "met the burden cast in White and Whitcomb by showing an aggregate of the factors catalogued in Zimmer" and therefore held that the at-large election scheme "results in an unconstitutional dilution of black voting strength" (p. 402). The Fifth Circuit sustained the lower court's decision that black voting strength was diluted in violation of blacks' right to vote under the Fifteenth Amendment, their right to equal protection under the Fourteenth Amendment, and also the prohibition against any denial or abridgment of the right to vote contained in Section 2 of the Voting Rights Act. The Supreme Court reversed and rejected the claim that the at-large election of the city commission in Mobile impermissibly diluted black voting strength. The Supreme Court's decision in Bolden emerged from a sharply divided court, with six justices writing separately. The six-person majority overturning the lower courts' decisions consisted of four justices - Justices Potter Stewart, Lewis F. Powell, Jr., and William H. Rehnquist and Chief Justice Warren E. Burger who joined in a plurality opinion; Justice John Paul Stevens, who concurred in the judgment; and Justice Harry A. Blackmun, who concurred only in the result. Justice White wrote a dissenting opinion, and Justices Thurgood Marshall and William Brennan joined in a separate dissent. The plurality in Bolden held that a voting rights suit grounded on the Fourteenth Amendment must demonstrate that a questioned practice or law was established or maintained with racially discriminatory intent.10 Justice Stewart, who delivered the plurality opinion, asserted that "only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment" (p. 66). For plaintiffs to prevail in a challenge to an at-large voting scheme, "an illicit purpose must be proved" (p. 67). In addressing the Fifteenth Amendment challenge, Justice Stewart argued that the Fifteenth Amendment protects only against discriminatory voting practices that directly prohibit minorities from gaining access to the ballot, and because "Negroes in Mobile 'register and vote without hindrance,' " no Fifteenth Amendment violation existed (p. 65). (A majority of five justices, however, disagreed with the plurality on this issue and concluded that the Fifteenth Amendment also protects against vote dilution.) In any case, according to the plurality, proof of "racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation" (p. 62).

36


As for the statutory challenge, the plurality contended that Section 2 of the Voting Rights Act "was intended to have an effect no different from that of the Fifteenth Amendment itself" and therefore "adds nothing to the appellees' Fifteenth Amendment claim" (p. 61). There was no clear majority on the issue of whether Section 2 required proof of discriminatory purpose. Justices Marshall and Brennan, although agreeing with Justice Stewart that the statutory prohibition in Section 2 "contains the same standard as the Fifteenth Amendment" (p. 105), thought that proof of discriminatory intent was not required to demonstrate Fifteenth Amendment unconstitutionality. Justices Blackmun, Stevens, and White, in their separate opinions, did not discuss the Section 2 question. However, "because six Justices agreed that the scope of section 2 was the same as that of the fifteenth amendment, the lower courts generally considered themselves bound by the Stewart plurality's ruling that section 2 requires proof of discriminatory purpose" (Parker, 1983, p. 733). n Having restricted the dilution issue to Fourteenth Amendment grounds, the plurality proceeded to launch an assault on the Zimmer factors that had governed the lower courts' consideration of the case. The Court held that although these factors "may afford some evidence of a discriminatory purpose," they "were most assuredly insufficient to prove an unconstitutionally discriminatory purpose in the present case" (p. 73). Drawing inferences of discriminatory intent based on such circumstantial evidence was clearly not enough; minority voters had to prove that a challenged voting law was adopted " 'because of,' not merely 'in spite of,' its adverse effects" (p. 72). By sharply limiting the inferences that the lower courts were allowed to draw from the evidence and by treating each of the facts in isolation rather than as part of a whole, the Mobile court rendered discriminatory impact largely irrelevant and essentially overturned the WhiteZimmer "totality of the circumstances" test. Justice White, author of the White decision, dissented from the plurality, calling the plurality's opinion "flatly inconsistent" with White. He adopted the Fifth Circuit's view that the Zimmer factors provided inferences of discriminatory purpose. Justices Marshall and Brennan, in an opinion delivered by Justice Marshall, issued a vociferous dissent in which they asserted that the Fourteenth and Fifteenth amendments outlawed all laws that, intentionally or otherwise, lessened the impact of every citizen's vote; thus, according to Marshall, "vote-dilution decisions require only a showing of discriminatory impact to justify the invalidation of a multimember districting scheme" (p. 104). Rather than having judges take "an unguided, tortuous look into the minds of officials in the hope of guessing why certain policies were adopted and others rejected," he proposed a "disproportionate-impact test" that would "reach only those decisions having a discriminatory effect upon the minority's vote" (p. 134). Even accepting the plurality's premise, however, the two jus-


37

tices found that the plaintiffs had met the burden of proving discriminatory purpose. Essentially, the Supreme Court plurality established in Bolden a standard of proof that required a "smoking gun" - that is, specific evidence that a particular election practice was rooted in racist intent, as revealed in the statements or actions of public officials. This standard is very difficult to meet, and though not foreclosing vote dilution suits altogether, constituted a "severe setback," by making success in such actions much less likely (Avila, 1982). Indeed, the decision had an "immediate and devastating impact" on litigation challenging discriminatory dilution of minority voting strength (Parker, 1983, p. 735); cases before the courts were "overturned and dismissed," and "plans for new cases were abandoned" (Derfner, 1984, p. 149). The lower courts frequently rejected challenges to at-large voting systems for insufficient evidence of discriminatory intent, even in instances in which minority voters were completely shut out of the political processes (Parker, 1983, p. 736). In those cases in which constitutional challenges were sustained, direct "smoking gun" evidence of discriminatory intent had been produced (Parker, 1983, p. 737).12 The Mobile decision aroused a storm of protest, particularly within the civil rights community. A number of criticisms were leveled: The decision broke with precedent in previous vote dilution cases; the Court ignored the fact that voting was considered a "fundamental" right and therefore that any curtailment of that right must be subject to "strict scrutiny"; and in determining that proof of discriminatory intent is necessary, the Court asked "the wrong question" and established a burden of proof that was almost impossible for plaintiffs to meet. Perhaps the most thorough critique of the decision was presented by Marshall in his dissent. He argued that the plurality decision failed to reflect the traditional solicitude for the right to vote: The right to vote is a fundamental right "because it is 'preservative of all rights'" (quoting Yick Wo v. Hopkins, 1886, p. 370), and it is therefore subject to "strict judicial scrutiny," according to Marshall (p. 113). Proof of discriminatory purpose is clearly not necessary (p. 114). Furthermore, the Bolden plurality opinion failed to advance a reason for its differential treatment of a Reynolds type of vote dilution and minority vote dilution in making discriminatory intent the keystone of the latter and not the former. (Population malapportionment does not require proof of invidious purpose; mathematical inequality alone is deemed sufficient to support a claim of dilution.) Even if the Court had been successful in distinguishing the malapportionment dilution suits from racial vote dilution, argued Marshall, Bolden still broke with precedent in past vote dilution cases: "The plurality's approach requiring proof of discriminatory purpose in the present cas[e] is . . . squarely contrary to White and its predecessors" (p. 112). Although the plurality contended that White required a showing of discriminatory intent, their argument

38


was unconvincing, according to Marshall. He argued that not a single word in the White decision is devoted to the possible motivations of the Texas legislature and that the Court examined only "the discriminatory effects of the combination of an electoral structure and historical and social factors" (p. I l l , n. 7). Critics of the decision also contended that Bolden established an exceedingly burdensome and irrelevant evidentiary standard that would make it nearly impossible to win suits against racially discriminatory electoral systems. Proving discriminatory intent would be impossible because "legislators cannot be subpoenaed from their graves for testimony about the motives behind their actions" (U.S. Senate, 1982, p. 36) in the case of a law passed more than a decade or so ago.13 A legislative record that would reveal the reasons for adopting the election practice is unlikely to exist in most communities. Even if such a record does exist, legislators may well have sought to offer a nonracial rationalization for a law that in fact purposefully discriminates. Furthermore, the motives of officials acting "100 years ago is of the most limited relevance" with regard to whether the electoral system is operating to exclude minority groups today (U.S. Senate, 1982, p. 36).14 In an effort to minimize the damage to the voting rights movement inflicted by Bolden, civil rights advocates focused on Section 2 as a medium for "reversing" the decision. Although the Supreme Court's decisions on the meaning of the Constitution are final, Congress is free to supersede the Supreme Court's interpretation of a statute by passing an amendment or a new statute spelling out in clearer language how that statute is to be interpreted. By amending Section 2 to make evidence of discriminatory effects sufficient to establish a statutory violation of voting rights, a statutory bypass around the Bolden decision would be created. The civil rights community began to lobby Congress to adopt a "results" test in Section 2, so as to provide a separate statutory standard for weighing dilution claims - as opposed to the constitutional standard set out in Mobile. It was hoped that Congress could be persuaded to modify the evidentiary standard for vote dilution set out by the Court and "restor[e] the legal standards . . . which applied in voting discrimination claims prior to . . . Bolden" (U.S. Senate, 1982, p. 2). Congress dictates a vote dilution standard: the 1982 amendments to the Voting Rights Act In one sense the Supreme Court's decision in Mobile v. Bolden (1980) was well timed. The special provisions of the Voting Rights Act, having been extended for seven years in 1975, were due to expire in August 1982. The need to consider extending the Voting Rights Act by that date offered critics of the decision an opportunity to formulate a statutory bypass around it. Civil


39

rights advocates began an extensive lobbying campaign to persuade Congress to replace the intent standard established by the Court in Bolden with a "results test." Although Section 2 was not a special provision of the act and was not due to expire, it provided a handy vehicle for legislative modification of the Bolden intent standard. A simple rewording would eliminate the need to prove purposeful discrimination in a vote dilution case, provided that the plaintiffs alleged a Section 2 violation rather than (or in addition to) a constitutional violation. The legislative history of the Section 2 revision, which began in May 1981, with hearings before the House Subcommittee on Civil and Constitutional Rights, is detailed elsewhere (Handley, 1991, chap. 4). After lengthy and sometimes acrimonious debate in both chambers, revisions to the act were passed by Congress on June 23, 1982, and signed by President Ronald W. Reagan on June 29. Section 2 now reads: (a) No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner 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, or in contravention of the guarantees set forth in section 4(f)(2). (b) A violation of subsection (a) if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered; Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. In addition to the revision made to Section 2, the new law extended the special provisions of the act for an additional twenty-five years and provided a new procedure under which jurisdictions subject to special coverage can win exemption or "bail out" from the act.15 Other provisions of the 1982 amendments included the extension until 1992 of bilingual assistance provisions and a new provision that established the right of a blind, disabled, or illiterate voter to "assistance by a person of the voter's choice," other than the voter's employer or union agent. The legislative history of the Section 2 amendment provided extensive guidance as to the intent of Congress concerning how the courts were to apply the new results standard. A report of the Senate Judiciary Committee states that this amendment is designed to make clear that proof of discriminatory intent is not required to establish a violation of Section 2. It thereby restores the legal standards,

