In the post below, Lyle offers a preview of tomorrow’s argument in Bartlett v. Strickland (07-689), a voting rights case from North Carolina. For more on the case, including the briefs at both the certiorari and merits stage, visit the case page on SCOTUSwiki.

Federal voting rights law allows minority voters to pursue claims in court that the political strength they could wield has been diluted by some law or election regulation. The Court will explore in Bartlett v. Strickland the rights that the law protects.

Background

In American politics, it has been true – from the very beginning – that coalitions can be built to win elections. Indeed, U.S. political parties have always been coalitions. People who share political aspirations get together to pool their strength, with the aim of electing the candidates they prefer — the ones they think most likely to work for them within the government. In modern America, minority voters have greater political influence when they form a coalition with others, because they may not have sufficient electoral power on their own to prevail.

When Congress passed the Voting Rights Act 43 years ago, it included a provision – Section 2 – that assures minority voters that the political process will be “open equally” to minority voters, as members of a group protected against discrimination. It does not guarantee a bloc of minority voters that they will always get their preferred candidate elected, but it assures them against the denial of that opportunity. Such a denial has come to be known as “vote dilution” – a lessened opportunity, because of an election law or practice, for minorities to elect the candidates of their choice. (Vote dilution does not have to be intentional discrimination; it can be the practical effect of a law or practice.)

The phrase “vote dilution” does not appear in Section 2, but it has been part of the vocabulary of equal voting rights since the Supreme Court decided Thornburg v. Gingles in 1986 – still the leading case on the interpretation of Section 2. Among other parts of that ruling, the Court said that a dilution claim could be made by minority voters only if they were a large enough group in their community to “constitute a majority” in a district that elects a single public official.

In the 22 years since Gingles was decided, the Supreme Court has never spelled out what “majority” means. It left that issue open in Gingles itself, and in five later decisions on Section 2’s scope. Lower courts are divided on the issue. Some have ruled that a “majority” only means a mathematical, literal majority – 50-plus percent of the population. Others have said that it can mean a coalition, including minority voters, that has the strength to control election outcomes.

Resolving that conflict is the task the Supreme Court has taken on in Bartlett v. Strickland (07-689). The question comes up in the context of drawing election districts – the process of “redistricting” that occurs after every ten-year national and state Census. In that setting, vote dilution can occur by packing too many minority voters into a single district, isolating them so that they can’t influence outcomes elsewhere, or by dispersing them among several districts so that they are not influential in any of them.

The appeal asks the Court to lay down the rule that it is a valid Section 5 claim of vote dilution for minority voters, even if they do not have an actual 50-plus majority in a district, if they have been able to form a coalition with non-minorities sufficient to elect the candidates that the coalition favors, and the coalition’s strength is diluted by a redistricting plan. If the Court does so, it would then be a violation of Section 2 to avoid creating a “coalition district” (sometimes called a “crossover district” or an “influence district”) if that can be done by recognizing political reality, or to dismantle an existing district that has been functioning as a “coalition district.”

The lawsuit involves the legality, under Section 2, of District 18 in the North Carolina House of Representatives, a district created by the legislature in 2003 to include parts of New Hanover and Pender Counties. Blacks make up 39.36 percent of the voting age population in District 18, and Democrats hold a 59-41 percent advantage in registered voters. The winner of the Democratic primary thus consistently wins the general election. The legislature created District 18 as a “coalition district,” believing that doing so was necessary to avoid a Section 2 vote dilution challenge by black voters. With only limited crossover voting by whites, District 18’s black voters have repeatedly nominated and elected a black state representative – in fact, in each election since 1992.

In May 2004, Pender County and its county commissioners filed a lawsuit in state court, challenging House District 18 for having split up Pender County. The trial court ruled in favor of the District, finding the configuration was necessary to avoid diluting the votes of blacks in this “coalition district.” The North Carolina Supreme Court overturned that ruling, striking down District 18 as drawn. Section 2, that court said, requires a “bright-line rule” that a minority group has an actual majority – 50-plus percent – and District 18 had only a 39.36 percent black population. That decision was appealed to the Supreme Court last Nov. 21, and the Court granted review on Feb, 17.

Petition for Certiorari

Gary Bartlett, executive director of the state Board of Elections, joined by other state officials, sought Supreme Court review on a single question: “Whether a racial minority group that constitutes less than 50 % of a proposed district’s population can state a vote dilution claim under Section 2 of the Voting Rights Act, 42 U.S.C. sec. 1973.” The petition has two major points: first, the question at issue has been left open on five occasions by the Supreme Court and, as a result, there is confusion and division among lower courts, and, second, a new round of redistricting will follow the 2010 Census, and this case “likely stands as the last opportunity for the Court to resolve this split” before new district boundaries are drawn for Congress, state legislatures and other governing bodies. If the issue is not resolved now, the petition contended, “election districts will be drawn throughout the country with different standards used in different circuits.” And a decision now may help to head off having to drawn new districts more than once after that Census.

The appeal is supported by other states, the League of Women Voters, the NAACP and black voters, and by two state legislators, in New York and Ohio. A significant historical fact is put before the Court in the NAACP amicus brief: it used to be that minority voters would have to have 65 percent strength to have a real chance to choose a candidate of their choice, because of highly polarized voting along racial lines, but in recent years, such polarized voting has decreased in some places, making it possible for minorities who do not have a numerical majority to form coalitions with others and have the opportunity to prevail.

Opposing review, Pender County, N.C., officials and voters contended that the state Supreme Court decision was based, in significant part, upon its view that state law barred the division of counties. Thus, there was an adequate state law rationale for striking down District 18, and thus the Court should leave that decision intact. The officials contend that Congress has been well aware of the 50-plus rule as adopted in most lower courts, and has done nothing to amend Section 2 to counteract that trend.

Analysis

Three members of the Supreme Court – Justices Ruth Bader Ginsburg, David H. Souter and John Paul Stevens – have said that they do not support the 50-plus rule as the only measure of majority of a majority for purposes of a Section 2 vote-dilution claim. That is a fairly strong starting point for the challengers to the literal, mathematical approach. But perhaps an even stronger point, on their side, is that the Supreme Court has said that the 50-plus rule is not appropriate in deciding cases under another part of the Voting Rights Act of 1965 – its Section 5, requiring a number of states and other jurisdictions that formerly discriminating in voting to get pre-clearance in Washington for any changes they may in election laws or procedures (including redistricting). The Court in the 2003 decision in Georgia v. Ashcroft cited studies that “the most effective way to maximize minority voting strength” may be to create “coalition districts.”

One complicating factor, perhaps for conservative Justices, is the argument that Pender County has made that adopting a less-than-majority rule for minority voters under Section 2 would be to create a race-bases “special status” for those voters. The Voting Rights Act, the argument asserted, does not seek to assure minority voters of winning, but only a chance to compete. Even if the 50-plus rule were to be upheld, they added, minority voters would still be able to form coalitions with some members of a district’s majority group to elect candidates that all of them prefer.

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