Joining Forces: Whether § 2 of the VRA Permits Aggregation to Create Majority-Minority Coalition Districts

BACKGROUND

Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups identified in the VRA. In 1982, Congress amended § 2 to allow a plaintiff to establish a violation of the Section if the evidence established by a “totality of the circumstance of the local election process” that the standard, practice or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process and to elect representatives of their choice. In effect, this empowered voters to challenge district lines drawn to either dilute or pack minority voters to decrease their influence on the political process.

In its first case following the passage of the 1982 amendments, the Supreme Court explained in Thornburg v. Gingles that the “essence of the Section 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.”

The Court in Gingles held the following:

  • That the use of multimember districts generally will not impede the ability of minority voters to elect representatives unless: (1) the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the minority group is politically cohesive; and (3) the white majority group votes sufficiently as a bloc to enable it to usually defeat the minority’s preferred candidate.
  • That a showing that a significant number of minority group members usually vote for the same candidates is one way of proving the requisite political cohesiveness.
  • A white bloc vote that normally will defeat the combined strength of minority support plus white “crossover” votes rises to the level of legally significant white bloc voting.
  • That the “clearly erroneous test” of Rule 52(a) of the Federal Rules of Civil Procedure is the appropriate standard of appellate review for a finding of vote dilution.

Despite these findings, the Court did not consider whether § 2 permits a claim brought by a minority group that is not sufficiently large and compact enough to constitute a majority in a single-member district.

In Growe v. Emison, Johnson v. DeGrandy, and LULAC v. Perry, the Supreme Court continued to sidestep the question by assuming, without deciding, that it is possible to state a § 2 claim for a racial group that makes up less than 50% of the population.

In Bartlett v. Strickland, the Court considered the “minimum-size” question under the first requirement of Gingles. It made clear that the holding only addressed the issue as it pertains to crossover districts, not coalition districts. In crossover districts, minority voters make up less than a majority of the voting population, but the minority population, at least potentially, is large enough to elect the candidate of its choice with the help of voters who are members of the majority and who cross over to support the minority’s preferred candidate. Coalition-district claims, on the other hand, involve two minority groups that form a coalition to elect the candidate of the coalition’s choice. The Court held that crossover districts are not protected under § 2.

THE ISSUE

Pursuant to § 2 of the Voting Rights Act, is the majority-minority requirement under the first Gingles precondition satisfied when minorities from more than one racial or ethnic group, joined together, constitute a majority of the citizen voting age population?

THE SPLIT

The 5th Circuit has been most explicit in permitting coalition districts. In Campos v. City of Baytown, the court held that minority voters can be aggregated so that “together, they are of such numbers residing geographically so as to constitute a majority in a single member district, they cross the Gingles threshold as potentially disadvantaged voters.” Still, the plaintiffs must prove the minorities actually vote together in a cohesive manner. The court determined that the standard for proving cohesion is whether the minority group together votes in a cohesive manner for the minority candidate.

Following Campos, the 2nd Circuit, 9th Circuit, and 11th Circuit have tacitly permitted coalition districts, though not as explicitly as the 5th Circuit. In both Badillo v. City of Stockton and Concerned Citizens of Hardee County v. Hardee County Board of Commissioners, the courts assumed it was acceptable to aggregate voters of different minority groups, but the plaintiffs in both cases failed to prove the requisite political cohesion necessary to satisfy the second Gingles requirement. In Bridgeport Coalition for Fair Representation v. City of Bridgeport, the 2nd Circuit assumed the coalition districts were covered under § 2 and that requisite political cohesion was proven to satisfy the elements of Gingles.

Deviating from the other circuits, the 6th Circuit refused to extend § 2 coverage to a minority group that includes more than one race or ethnicity. In Nixon v. Kent County, the court held that if Congress wanted to protect a minority group that was composed of more than one race or ethnicity, it would have used more words in the plural form in § 2, such as “protected classes” rather than “protected class.”

LOOKING FORWARD

Recently, the Supreme Court seems more willing to take on cases dealing with issues of independent redistricting commissions and partisan gerrymandering. It also has been willing to take on cases regarding § 5 of the Voting Rights Act, as well as the application of the Gingles factors in § 2 claims. While the Court has not yet signaled a willingness to take on the issue of coalition districts, the number of cases arising from the use of African-American and Hispanic voters to create the majority-minority districts will likely continue to increase as the Hispanic population continues to grow. If the Supreme Court does not take up the issue, there may be an increase in coalition districts drawn following the 2020 Census.