40


based on the controlling Supreme Court precedents, which applied in voting discrimination claims prior to the litigation involved in Mobile v. Bolden. (U.S. Senate, 1982, p. 2) According to the report, requiring proof of purposeful discrimination is inconsistent with the original legislative intent of Section 2 as well as court precedent prior to the Bolden decision. Courts applying the statutory results test need not examine the decision makers' intent in creating or maintaining challenged electoral schemes, and they cannot rely solely on the degree to which minority groups are represented on legislative bodies in making their determination. Instead, the courts are to consider such typical factors, derived from "the analytic framework used by the Supreme Court in White, as articulated in Zimmer" (U.S. Senate, 1982, p. 28), as are listed in the Senate report. Proof of a violation of Section 2 in a given jurisdiction might include "a variety" of the following factors: 1. the extent of any history of official discrimination . .. that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process; 2. the extent to which voting in elections . . . 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 may 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 . . . 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 overt or subtle racial appeals; 7. the extent to which members of the minority group have been elected to public office in the jurisdiction. (U.S. Senate, 1982, pp. 28-29) The report indicates two additional factors that may have some probative value: "whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group" and whether the policy underlying the challenged electoral practice is "tenuous." The Senate committee report makes clear that although the factors it lists are often the most relevant considerations, they are not exclusive and therefore not controlling. A litigant need not prove all, or even a majority, of the factors to establish a Section 2 violation: "There is no requirement that any particular number of factors be proved, or that a majority of them point one way or another" (U.S. Senate, 1982, p. 29). The totality of the circumstances approach derived from White and applied by the Fifth Circuit Court in Zimmer is the


41

approach that should be employed by the courts to determine whether "the voting strength of minority voters is . . . 'minimized or canceled out'." The Supreme Court revisits the intent test of Bolden On July 1, 1982, two days after the Voting Rights Act extension bill was signed into law by President Reagan, the Supreme Court retreated somewhat from its Bolden ruling, holding that "circumstantial evidence" could be used to determine whether an electoral system was created or maintained for the purpose of racial discrimination. In Rogers v. Lodge, the Court affirmed the Fifth Circuit Court of Appeals decision that the at-large county commission elections in Burke County, Georgia, diluted the voting strength of blacks in violation of the Fourteenth Amendment's guarantee of equal protection. In this six-to-three decision, the Court backed away from a strict "intent" test promulgated less than eighteen months earlier in Bolden. Specifically, the Court held that "discriminatory intent need not be proven by direct evidence" (p. 618) and that proof of the White-Zimmer factors was sufficient to show discriminatory purpose. The Court adhered, however, to its position that proof of discriminatory purpose was required. A holding of unconstitutional vote dilution in Rogers is difficult to reconcile with Bolden because the evidence in the two cases is so similar. (For details, see Handley, 1991, pp. 146-147.) As it happened, most of the justices thought the two cases did, in fact, require the same decisions. The four justices who voted to strike down the at-large election system in Bolden also voted to strike it down in Rogers, whereas three of the justices who voted to uphold the Mobile City Commission also voted to uphold the county commission in Burke County. The reasons for the contrary ruling rest with Chief Justice Burger, who "switched" his vote from "constitutional" for Mobile, to "unconstitutional" for Burke County, and Justice Sandra Day O'Connor, who voted to hold the Burke County system unconstitutional, whereas her predecessor, Justice Stewart, had voted to uphold Mobile's system. Although the majority opinion implicitly cast doubt on the continuing validity of the Bolden ruling, it did not overrule Bolden. Justice White, the author of the Court's 1973 decision in White and a dissenter in Bolden, wrote for the majority in Rogers. In his opinion he attempted to distinguish the two cases; the difference between Rogers and Bolden, according to Justice White, was the standard of proof used by the lower court to determine whether a constitutional violation of voting rights was present. The district court in Bolden had relied on the White-Zimmer factors without considering whether they established intent, but the trial court in Rogers had used such White-Zimmer factors as the lingering

42


effects of past discrimination on black political participation, the depressed socioeconomic status of blacks, blacks' historical defeat at the polls, and the unresponsiveness of public officials to black political interests to infer discriminatory purpose.16 The majority's acceptance of the probative value of evidence organized around the Zimmer factors substantially eases the burden of proving intent by allowing the courts to draw inferences of discriminatory intent from circumstantial evidence. However, an ultimate finding of intentional discrimination, even if based only on the circumstantial and inferential factors of White-Zimmer, is still required in order to prove unconstitutional vote dilution. Thus, the Rogers ruling does not do away with the requirement of proving intent to discriminate in order to establish a constitutional violation. Rogers is now the controlling constitutional precedent, but what the courts will make the intent standard after Rogers is difficult to foresee. Although it is clear that the decision signals a retreat from the Bolden plurality's minority vote dilution analysis and a revitalization of the Zimmer factors, the courts have had no further opportunity to develop Fourteenth (or Fifteenth) Amendment theories of minority vote dilution. Since the Rogers venture into deciding a dilution case under the Constitution, the Supreme Court has insisted that other vote dilution cases be decided under Section 2, and it has sent several cases back to the lower courts for that purpose (Derfner, 1984, p. 161). The standard for determining the presence of unconstitutional vote dilution may therefore be a moot issue.17 What is important is what the courts have made of the results standard set by Section 2. The lower courts consider amended Section 2 After the passage of the 1982 amendments to the Voting Rights Act, it was left to the courts to grapple with the problem of developing appropriate guidelines for judging a vote dilution claim based on the results test of Section 2. Beyond endorsing the totality of the circumstances test announced in White v. Regester and outlining a number of "typical" factors to be considered indicative of vote dilution, Congress left future interpretation of amended Section 2 to the courts. The Fifth Circuit was the first court of appeals to consider a vote dilution claim on the basis of the newly amended Section 2. In Jones v. City ofLubbock (1984), African-American and Hispanic residents of Lubbock, Texas, challenged the city's at-large system for electing city council representatives on both constitutional and Section 2 grounds. The Fifth Circuit in Jones upheld the constitutionality of newly amended Section 2, affirmed the district court's decision that the city's election system violated Section 2, and outlined a standard for determining the presence of illegal vote dilution based on the nine factors out-


43

lined in the Senate Report. The court reviewed the evidence it found persuasive in concluding that Lubbock's electoral system violated Section 2: the history of official discrimination against blacks and Hispanics and evidence of its lingering effects in Lubbock in the socioeconomic disparities between Anglos and minorities and in depressed minority political participation; an electoral system that featured every structural impediment "that courts have identified as aggravating the impact of an at-large election system" (p. 385); and evidence of persistent racial polarization, such that it was unnecessary for candidates and elected public officials to seek minority political support. Indicating that there was no requirement that any specific number of factors be proven in order to establish a violation of Section 2, the Fifth Circuit nevertheless stressed the importance of a finding of racial polarization, stating that "the legislative discussion of polarized voting requires that we weigh more carefully the effect that polarization has on the political scheme challenged" (p. 385). Furthermore, the appellate court rejected the city's argument that the responsiveness of city officials to the needs of minorities undercuts a finding of racially polarized voting: "The absence of unresponsiveness does not negate other inferences that flow from polarization. Wheth r or not city officials do ignore minority interests, polarization nevertheless frees them of political reprisal for disadvantaging the minority community" (p. 381). In United States v. Marengo County Commission (1984), the Eleventh Circuit Court of Appeals devised a Section 2 vote dilution standard very similar to the one outlined by the Fifth Circuit in Jones, emphasizing the importance of racial polarization even more than the Fifth Circuit had in Jones. In Marengo County, the court reviewed a vote dilution challenge to an at-large scheme for electing county commissioners and school board members in Marengo County, Alabama. The district court, ruling before Congress amended Section 2, upheld the atlarge scheme because plaintiffs had failed to prove discriminatory purpose. On appeal, the Eleventh Circuit held that the newly revised Section 2 applied to the case, found compelling evidence that the at-large election system violated Section 2, and remanded the case to the district court for an update of the record. Accompanying the remand was an explanation of how the Section 2 results test should be applied to an allegation that an at-large election system unlawfully dilutes minority votes. Judge John Minor Wisdom, writing for a unanimous three-judge panel of the Eleventh Circuit, reviewed the legislative history of Section 2 and determined that racially polarized voting "will ordinarily be the keystone of a dilution case" (p. 1566). He reasoned that Section 2 is intended "to remedy it [race-conscious politics] where it already exists" and that "the surest indication of raceconscious politics is a pattern of racially polarized voting" (p. 1567). Although stressing the importance of racial bloc voting, the Eleventh Circuit also discussed

44


at some length the evidence presented with regard to each of the other "typical" factors identified in the Senate Report: an undisputed record of past discrimination; considerable social and economic differences between blacks and whites; structural elements, in addition to at-large elections, that were suggestive of vote dilution (staggered terms, numbered posts, and a majority vote requirement in the Democratic primary); and the fact that no black had ever been elected to the county commission or the school board, even though approximately half of the county's population was black. The Eleventh Circuit also briefly discussed the two "additional" factors listed in the Senate Report. After finding that the state policy underlying the at-large requirement was tenuous (the state enacted the at-large system in 1955 "in direct response to the prospect of increased black political participation" [p. 1571]), the court explained that the "tenuousness" factor, although less important under the results test than under the intent standard, is still relevant because "evidence that a voting device was intended to discriminate is circumstantial evidence that the device has a discriminatory result" (p. 1571). The second "additional" factor - the issue of responsiveness - was also deemed less important. "Unresponsiveness would be relevant only if the plaintiff chose to make it so," because "although a showing of unresponsiveness might have some probative value a showing of responsiveness would have very little" (p. 1572). The court found that although the Marengo County Commission may be responsive to the minority group's material needs (roads, sewers, etc.), the evidence indicated that it was not responsive to the group's political needs - the desire to elect candidates of its choice - which is, of course, the focus of the Voting Rights Act. Reiterating the reasoning articulated in Marengo County, the Eleventh Circuit Court in United States v. Dallas County Commission (1984), and later the Fifth Circuit Court in McMillan v. Escambia County (1984), utilized a hierarchy of factors in which racially polarized voting was preeminent. In Dallas County, a Section 2 challenge to the at-large election system for the county commission and the county school board in Dallas County, Alabama, the Eleventh Circuit discussed all nine factors listed in the Senate Report but stressed the importance of racial polarization as the keystone of a dilution case. The appellate court determined that the district court had erred in its assessment of racially polarized voting in Dallas County. Although the district court had found evidence of racial polarization,18 it discounted its effect, emphasizing several factors it contended counteracted a finding of racial bloc voting: Some of the blacks who ran were fringe-party candidates; blacks did not actively seek the votes of whites; whites often supported white incumbents over black candidates; and there was apathy among black voters. The appeals court, however, concluded that none of these factors was sufficient to override a finding of racial polarization. The case was remanded to the district court for further consideration. In McMillan, plaintiffs challenged the at-large system for electing county com-


45

missioners in Escambia County, Florida. The Fifth Circuit Court of Appeals, in an opinion that relies heavily on Marengo County, affirmed the district court's finding of a violation of Section 2. This conclusion was based on a finding of racial polarization combined with evidence of a history of past discrimination and indications of its lingering effects as well as such structural impediments as staggered terms, numbered posts, and a majority vote requirement in the Democratic primary. According to the Fifth Circuit, racial polarization occurs "whenever a black challenges a white for county wide office, a consistent majority of the whites who vote . . . consistently vote for the black's opponent" (p. 1043). Statistical evidence pointing to a "consistent pattern of racially polarized voting" (p. 1040) and the fact that no black had ever been elected to office - despite the fact that blacks comprised 17 percent of the registered voters in the county - led the court to conclude that voting in Escambia County was polarized. The Eleventh Circuit adopted a somewhat different approach to racial bloc voting in Lee County Branch of NAACP v. City of Opelika (1984), a challenge to the at-large scheme for electing the city commission in Opelika, Alabama. The appellate court remanded the case to the district court for additional evidence regarding the question of racially polarized voting. Noting that under the Marengo County standard, racial bloc voting is a key consideration, the court found the evidence presented at trial insufficient to make a determination as to the existence of racially polarized voting in the Opelika city elections. The Opelika decision parts company with the reasoning set forth in Marengo County, because the majority in Opelika argued that evidence of polarized voting requires more than a showing of divergent voting patterns between blacks and whites. Evidence that race is the motivating factor in disparate voting patterns is necessary, according to the Opelika court: It will often be necessary to examine factors other than race that may also correlate highly with election outcomes - campaign expenditures, party identification, income, media advertising, religion, name recognition, position on key issues, and so forth. Wellestablished statistical methods, such as step-wise multiple regressions, can test the relative importance of multiple factors. Such analysis can assist in the determination of whether race is the dominating factor in political outcomes (p. 1482). Thus, the majority of the Eleventh Circuit in this case rejected the use of a bivariate statistical analysis that simply regresses the racial composition of the precincts against the precinct votes for a given candidate in favor of a multivariate analysis that measures the relative importance of a number of factors in addition to the race of the voters.19 Other appeals court decisions emulated the Opelika approach to the question of racially polarized voting. The Court of Appeals for the Fourth Circuit in Collins v. City of Norfolk (1985) not only condoned the use of a multivariate statistical analysis to determine whether disparate voting patterns were "racially

46


motivated," but it also let stand a unique definition of racial bloc voting - one that made it virtually impossible for plaintiffs to prevail. In Collins, a Section 2 challenge to the at-large method of electing the Norfolk City Council, the district court rejected as "overly broad" the definition offered by the plaintiffs' expert witness, Dr. Richard Engstrom, that "racially polarized voting occurs when the majority of one racial group votes contrary to the majority of another racial group" (1984, p. 386) and accepted instead the definition offered by the defendants' expert witness, Dr. Timothy O'Rourke. According to Dr. O'Rourke, three indicators must be examined before racial polarization can be said to exist: First, the presence or absence of "white backlash," that is, whether white voters turn out in greater numbers than usual in response to the potential election of black candidates. Second, the voting patterns of black and white voters over a period of years. Finally, whether whites attempt to limit the field of candidates, (p. 386) The district court adopted the defendant's approach to defining and measuring racially polarized voting as "more sensible" and "more applicable to the multiple-candidate, multiple-office" elections in Norfolk (p. 386) and, using this evidentiary test for racial polarization, found that the Norfolk City Council elections did not suffer from racial polarization. Another distinctive feature of the district court in Collins was its approach to another "typical" factor listed in the Senate Report: the extent of any history of official discrimination. The district court discounted the egregious history of official racial discrimination in voting practices in Norfolk and in the state of Virginia, by finding that no lingering effects of that discrimination now inhibited blacks from fully participating in the electoral process. This conclusion was based on the district court's observation that since the Voting Rights Act was enacted in 1965, black political participation had increased dramatically, to the point that the registration and turnout of blacks slightly exceeded that of whites in the 1984 elections. The lower court in Collins held that black plaintiffs in Norfolk had failed to prove a Section 2 violation: With neither racially polarized voting nor the lingering effects of discrimination depressing political activity, blacks in Norfolk were simply not entitled to any relief. The Fourth Circuit affirmed the decision of the lower court with essentially no discussion of the controversial approach taken by the district court.20 The Eleventh Circuit in McCord v. City of Fort Lauderdale (1986) closely paralleled the approach adopted by the Fourth Circuit in Collins. In McCord, the Eleventh Circuit was asked to consider a vote dilution claim by blacks in Fort Lauderdale, Florida, alleging that the at-large election system violated Section 2. The appeals court upheld the district court finding that there was no Section 2 violation. In reaching this decision, the Eleventh Circuit argued that


47

it was relying on the guidelines it had previously outlined in Marengo County, but what distinguished McCord from Marengo County was the absence of any lingering effects of past discrimination. Citing Collins, the court observed that although the city had a history of discrimination and plaintiffs offered evidence that racial discrimination still existed, voting rights were unaffected because "blacks in Fort Lauderdale since 1970 have turned out to vote in higher numbers on a percentage basis than white voters in every election but one" (p. 1531). In addition, the Eleventh Circuit was not persuaded that the district court's finding concerning a lack of racially polarized voting was clearly erroneous. The district court had relied on a multivariate analysis presented by defendants that showed that "when race was added to other independent variables . . . the race factor explained only .6 of one percent of the dependent variables [sic] of candidate success" (p. 1532). The appeals court, citing Opelika, recognized the "potential usefulness of a multiple regression analysis" in determining whether voting is racially polarized. As is evident by a comparison of such early Section 2 cases as Jones, Marengo County, and McMillan with the later cases of Collins and McCord, there was a decided lack of consensus among the courts on the standards to be applied when weighing an allegation of vote dilution, especially with respect to the definition of racial polarization and how it should be measured. The Supreme Court addressed this issue, as well as other important Section 2 issues, for the first and, to date, the only time in Thornburg v. Gingles (1986). The Supreme Court addresses Section 2: Thornburg v. Gingles When the Supreme Court granted review of Gingles, observers anticipated a clarification of the vote dilution standard outlined in the legislative history of Section 2. And in its decision, the Court did shed light on all of the major issues, including the role of racial bloc voting in a vote dilution suit. The Court outlined the specific factors that must be proved in order to demonstrate that the use of multimember districts impairs the ability of minority voters to elect representatives of their choice, thereby creating a three-part test for judging vote dilution cases. Even though several concurring opinions were filed in the case, the Court provided reasonably definitive answers to many of the questions raised in the Fourth, Fifth, and Eleventh circuits, particularly with regard to the proper evidentiary standard to be used in assessing the degree of racial bloc voting. However, its opinion also raised new issues. The suit originated as Gingles v. Edmisten (1984) before a three-judge district court in North Carolina. In the spring of 1982, North Carolina enacted a legislative redistricting plan for the state's senate and house seats. Black registered voters brought suit, challenging one single-member and six multimember dis-

48


tricts under Section 2 of the Voting Rights Act. Plaintiffs contended that the plan diluted minority voting strength by submerging concentrations of black voters sufficient in size to form a majority of the voters in a single-member district in majority-white multimember districts and by fragmenting into more than one state senate district "a concentration of black voters sufficient in numbers and contiguity to constitute a voting majority in at least one single-member district" (p. 350). The district court relied heavily on the legislative history of the amendment, carefully examining each of the Senate Report factors as they applied to North Carolina and determining that most of them were present to one degree or another. The court recounted North Carolina's history of official racial discrimination and the lingering effects this history had on black registration and voting. Discrimination in other areas, such as education and employment, resulted in a lower socioeconomic status for blacks as a group, which in turn " operate [d] to hinder the group's ability to participate effectively in the political process" (p. 363). The majority vote requirement was viewed by the court as a "general, ongoing impediment" to the election of black candidates (p. 363). Racial appeals in election campaigns in North Carolina were found to be widespread, persistent, and as recent as the 1984 campaign for a U.S. Senate seat. Although blacks had been elected to office at most levels of government in North Carolina (with the exception of any statewide office, or to the U.S. Congress), the court determined that the overall results were minimal in relation to the percentage of blacks in the total population. Finally, and most importantly, the court found evidence of "persistent and severe" racial polarization based on a statistical analysis of fifty-three elections involving black candidates in all of the challenged districts (p. 367). The court asserted that of the Senate Report factors, the "demonstrable unwillingness of substantial numbers of the racial majority to vote for any minority race candidate or any candidate identified with minority race interests is the linchpin of vote dilution by districting" (p. 355). The district court concluded on the basis of the totality of the circumstances that blacks had less opportunity than others to participate in the political process and elect representatives of their choice in the challenged districts and unanimously upheld the plaintiffs' Section 2 challenge. The state of North Carolina appealed the district court's holding in regard to five of the multimember districts.21 On direct appeal to the Supreme Court, the state of North Carolina and the United States as amicus maintained that the lower court erred in concluding that there was a violation of Section 2. According to North Carolina, the lower court (1) had incorrectly defined legally significant racially polarized voting and had


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adopted an erroneous standard for measuring the degree of polarization and (2) did not give sufficient weight to the electoral success of some black candidates. On June 30, 1986, the Supreme Court unanimously upheld the findings of the district court for four of the five contested multimember state legislative districts involved in the suit. However, the Court was not in unanimous agreement on the legal analysis to be applied in vote dilution cases or in the evidentiary standard to be used by the court in measuring the degree of racially polarized voting, the "linchpin" of a vote dilution claim. There were actually four separate opinions filed in Gingles. Justice Brennan wrote the five-part opinion of the Court, joined by Justices Blackmun, Marshall, Stevens, and White. There were three concurring opinions. Justice White disagreed with Justice Brennan with regard to a specific section of Part III-C of the opinion and filed a separate opinion on the point of contention. Justice O'Connor, joined by Chief Justice Burger and Justices Powell and Rehnquist, filed an opinion concurring only with the judgment of the Court and disagreeing with almost the entirety of Justice Brennan's opinion. Justice Stevens, joined by Justices Marshall and Blackmun, dissented from the part of the opinion that reversed the district court's finding of vote dilution in House District 23. The majority opinion: a three-pronged test for vote dilution The majority opinion affirmed the decision of the district court with respect to four of the five contested districts and established a three-pronged test for analyzing vote dilution claims involving multimember districts. The opinion also provided a definition of legally significant racially polarized voting. Justice Brennan reviewed the nine factors outlined in the Senate Report accompanying the amendments to Section 2 and reasoned that although all of the factors listed may be relevant to a vote dilution claim challenging a multimember districting scheme, they will not be dispositive unless plaintiffs can first show a conjunction of three circumstances. The Court indicated: These circumstances are necessary preconditions for [a violation]. . . . First, the minority group must be . . . sufficiently large and geographically compact to constitute a majority of a single-member district. . . . Second, the minority group must be . . . politically cohesive. . . . Third, . . . the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate, (pp. 50-51) If the minority group is not sufficiently large enough or geographically compact enough to form a majority in a single-member district, then the fact that the district is structured as multimember is irrelevant to the minority's lack of ability to elect candidates of choice. According to the Court: "Unless minority voters possess the potential to elect representatives in the absence of the chal-

50


lenged structure or practice, they cannot claim to have been injured by that structure or practice" (p. 50). If the minority group is not politically cohesive, then there is no distinct minority interest to protect, according to the Court. Finally, the white majority must vote as a bloc to enable it usually to defeat the minority's preferred candidate. The Court recognized that it is the fact that the minority's preferred candidates usually lose that "distinguishes structural dilution from the mere loss of an occasional election" due to nondilutive factors (p. 51). The majority's three-part test establishes that the degree of racial bloc voting is the key element of a vote dilution claim. In emphasizing the preeminence of this factor, Justice Brennan echoed the reasoning first offered by the Fifth and Eleventh circuits in Jones, Marengo County, Dallas, and McMillan: Unless there is an initial showing of significant racial bloc voting, the other factors will not demonstrate that the plaintiffs have suffered a substantial inability to elect their preferred candidates. The majority accepted the definition of racially polarized voting adopted by the district court and presented by plaintiffs' expert (Grofman) that racially polarized voting exists "where there is 'a consistent relationship between race of the voter and the way in which the voter votes' . . . or to put it differently, where 'black voters and white voters vote differently' " (p. 53, n. 21). By accepting the district court's definition of racial bloc voting, the Court rejected the more stringent definition provided by the defendants and accepted by the lower courts in Collins and McCord. The purpose of investigating whether or not voting is racially polarized is twofold, according to the Court: "to ascertain whether the minority group members constitute a politically cohesive unit and to determine whether whites vote sufficiently as a bloc usually to defeat the minority's preferred candidates" (p. 56). According to the majority, legally significant racial bloc voting (i.e., the degree of bloc voting necessary to prove a claim) occurs when a white bloc voting majority is usually able to defeat candidates supported by a politically cohesive, geographically insular minority group. By differentiating between racial polarization per se and legally significant racial polarization, the Court recognized that polarized voting does not necessarily lead to electoral loss, and so the critical consideration is whether members of the minority group are able to elect candidates of their choice.22 The Court stated that "there is no simple doctrinal test for the existence of legally significant racial bloc voting" and noted that the degree of polarized voting necessary to show dilution varies by jurisdiction; an intensely local appraisal is necessary to measure whether polarized voting impairs a minority group's ability to elect candidates of their choice (p. 58). The majority, however, outlined a general approach to determining the extent of racial bloc voting,


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noting first that the court must ascertain whether there is usually enough bloc voting by whites to defeat candidates preferred by the minority. This differs depending on the presence or absence of other potentially dilutive devices such as a majority-vote requirement or numbered posts, the size and racial composition of the challenged districts, and the percentage of the voters who are members of the minority group. Second, bloc voting is generally more significant if it occurs over a period of time. Thus, a pattern of voting along racial lines that has existed over several elections is more probative than are the results of a single election. On the other hand, the results of one election in which significant racial bloc voting has not occurred are insufficient to sustain the contention that the jurisdiction is now free from legally significant racial bloc voting. In Part IV of the decision, the majority specifically rejected the argument raised by appellants and the United States that proportional or near proportional minority success in a single election precludes, as a matter of law, a finding of a Section 2 violation. The Court found that both the language of Section 2 and its legislative history indicated that the electoral success of some minority candidates does not foreclose a Section 2 claim. However, in the case of House District 23, in which blacks had achieved proportional representation in each of the last six elections, the majority did conclude that minority success had been substantial enough to reverse the holding of the district court. The plurality opinion: an evidentiary standard for racial bloc voting The extent of racial bloc voting present in a challenged jurisdiction is the "linchpin" of a vote dilution claim based on Section 2 according to the majority opinion. In Part III-C of his opinion, Justice Brennan outlined the standard of statistical evidence necessary to determine the degree of racially polarized voting. Because Justice White did not join this section, this part of the opinion does not command a majority (Part III-C was joined only by Justices Blackmun, Marshall, and Stevens). However, in his separate concurring opinion, Justice White expressed disagreement with only a small portion of Part III-C (Subpart four, which discusses the relevance of the candidate's race); he did not specifically object to the remainder of Part III-C. Justice Brennan advanced his evidentiary standard regarding racially polarized voting by repudiating certain arguments made by the state of North Carolina (and the United States as amicus). The state argued that statistical evidence must demonstrate not only that there is a correlation between race of the voters and their choice of candidates but also that race (as opposed to other factors such as socioeconomic status or party affiliation) is the principal reason for the voters' selections. According to the plurality, however, the proper inquiry under Section 2 is to ask whether voters of different races favor different candidates, not why

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they do so. Exploring the reasons for the relationship between race and votes cast interjects intent into the analysis, and "the legal concept of racially polarized voting incorporates neither causation nor intent," according to Justice Brennan (p. 62). Central to this debate about the reasons that voters cast the votes that they do is whether a court should use a bivariate or multivariate statistical analysis to determine the presence of racially polarized voting. In Jones, Marengo County, and Escambia County, a bivariate analysis was the preferred method; but in Opelika, Collins, and McCord, the courts accepted a multivariate analysis. Justice Brennan held that a bivariate statistical analysis is the proper method by which to determine racial bloc voting, because under Section 2 only the fact that the race of the voters correlates with the selection of certain candidates matters: "It is the difference between the choices made by black and white voters and not the reasons for the differences, that leads to blacks having less opportunity to elect their candidates of choice" (p. 63). In addition, Justice Brennan recognized that many of the other factors that North Carolina sought to introduce into the analysis as nonracial explanations are in fact highly correlated with race, and therefore polarized voting would virtually never be found "whenever the black and white populations could be described in terms of other socioeconomic characteristics" (p. 65).23 Moreover, according to Justice Brennan: We can find no support in either logic or the legislative history for the anomalous conclusion to which the appellants' position leads - that Congress intended, on the one hand, that proof that a minority group is predominately poor, uneducated, and unhealthy should be considered a factor tending to prove a section 2 violation; but that Congress intended, on the other hand, that proof that the same socioeconomic characteristics greatly influence black voters' choice of candidates should destroy these voters' ability to establish one of the most important elements of a vote dilution claim, (p. 67) Similarly, the plurality refused to accept North Carolina's argument that racially polarized voting should be defined as existing only when the white bloc voting is fueled by racial hostility. Plaintiffs do not have to demonstrate that racial animosity is the cause of differences in voting patterns, according to Justice Brennan, but only that the electorate does, as a matter of fact, divide along racial lines. The plurality recognized that the principal reason Congress amended Section 2 was because intent was so difficult to prove (not to mention irrelevant to the issue) - and proving racism on the part of the voters is likely to be an even more burdensome and racially divisive task than is proving racism on the part of legislators. In Part III-C, the plurality also rejected North Carolina's contention that bloc


53

voting must be defined with reference to the candidate's race. Justice Brennan argued that the race of the candidate per se is irrelevant to the analysis: The fact that race of voter and race of candidate is often correlated is not directly pertinent to a Section 2 inquiry. Under Section 2, it is the status of the candidate as the chosen representative of a particular racial group, not the race of the candidate, that is important, (p. 68) Thus, according to Justice Brennan, the appropriate inquiry is whether the preferred candidates of the minority group, be they black or white, are usually defeated.24

Justice O'Connors concurrence: the inevitability of proportional representation as the guiding standard Acquiescing only to the final judgment of the Court in Gingles, Justice O'Connor vehemently objected to the majority opinion - particularly the three-pronged test for vote dilution adopted by the Court. In a concurrence joined by the chief justice and Justices Powell and Rehnquist, she challenged the three-pronged test adopted by the Court as going beyond the legislature's intent in its enactment of Section 2 by, in effect, providing minorities with proportional representation. Justice O'Connor argued that the Court has, in effect, created "the right to a form of proportional representation" for certain minority groups with its combination of an erroneous definition of minority voting strength and its threepronged test. According to Justice O'Connor, the Court defined undiluted minority voting strength as "maximum feasible minority voting strength," calculating it as the maximum number of districts in which the minority group could constitute a majority in the most favorable single-member district plan (p. 90). The Court then proceeded to measure the degree of dilution by comparing the maximum feasible electoral success, given the number of minoritycontrolled districts possible, with the actual degree of minority electoral success. This definition is erroneous, she contended, both because it leads inevitably to proportional representation for minority groups and because it emphasizes only the ability of minorities to elect their preferred candidates and ignores other possible avenues by which minority groups might participate in the political process. Adopting this definition, Justice O'Connor reasoned, would result in a mandatory finding of vote dilution in violation of Section 2 unless the minority's preferred candidates are elected in rough proportion to the minority population percentage. Thus Justice O'Connor challenged the Court's test for vote dilution as leaning too far in the direction of proportional representation, ignoring the

54


carefully negotiated compromise inserted in the amendment of Section 2 to curtail just such a development.

The impact of Gingles on the ' 'totality-of-circumstances'' test In her concurrence in Thornburg v. Gingles, Justice O'Connor criticized the Court for adopting a standard that she perceived as essentially replacing the statutory test outlined in the legislative history of Section 2: "As shaped by the Court today, the basic contours of a vote dilution claim require no reference to most of the 'Zimmer factors' . . . which were highlighted in the Senate Report" (p. 92). She stated that she would adhere more to the approach outlined in Whitcomb and White, considering all of the relevant factors and making the decision as to whether the minority group has less opportunity than do other members of the electorate to participate in the political process and to elect representatives of their choice based on the totality of the circumstances. Is the three-pronged Gingles test designed to replace the totality-ofcircumstances test? Or is the three-pronged test a threshold requirement for further evaluation under the totality-of-circumstances test? Or does it simply offer a set of factors to be considered in addition to the list provided in the Senate Report? This uncertainty regarding the role of the three-pronged test relative to the totality-of-circumstances test is reflected in recent court opinions, which span the continuum from simply considering the three prongs as additional factors to be considered along with the Senate Report factors (e.g., see Buckanaga v. Sisseton Independent School District, 1986), to treating the three factors as preconditions to be met before considering the totality of the circumstances (e.g., see Monroe v. City ofWoodville, 1989, and McNeil v. Springfield Park District, 1988), to approaching the three-pronged Gingles test as if it were the sole standard to be met in a vote dilution challenge (see, e.g., Gomez v. City of Watsonville, 1988). The opinion produced by the Court in Gingles provides conflicting signals as to the role of the totality-of-circumstances test: On the one hand, the Court gives little attention to any of the Senate Report factors other than the degree of racial bloc voting and the extent of minority electoral success; in fact, in a footnote, the plurality explicitly states that the most important Senate Report factors to consider in a vote dilution challenge are the extent to which voting is racially polarized and the extent to which minority group members have been elected to office (pp. 4 8 ^ 9 , n. 15). The other Senate Report factors are to play a role "supportive of, but not essential to, a minority voter's claim" (p. 49, n. 15). However, at several points in the decision the Court specifically refers to the three parts of the Gingles test as "necessary preconditions," suggesting that


55

meeting the three Gingles prongs is only the first step in a vote dilution inquiry. Finally, the Court does not completely neglect the totality-of-circumstances test: As both amended Section 2 and its legislative history make clear, in evaluating a statutory claim of vote dilution through districting, the trial court is to consider the "totality of the circumstances" and to determine, based "upon a searching practical evaluation of the 'past and present reality,' " . . . whether the political process is equally open to minority voters, (p. 79) Furthermore, because the district court made specific findings with regard to each of the Senate Report factors, the fact that the Supreme Court did not discuss the totality of the circumstances in each of the challenged districts does not necessarily mean that the three Gingles factors completely replace the totalityof-circumstances test or that the three factors alone are sufficient to establish unlawful vote dilution. Thus, in cases subsequent to Gingles, the courts have had to decide the following: Are the three Gingles factors sufficient, in themselves, to demonstrate vote dilution, or must the courts also consider evidence pertaining to the other Senate Report factors and base their decision on the "totality of the circumstances?" Is satisfying the three Gingles factors necessary to a showing of vote dilution, or can a totality-of-circumstances inquiry be substituted and a conclusion drawn from factors other than the requirements established in Gingles? As the post-Gingles case law has evolved, most courts continue to apply some sort of totality-of-circumstances inquiry, reviewing all of the evidence offered with respect to each of the Senate Report factors and making findings of fact and conclusions of law with respect to the totality of circumstances in each case (Butler, 1990; Fontana, 1990; McDonald, 1989). However, courts have almost always found for plaintiffs in cases in which plaintiffs were able to satisfy the three prongs of Gingles. Of course, this still does not answer the question of whether proof of the Gingles factors is necessary or sufficient. Nor have the circuits been uniform in their approach to these considerations. At one end of the continuum is the Eighth Circuit, which has essentially treated the Gingles factors as three additional factors to be considered along with the other Senate Report factors. In Buckanaga v. Sisseton Independent School District (1986), a Section 2 suit brought by Native Americans challenging the at-large method for the election of the Sisseton School Board, the Eighth Circuit remanded the case with instructions to the district court to make detailed findings of fact with regard to each of the three Gingles factors (the district court had reached its decision before Gingles and therefore had not discussed the three-part test), as well as considering other Senate Report factors. No indication of the relative importance of the two sets of factors was given by the Eighth Circuit; nor did the court indicate what findings were necessary or sufficient for a vote dilution challenge to succeed.25

56


In the only Fourth Circuit case to address the issue directly, Collins v. City of Norfolk (1987), the appellate court stated that Gingles essentially offered a "gloss" on the Senate Report factors, and the "implication of this gloss on section 2 is that of the seven primary factors on the Senate Report list, two are typically the most important: the existence of racially polarized voting . . . and the actual results of minority-preferred candidates in winning elections" (p. 935). However, the court noted that although the presence of these two "cardinal factors" would weigh heavily in the final decision, the "ultimate determination still must be made on the basis of the 'totality of the circumstances''' (p. 938).26 The Fifth Circuit has generally discussed both the Gingles factors and the Senate Report factors in its opinions (see, e.g., Campos v. City of Bay town, 1988; LULAC v. Midland Independent School District, 1987; Overton v. City of Austin, 1989; and Westwego Citizens for a Better Government v. City ofWestwego, 1989, 1990) and stated in Citizens for a Better Gretna v. City of Gretna (1987) that it did not agree with the defendants' contention in that case that "the Supreme Court in Gingles made the Zimmer analysis obsolete" (p. 498). For the most part, the Fifth Circuit appears to have rested its decisions on the plaintiffs' ability to demonstrate that they have satisfied the three-part Gingles test, but most of the opinions issued by the Fifth Circuit have avoided spelling out the court's view of the relative importance of the two sets of factors. However, Judge Edith Jones, writing for the majority in two recent Fifth Circuit opinions, explicitly stated that the Gingles factors, although necessary to a showing of vote dilution, are not sufficient to prove a violation of Section 2. In Brewer v. Ham (1989), a challenge to the at-large system for electing the school board of the Killeen (Texas) Independent School District, Judge Jones found for the defendant school district on the grounds that the minority plaintiffs had failed to meet the first two prongs of Gingles, and she indicated the necessity of meeting the "Gingles threshold" before any other factors were to be considered. In Monroe v. City ofWoodville (1989), Judge Jones wrote that "satisfying the [Gingles] threshold test . . . does not prove a plaintiff's Section 2 claim; the district court must then proceed to the totality of the circumstances inquiry" (p. 1330). Hence, the current trend in the Fifth Circuit appears to be that the Gingles test is to be considered a necessary threshold to further consideration of the totality of the circumstances. The Seventh Circuit has had the opportunity to consider only the question of whether the Gingles test is necessary, as the plaintiffs failed to meet the first prong of Gingles in the only Section 2 case to reach the appellate court. In McNeil v. Springfield Park District (1988), the Seventh Circuit upheld the atlarge method of electing park board and school board members in the city of Springfield, Illinois, because the plaintiffs could not prove that they were able to constitute a majority in a single-member district. However, the Seventh Cir-


57

cuit suggested that the totality of the circumstances was still relevant to a Section 2 challenge, but only after the "three necessary preconditions" established by Gingles had been met: "Only upon satisfaction of these threshold criteria should a court conduct its totality-of-the-circumstances analysis and consider other relevant factors set forth in White" (p. 942).27 The Eleventh Circuit is divided on the role of a totality-of-circumstance inquiry in a vote dilution challenge and, more specifically, on the issue of the sufficiency of the Gingles factors in proving a Section 2 violation. Earlier Eleventh Circuit panels, in such cases as Carrollton Branch of the NAACP v. Stallings (1987) and Dillard v. Crenshaw County (1987), devoted some attention to both the Senate Report factors and the Gingles factors, but the court held in Carrollton that Gingles established a "new, three-part test" that, though not designed to replace the Senate Report factors completely, clearly designated some of them as more relevant to a finding of vote dilution than others were. The court in this case also indicated that proof the plaintiffs satisfied the Gingles test was sufficient to a finding of vote dilution: "The district court was incorrect when it held that even assuming racial polarization was found, the plaintiffs could not prevail because the other Senate Report factors were not proven . . . proof of these [Senate Report] factors is not required to show a vote dilution" (pp. 1555, 1561). In Solomon v. Liberty County (1990), however, the Eleventh Circuit altered its approach, with one segment of the evenly divided (five to five) en bane court indicating that although it is necessary for the plaintiffs to demonstrate that they meet the Gingles requirements, this evidence is not sufficient to conclude that vote dilution has occurred. In Solomon, black citizens challenged the at-large method of electing the county commission and the school board of Liberty County, Florida. The district court entered judgment in favor of the defendants, and the plaintiffs appealed. The Eleventh Circuit, in an opinion written by Judge Gerald Bard Tjoflat, outlined a new four-part test of vote dilution (which included the need to prove invidious discrimination) for the district court to follow on remand (Solomon v. Liberty County, 1989). The plaintiffs' request for a rehearing en bane was granted, and the three-judge panel decision was vacated. The en bane court (Solomon v. Liberty County, 1990) produced two concurring opinions, one written by Judge Phyllis A. Kravitch (joined by four judges) and the other written by Judge Tjoflat (joined by four judges). Both of the opinions acknowledged that the plaintiffs had met the three Gingles requirements; the Eleventh Circuit panel was divided, however, on whether or not this evidence was sufficient to conclude that a violation of Section 2 had occurred. Judge Kravitch held that proof that the minority group satisfied the Gingles criteria was sufficient to make out a claim of vote dilution and that "although a district court may consider the totality of the circumstances, those

58


circumstances must be examined for the light they shed on the existence of the three core Gingles factors" (p. 1017). Judge Tjoflat asserted that Judge Kravitch had "redefined the totality-of-thecircumstances test to include only the three, mechanical factors articulated in Gingles" (p. 1022). In his view, the totality of the circumstances should be interpreted such that not only is it necessary to meet each of the three Gingles requirements but also that proof of racial bias on the part of voters is required to succeed in a vote dilution claim: Section 2 prohibits those voting systems that have the effect of allowing a community motivated by racial bias to exclude a minority group from participation in the political process. Therefore, if a section 2 defendant can affirmatively show, under the totality of the circumstances, that the community is not motivated by racial bias in its voting, a case of vote dilution has not been made out (p. 1022).28 Subsequent Eleventh Circuit decisions have avoided resolving this issue. In Meek v. Metropolitan Dade County (1990), a suit brought by black and Hispanic registered voters challenging the at-large system for electing Dade County's (Florida) board of commissioners, the Eleventh Circuit panel noted that "this circuit is divided on . . . the question of whether proof of the three core Gingles factors was sufficient and whether a defendant could raise as a defense the lack of racial bias in the community" and left it to the district court to decide the issue on remand (p. 1544). The Ninth Circuit has specifically held that proof of the Gingles factors alone is sufficient to establish a Section 2 violation. In Gomez v. City of Watsonville (1988), the Ninth Circuit held that the at-large scheme for electing the Watsonville (California) City Council violated Section 2 based on proof of the three Gingles factors alone: "Factors other than the three elements discussed [in Gingles] ... while supportive of a Section 2 claim, are 'not essential to a minority voter's claim'" (p. 1419). In Romero v. City of Pomona (1989), the Ninth Circuit again pointed to the sufficiency of the Gingles factors in establishing vote dilution, holding that although the district court - "perhaps out of an abundance of caution" (p. 1421) - had applied the Senate Report factors as well as the three prongs of Gingles, this was unnecessary. The Ninth Circuit has been less clear with regard to the necessity of satisfying the three prongs of Gingles. In Romero, the appellate court rejected the plaintiffs' Section 2 claim owing to the failure of the combined minority group (blacks and Hispanics) to meet the first two prongs of Gingles. But in a recently decided case - Garza v. Los Angeles County of Supervisors (1990) - the Ninth Circuit argued that the plaintiffs need not show that they could constitute a majority in a single-member district if there were evidence of intentional discrimination.30 To date, only the Sixth Circuit has specifically held that proof of the three


59

Gingles prongs is not necessary to a showing of vote dilution - and the appellate court relied on the totality-of-circumstances test as outlined in the Senate Report to support this contention. In Armour v. State of Ohio (1990), black citizens residing in two Ohio state legislative districts brought action alleging unlawful vote dilution. Although not large enough in size to constitute a majority in a redrawn single-member district, the plaintiffs asserted that the current state legislative lines fragmented the black population in such a way that they were being denied the ability to "influence" elections. The district court, citing McNeil v. Springfield Park, dismissed the complaint on the grounds that the plaintiffs had failed to meet the first prong of Gingles. The Sixth Circuit reversed, holding that a minority group is not required to demonstrate that it would constitute a majority in a redrawn district to make out a successful vote dilution claim.31 The Sixth Circuit argued that in endorsing the totality-of-circumstances approach, the Senate Report "clearly indicates that [Section 2] . . . requires a case by case analysis by the Court, thus precluding a bright line test applicable under all circumstances" (slip opinion, p. 10). The district court ignored this directive, according to the Sixth Circuit,and employed a "mechanical 'point counting' requirement that the minority constitute a majority in a district before the court would exercise its overall judgment based upon the totality of the circumstances of the case" (slip opinion, p. 10). The Sixth Circuit accepted the plaintiffs' "influence" argument, favorably citing Karlan's reasoning (1989, p. 202): "To the extent that courts have read Gingles to elevate the ability to create a district with a majority black electorate into a threshold requirement for establishing liability in all vote dilution litigation, they have improperly applied one particular theory of liability to other distinct types of vote dilution" (slip opinion, p. 13, n. 7). In short, there is considerable disagreement about the proper role of the totality-of-circumstances test and the necessity and sufficiency of the three Gingles factors. An approach that perhaps comes close to the intent of Congress in amending Section 2 and the Supreme Court's decision in Gingles is one that allows the courts to view at least the first prong of the Gingles test as germane only in certain instances and that allows the three prongs to be sufficient in that circumstance. Surely there are instances in which one would wish to relax the first prong, such as in cases that do not involve districting (McDonald, 1989). As its legislative history makes clear, Section 2 applies to any racially discriminatory voting practice or procedure, not simply to dilutive districting plans. Therefore, such potentially dilutive devices as majority vote requirements are subject to challenge under Section 2 - and, in fact, the Justice Department has recently filed suit in Georgia challenging the state's majority vote requirement under Section 2. The evidence presented in this case is unlikely to rely solely on the

60


factors outlined in Gingles, and the requirement that the minority group be sufficiently large and geographically compact is obviously the least relevant of the three prongs. In these sorts of cases, the totality of the circumstances would seem to remain particularly relevant and the first prong of Gingles irrelevant.32 Nonetheless, when plaintiffs are in fact challenging at-large/multimember election systems and requesting single-member districting as a remedy, we think that all three prongs of Gingles are necessary for showing a violation of Section 2. In taking this position, we are persuaded by Justice Brennan's reasoning, cited earlier, that "unless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice" (Thornburg v. Gingles, 1986, p. 50). However, as we shall see in the next chapter, even the conclusion that all three prongs are necessary does not resolve all of the potential issues. For one thing, there remain some questions of interpretation - for example, about what constitutes a majority. For another, the first prong may not, in fact, be necessary if the Court is willing to require remedies that involve alternatives to the single-member district or if there has been intentional discrimination (see Chapter 5). As for sufficiency, it is our feeling that the Gingles three-pronged test places the focus on a set of relatively clear, objective criteria, creating a manageable standard with a list of critical factors that is both small and closed ended. By designating racially polarized voting as the keystone of a vote dilution challenge, the Court has constructed a standard that contains a "core" value. Thus, in the context of multimember districts, the three-pronged test sets out sufficient conditions for finding a violation of Section 2. Although the Gingles decision effectively resolved a number of the questions that the courts had confronted when considering a vote dilution claim, not all the conflict was settled by this decision (such as the discussion about the role of the totality-of-circumstances test in Section 2 claims makes clear). Subsequent litigation based on Section 2 has both further refined the standard outlined in Gingles and given rise to divergent opinions on some issues. This is the subject of the next chapter.

The vote dilution standard in the post-Gingles era: clarifications and complications in the lower courts

The Supreme Court's decision in Thornburg v. Gingles (1986) was an important victory for minority voting rights. Not only did the decision confirm that amended Section 2 eliminates the need to prove discriminatory intent in statutory vote dilution claims, but the three-part Gingles test developed by the Court also appears to simplify considerably the standard of proof to be applied in Section 2 districting challenges. As noted in Chapter 2, the Court created a three-pronged test for vote dilution in an at-large or multimember district challenge. To establish a violation, "a bloc voting majority must usually be able to defeat candidates supported by a politically cohesive, geographically insular minority group" (1986, p. 49). This requires that plaintiffs satisfy three conditions: First, the minority group must be . . . sufficiently large and geographically compact to constitute a majority of a single-member district. . . . Second, the minority group must be . . . politically cohesive. . . . Third, . . . the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate, (pp. 50-51) These three elements seemingly establish a straightforward, objective test for proving unlawful vote dilution. However, at least partially because the opinion rendered in Gingles included a complex web of pluralities, concurrences, and dissents, not all Section 2 issues were resolved. The confusion in Gingles has also spawned considerable confusion in subsequent interpretations; a few points of contention have been resolved, but there are numerous conflicting views and inconsistent lower court decisions. In this chapter we discuss the continuing evolution of the vote dilution standard encompassed in the amended Section 2 of the Voting Rights Act, examining how the lower courts have applied the three Gingles factors (and pointing out when the courts have disagreed on the correct standard to use). Each of the three Gingles factors will be considered separately.1

61

62


What constitutes a "sufficiently large and geographically compact" minority group? The first prong of Gingles has led the lower courts to grapple with several questions. First, what constitutes a "sufficiently large" minority population that is, what is the percentage of minority population needed in a single-member district? Second, what does "geographically compact" mean? Third, can two or more minority groups be combined to meet this first prong? What does it mean to constitute the ' 'majority'' of a single-member district? The Supreme Court in Gingles required plaintiffs to prove that they were large enough to constitute a "majority" in a single-member district.2 However, the Court did not specify what was meant by the term majority: Are plaintiffs required to constitute a majority of the proposed district's total population or voting-age population? Or perhaps plaintiffs must show that they are sufficiently large to be able to comprise a majority of the registered voters or even a majority of the actual voters at the polls on election day? Recent court opinions have been relatively uniform in assuming that majority used in this context means that the minority group must demonstrate that it can form a majority of the voting-age population in a single-member district. For instance, in McNeil v. Springfield Park District (1988), the Seventh Circuit stated that the first prong of Gingles "roughly measures minority voters' potential to elect candidates of their choice. Because only minorities of voting age can affect this potential, it is logical to assume that the Court intended the majority requirement to mean a voting age majority" (p. 945). Therefore, although the plaintiffs in McNeil were able to draw a single-member district that was 50.4 percent black in total population, because the proposed district was only 43.7 percent black in voting-age population, the court held that the plaintiffs had failed to meet the first prong of Gingles. The other circuits have tended to follow the Seventh Circuit's lead on this issue. For example, although the Fourth Circuit has issued no appellate court opinions that directly confront this issue, a recent district court opinion (McDaniels v. Mehfoud, 1988) was explicit in its requirement that plaintiffs demonstrate that they could comprise a majority of the voting-age population in a single-member district (and the court cited McNeil v. Springfield Park District to support this contention). Earlier decisions rendered in the Fifth Circuit discuss only the total minority populations of the plaintiff-proposed districts (Campos v. City of Baytown, 1988; LULAC v. Midland Independent School District, 1987), but because combined minority populations in excess of 70 percent were

The vote dilution standard in the /? PBW

t0

obtain

~ bi

and Pww = ml + bv Thus, we can use the precinct-level data on observed voting behavior and known minority percentages to estimate the unobservable variables PBW and F w . Similarly, if we regress P B (l) on x(l\ the result will be PWB

=

m 2 + b2

and PBB

=

b 2.

(We could alternatively do a regression using the proportion of registered voters who are black.11) Let us specify a new notation such that P ww

=

Pww'\Pww ~*~ PWB)

P BB

=

PBB'^PBB

P WB ~ P BW

=

PWBI\PWW PBWI\PBB

~*~ PBW) ~^~ *WB) ~^~ PBW)

These primed variables, which we obtain by combining the information derived from the two regression equations (PW(i) o n x(l) a n d PB({) o n x(u)t0 obtain values

88


of Pww, PBB, and so forth, now give us the estimated white vote for white candidates as a proportion of the total white vote, the estimated black vote for black candidates as a proportion of the total black vote, and so on. The unprimed variables express support for candidates as a proportion of the registrants; the primed variables express support for candidates as a proportion of the voters. It is the latter that are of direct interest; we estimate the former in order to obtain the latter. Of the four primed variables, it is P'ww and P'BB in which the analyst is most interested, as these denote the proportion of votes that go to candidates of the voters' own race. The following additional notation will be of use later: P'w

= PW/(PW + PB) and P'B = PB/(PW + PB).

These "primed" variables give us the white (black) share of the actual vote. Of course, P'w = 1 - P'B. Estimating turnout Let Tw TB

= proportion of white registered voters who vote (i.e., white turnout as a proportion of white registered voters) = proportion of black registered voters who vote (i.e., black turnout as a proportion of black registered voters)

and T

= the proportion of registered voters who vote.

The two-equation estimating procedure allows us to estimate (differential) turnout among white and black registered voters,12 as *w

=

-*S

=

*WB

+ Pww

and PBB +

PB\V-

Commonsense checks on estimates of bloc voting Comparing the results of homogeneous precinct analysis and ecological regression The methods of homogeneous case analysis and ecological regression each have advantages and disadvantages. The principal advantages of homogeneous case analysis are its simplicity and the fact that it is based directly on the behavior of voters of a given race, thus requiring no statistical inference. The principal

Defining and measuring racially polarized voting

89

disadvantages are that it may not always be possible to use it because of the absence of sufficiently homogeneous precincts and it does not use all the data that are available. The principal advantage of ecological regression is that it uses the information from all the precincts, both those that are racially homogeneous and those that are racially mixed. The principal disadvantages are the possibility of errors owing to ecological inference and the fact that trial judges may not be familiar with it other than from the discussion in Gingles and other cases. Because each of these methods has pluses and minuses, a standard procedure is to use them both. By comparing the actual results in homogeneous precincts with the estimates of voting derived from the double-equation ecological regression method, one can customarily ascertain the extent (if any) to which voters of a given race as a whole (including voters of that race living in racially mixed precincts) vote differently from voters of that same race in racially homogeneous precincts. If voters of a given race in nonhomogeneous precincts vote differently from voters of that race in homogeneous precincts, the estimates derived from ecological regression will differ from the voting behavior observed in the homogeneous precincts.13 The homogeneous case estimates often appear to reflect less polarization than the ecological regression estimates do because the precincts used are not actually 100 percent racially homogeneous. In practice, however, if the homogeneous precincts are close to 100 percent of one race, then in our experience, the differences between the estimates derived from ecological regression and the observed results in homogeneous precincts are likely to be minimal (see, e.g., Grofman, Migalski, and Noviello, 1985). Both homogeneous case analysis and ecological regression methods should be used if possible, as each compensates for the potential flaws in the other. Most important, when combined with homogeneous case analysis, ecological regression analysis normally allows us to avoid the "ecological fallacy" (Robinson, 1950), one common form of which is the error of attributing the average behavior of voters in a given geographic area (ecological unit) to all voters in that area - here, assuming that all voters in a given precinct vote alike. Note that even though one uses the value of the regression coefficient in a precinct that is racially homogeneous to estimate the voting behavior of that racial grouping, the value in question is actually an estimate of the average voting behavior of all members of that group, as it is based on information from all of the precincts. Even so, we do not regard it as necessary to do ecological regressions if a very clear pattern of polarization can be shown by comparing votes in precincts that are overwhelmingly composed of minority voters with votes in precincts that are preponderantly white/Anglo, especially if a substantial number of voters reside in homogeneous or nearly homogeneous precincts. Homogeneous precinct analysis is considerably less costly and less time-consuming than using regres-

90

Minority Representation

and Voting

Equality

sion methods, so to require the latter to prove vote dilution might place an undue and unnecessary burden on minority plaintiffs. We briefly illustrate the application of our methods for determining levels of racial polarization to data used in Gingles. In a 1982 Senate election in Mecklenburg County, North Carolina, the values for the sole black candidate (Mr. Polk) were mx bY m2 b2

= .28 = .03 = —.31 = .45

Hence, PBW p

= b, = .03

ww = m\

+ b\ = -31

= m2 + b2 = .14

PWB

PBB

Hence

= t>2 = -45

06 = whs p.

J*

WB

31

~ .14 + .31 " = -94

The regression estimate for the proportion of the black vote that went to the black candidate is .94; the homogeneous precinct analysis generated a value of .86. The regression estimate for the proportion of white vote that went to the black candidate was .31; the homogeneous precinct analysis was .30.14 It is apparent that homogeneous and regression estimates are very similar - indeed identical in their first significant digit. As expected, the regression estimate was marginally higher than the homogeneous precinct estimate, as the "homogeneous" precincts (90 percent or more black registered voters) contain some nonblack voters.


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Measures of goodness of fit for ecological regression: the coefficient correlation Correlation coefficient. When ecological regression is used, statistical measures can be generated for the likelihood that an observed linear relationship between candidate support and the racial composition of precincts is due to chance. The single most important measure is the correlation coefficient (Pearson's r). It tells us the extent to which data points fall on a straight line. As noted previously, both the trial court in Gingles and the Supreme Court accepted the view of the plaintiffs' expert (Grofman) that "correlations above an absolute value of .5 are relatively rare and correlations above .9 extremely rare" {Gingles v. Edmisten, 1984, p. 368, n. 30). Statistical significance. An analyst can also look at the statistical significance of the correlation coefficient. This measure tells us the likelihood that a pattern that looks as much like a straight line as that found in the data could have occurred by chance alone. If, for a given election, the observed value of r has a statistical significance of .01 or less, that is, a likelihood of occurring by chance alone of one in one hundred or less, courts have taken this to be evidence that race was a factor in that election.15 The commonsense (interocular) test. There is no substitute for careful visual inspection of the data in graphical form, that is, a plot of votes for the minority candidates against percentage minority in the precinct. In a number of recent cases the standard methods of ecological regression and homogeneous precinct analysis have been subject to attack on a variety of statistical grounds, by expert witnesses testifying for defendant jurisdictions. In several of those cases the courts have responded to these statistical criticisms by taking the commonsense view that the "interocular" test is often the best one - that is, if when one looks at tables or graphs showing the relevant election data, the pattern of polarization jumps up and hits one between the eyes, then there is polarization, esoteric quibbles to the contrary notwithstanding. This view was perhaps expressed most directly by a federal district court in Jeffers v. Clinton (1989).16 In inspecting the data visually one can also look at which precincts (if any) give rise to "outliers" from the best-fitting regression line. Sometimes knowing where the predictions of ecological regression fit the data least well allows a locally knowledgeable informant to suggest reasons for cross-precinct variations in predictive fit. (For example, if census data are being used to define the independent variable, there may be particular precincts that have

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changed dramatically in their racial composition since the time of the census.) The fact that some precincts are outliers to a general pattern of polarization does not invalidate the finding that there is a pattern of polarization, as it is the "average" behavior of groups (in the relevant elections) that is most relevant.17 Comparison with single-equation results. The single-equation ecological regression involves regression percent of the vote for the (minority) candidate(s) on minority registration or population. It is useful to generate single-equation estimates of P'ww and P'BB as checks on the estimates of these quantities from the double-equation method, but one must recognize that the single-equation approach is less reliable than the double-equation approach. Nonetheless, the single-equation approach allows us to generate a useful correlation to use in showing the degree to which the data can be characterized by a linear relationship between support for minority candidates and minority percentages in the electorate. Checks against known data. One of the most important commonsense checks of estimates derived from homogeneous precinct or ecological regression analysis is a comparison of estimates with known jurisdictionwide quantities such as total turnout or the actual vote share of the minority candidate(s). One must keep in mind, of course, that the match between estimated values and actual values is never perfect and that the degree of fit is not uniform across all geographic areas. Nonetheless, if at the jurisdictionwide level, estimates of known values show a discrepancy of more than, say, 10 percent, there is reason to scrutinize the results with special care. Existence of a pattern The existence of some crossover voting does not in itself show the absence of legally significant polarization. A few instances of even majority-white support for some black candidates cannot outweigh a general pattern of white unwillingness to support black candidates who are the clear choice of black voters, nor can the fact that some black voters have voted for white candidates (especially incumbents). As the court stated in Gingles: It is "the usual predictability of the majority's success [that] distinguishes structural dilution from the mere loss of an occasional election" (1986, p. 51). Normally one would like to see evidence of polarization/cohesion in at least three elections for the office under challenge in which there were viable, minority-supported candidates. However, if the nature of the election scheme tends to discourage minority candidacies, this may be impossible. In such instances,


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it is necessary to look at elections exogenous to those at issue in the litigation. Just which elections to consider has been at issue in recent federal court cases (see Chapter 3). Problems of data availability Turnout versus registration versus CVAP versus VAP versus population as the independent variable Homogeneous precinct analyses must be interpreted with some care if the data used to define homogeneity are not the percentage of minority voters in a precinct. The percentage of minority voters in the precinct can be much lower than the minority population if eligibility rates, determined by voting age and citizenship, or registration or turnout rates are significantly different for minority and nonminority populations. If the percentage of minority population in an ostensibly overwhelmingly minority precinct overstates the percentage of minority voters in that precinct, then - if one assumes that minority voters vote at least as heavily for the minority candidate as do nonminority voters - it must also be true that the level of support for minority candidates in such precincts understates the true level of minority support for minority candidates. For example, if black voter support for the black candidate is at the 90 percent level and white voter support for the black candidate is only at the 20 percent level, and if only 50 percent of black registrants but 90 percent of white registrants vote, then a "homogeneous" precinct that is 90 percent black in registration will cast only (.45 X .9 + .09 X .2) / (.45 + .09) = 78.3% of its votes for the black candidate. Thus, in this instance, simply assuming that the vote in the homogeneous precinct tells us the level of black support for the black candidate would significantly underestimate the true level of black support for the black candidate (78.3 percent compared with 90 percent). Special data problems in dealing with Hispanic populations Because of the high proportion of Hispanic noncitizens in some areas, in general, one would prefer to do regression analyses using Spanish-surname registration data,18 or if they are not available, with (estimated) citizen voting-age population data broken down by race and ethnicity rather than only population or even voting-age population data. If only voting-age population data are available and if it is known that the area in question has a high proportion of noncitizens, then one must be especially careful in interpreting the results of ecological

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regressions, as the independent variable may be a poor indicator of the eligible electorate. In such situations, homogeneous precinct analysis may be especially useful - if there are precincts that are very highly homogeneous. (A precinct that is almost 100 percent minority in terms of voting-age population is still very heavily minority in registration and turnout.) In this special case, homogeneous precinct analysis may be more informative than ecological regression is, although even in this situation we still recommend using and comparing the results of both methods. Moreover, as noted previously, to the extent that homogeneous minority precincts contain an admixture of nonminority population, the overall support in such precincts given to minority candidates understates the support being given to such candidates by minority voters.

Problems in matching census data to precinct boundaries As a result of extensive efforts by the Bureau of the Census to obtain geographically based descriptions of voting precincts from the states, the 1990 TIGER Files normally allow analysts to meld census data (based on census units such as census blocks or what are called VTDs) and electoral data (based on voting precincts) into one database. Previously, analysts often had to spend a great deal of time and effort looking at detailed maps in order to match census and electoral geography. Unfortunately, even in the 1990s, the problem of census-to-precinct matchings is unlikely to disappear completely. First, in large cities there may be voting precincts that split census blocks (the census block is the smallest unit of census geography). This requires the analyst to combine voting precincts to create new "superprecincts" in order to mesh data at the two levels or somehow to estimate the census characteristics of portions of a block. Second, analysis is sometimes done at the tract level, either for convenience in a jurisdiction with a large number of census blocks or because there are some data available only at the tract level. But there may be some tracts that split precinct lines. Here, unless one is able to solve the problem by going back to block-level information, one must estimate the census characteristics of a precinct by combining information about each of the tracts in which it is located or use only those precincts that are coterminous with tracts. Moreover, even if neither of these problems is present in 1991, as precinct lines change over the course of the decade (or if one needs to match current precinct lines with those of earlier periods), it is likely that such problems will emerge. Still another type of matching problem is simply knowing how to translate old precinct geography into current districts. Sometimes tracking down old precinct boundaries is not easy. In short, some map-reading skills are still necessary.


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A limited number of homogeneous precincts Although it is desirable to have as many homogeneous precincts as possible in order to observe directly the voting patterns of different groups, there is no minimum number of such precincts. In our own expert-witness testimony, we have reported homogeneous precinct data even in situations in which there was only one homogeneous precinct. The purpose of homogeneous case analysis is to provide direct and irrefutable evidence regarding how members of a given race in a given precinct have voted. As previously noted, the validity of the claim that the voting behavior in such homogeneous precincts is not "typical" of the group can be directly examined by comparing the behavior in the homogeneous precincts with the estimate of the "average" behavior of the group derived from ecological regression and by other of the checks described in this chapter. The absence of homogeneous precincts for one group Sometimes there are no precincts with over 90 percent minority voters, and there may even be no precincts with over 80 percent minority voters; but it is rare that there are no homogeneous white/Anglo precincts. In instances in which there are homogeneous precincts for only one group, an analyst may use what one of us calls mixed-case analysis (Grofman and Noviello, 1983). The basic idea is simple. One can use the homogeneous precincts of the one group to derive an estimate of how the members of that group vote and then substitute that estimate into the most homogeneous precincts of the other group, apportioning the still unexplained votes among the members of the other group. For example, if we observe that in very homogeneous white precincts, only 20 percent of the votes went to the black candidate, we can take P'WB to be no more than .20. If the most heavily black precinct is 60 percent black and it gives 50 percent of its vote to the black candidate, we can assume that no more than 8 percent of the vote in the precinct (.20 X 40) is from whites voting for the black candidate. That leaves forty-two percentage points of support for the black candidate that must be coming from the 60 percent of the precinct that is black. Hence, black support for the black candidate is estimated to be at least 70 percent (42/60). No homogeneous precincts for either group In jurisdictions with only a few precincts, there may be no precincts that are overwhelmingly minority or nonminority. In such instances, one might wish to use what one of us (in testimony in Gomez v. City ofWatsonville, 1988) referred

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to as a "most different case analysis," comparing the level of support for minority candidates in the most heavily minority and the most heavily nonminority precincts. Though one must recognize that the nonhomogeneity of the precincts masks the true magnitude of racial differences in voting, such a comparison may nonetheless yield usable inferences about differences in voting between groups. In Gomez, the court accepted testimony about racial bloc voting based in part on such a comparison.19

Special issues Estimates of Spanish-origin population Estimating Spanish-origin registration. As previously noted, in doing ecological regressions to estimate Hispanic voting behavior, one would prefer to have the percentage of Spanish-surnamed registrants/voters as the independent variable, rather than simply the percentage Hispanic of the voting-age population. To determine the percentage of Spanish-surnamed registrants/voters, one can use the Census Bureau's list of Spanish surnames, as the accuracy of that list has been accepted by numerous courts (e.g., in Garza). Of course, the match between Spanish surnames and Spanish origin (i.e., persons who self-identify themselves as such on the census forms) is not perfect. There can be both "Type I " and "Type II" errors - that is, individuals with Spanish surnames who are not of Spanish origin and individuals without Spanish surnames who are of Spanish origin. The most detailed analysis of the correspondence between Spanish surname and Spanish origin was done by the demographer William O'Hare in connection with his testimony in Garza. With the help of the Justice Department, O'Hare obtained a special census run that matched, at the census tract level, the Spanishsurname list with the names of those known from their census returns to be Spanish-origin citizens of voting age living in Los Angeles County. In this fashion, he was able to specify tract-specific Type I and Type II error rates. He then used corrections in the Spanish-surname percentages obtained by using the census identification of the names of voting-age citizens as the basis for an estimate of Spanish-origin registration. Regressions run with Spanish-surname registration as the independent variable and those run with O'Hare's estimate of Spanish-origin registration differed minimally. Differences in the derived estimates of parameters such as F ' w were rarely above three percentage points and usually much smaller. Differences in correlations were virtually nonexistent. Based on O'Hare's findings, it is almost certainly unnecessary to attempt to develop an estimated Spanish-origin registration figure for purposes of regres-


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sion analysis; for that purpose Spanish-surname registration data usually are sufficient. We should note, however, that O'Hare did find that in heavily Hispanic areas, the Spanish-surname percentage marginally underestimated the Spanish-origin percentage. Estimating Spanish-origin citizen voting-age population. If Spanish-surname registration data are not available, the next-best independent variable for purposes of bloc-voting analysis is Spanish-origin citizen voting-age population (CVAP) data. Unfortunately, at the levels of census geography needed to construct precinct-level data files, such data have not been released until several years after the census is conducted. Thus, during the period immediately after a decennial census, if Spanish-surname registration data are not available, it may be necessary to estimate Spanish-origin CVAP by combining current census data on Spanish-origin voting-age population with information on rates of citizenship within Spanish-origin and non-Spanish-origin voting-age populations obtained from earlier periods, or by applying jurisdictionwide citizenship rates to lowerlevel units. Because citizenship rates among Hispanics may vary considerably within a given jurisdiction, if census data on Spanish-origin CVAP are not available, estimating Spanish-origin CVAP must be done with care. Party primaries If there are primaries, it is important to look at patterns of polarization in them. In many states the victor in the primary of the preponderant party in the state is all but assured victory in the general election.20 For Hispanics, Spanishsurname matching usually enables one to determine the Hispanic proportion of the registrants of a given party in those states that maintain party registration lists. If registration data by race and party are not available for blacks (as is usually the case, except in the six states where such data are kept separately for blacks and whites21), then one must estimate the black proportion of the party registrants/primary-voting electorate if one wishes to analyze election returns from partisan primaries to determine racial voting patterns. Given known patterns of party identification, blacks are overrepresented in Democratic primaries relative to their overall numbers and are virtually unrepresented in Republican primaries. Hispanics, too, are overrepresented in Democratic primaries relative to their overall numbers of eligible voters, although usually not to the same extent as blacks are. Multimember districts without numbered places In multimember elections without a numbered place system there may be more than one candidate who is a minority candidate of choice. Here one looks to

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see whether minority-supported candidates would be elected if only nonminority voters were voting. Thus, for example, in a situation with only black and white voters and a single black candidate, if white voters (on average) ranked the black candidate fifth and black voters (on average) ranked that candidate first (based on the number of votes for the various candidates), that would give rise to racially polarized voting if there were four or fewer candidates being elected in the multimember district, but not otherwise. Racial polarization can occur even if white voters vote for some minority candidates, as long as they are not as willing to elect as many minority candidates as would be the minority community.22 Problems in interpreting racial polarization Overstating or understating the importance of the correlation coefficient It is important not to confuse a high correlation with a high magnitude of political cohesion or with a lack of nonminority support for minority candidates. A high r value merely indicates that the observed relationship between race and voting patterns is sufficiently consistent across precincts (and linear in nature) that it is not likely to have been a matter of chance. For example, in a singlemember district election with two candidates, one black and one white, if in each precinct 65 percent of black voters and 63 percent of the white voters voted for the black candidate, one would obtain a perfect linear fit (r = 1.00), even though there was almost no difference in the voting patterns of whites and blacks. The magnitude of differences is best judged from the slope and intercept of the regression line. Thus, looking at correlations is not a substitute for looking at estimates of P'ww an

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