This essay analyzes the opinions in the 2013 Supreme Court case Shelby County, Alabama v. Holder to determine how legal actors should assess the continued necessity of legal safeguards and whether or not their repeal is advisable—specifically with concern to those safeguards that protect minority voting rights. It suggests that legal actors must look beyond perceived increases in equality when deciding to repeal a legal safeguard, and it uses Justice Ginsberg’s dissenting opinion to establish three criteria that legal actors should consider before repealing a legal safeguard: if the safeguard currently serves a protective function, if the damage from repealing the safeguard would be hard to repair, and if the political climate provides incentives to violate the right that the safeguard protects. The essay then applies these criteria to the current debate over the necessity of laws safeguarding majority-minority voting districts.
Legal safeguards are laws that work to ensure that all Americans have access to the same rights and opportunities. In the last century, legal safeguards have helped racial minorities better navigate the explicit and institutionalized exclusion they face as non-white citizens. The Voting Rights Act of 1965 has specifically helped to safeguard minorities’ voting rights. However, the 2013 Supreme Court case Shelby County Alabama v. Holder critiqued this act and called into question the continued necessity of protecting these voting rights. As the repeal of a voting safeguard in this ruling ultimately increased racialized disenfranchisement in America, the question arises as to how legal actors should assess the necessity of legal safeguards and whether or not their repeal is advisable. This essay uses the example of Shelby County Alabama v. Holder to argue that when determining whether or not a legal safeguard should be repealed, legal actors should look beyond evidence of improved equality. Drawing from Justice Ginsberg’s dissent in this case, this essay suggests that legal actors should instead consider three essential criteria: whether the safeguard is currently protecting against discrimination, whether the potential damage of repealing the safeguard would be hard to prove and repair, and whether the political climate incentivizes violating the rights that a safeguard protects against. Using these criteria, this essay proceeds to engage in the current debate over the necessity of legally safeguarding minority voting rights by mandating majority-minority voting districts, and ultimately argues that this mandate should not be repealed. Scholarly work that discusses how legal actors should assess legal safeguards is hard to come by. But the plentiful work demonstrating flagrant racial discrimination in America suggests that taking on the task of establishing these assessment criteria is necessary. This essay and its conclusions have implications for the future assessment of all safeguard policies as well as how to best build and maintain equality in America.
THE CASE: VOTING RIGHTS AND SHELBY COUNTY ALABAMA V. HOLDER
In Shelby County Alabama v. Holder the Supreme Court judged the constitutionality of §4 of the 1965 Voting Rights Act. The Voting Rights Act of 1965 assures that no citizen is denied the right to vote based on their race. Specifically, §2 of this act names racial disenfranchisement unconstitutional by banning “any ‘standard, practice, or procedure’ that ‘results in a denial or abridgement of the right of any citizen… to vote on account of race or color.’” However, §4 of the VRA takes this decree a step further. Section 4 contains a coverage formula that requires certain states with a history of racialized disenfranchisement to gain preclearance from the Department of Justice before enacting new voting laws. This section thus legally safeguards racial minorities’ voting rights. In 1965, the preclearance requirement for the states named in §4 was given a 5-year expiration date. Yet, since then, the VRA has been reauthorized several times without this requirement ever being nullified. The constitutionality of this clause—as it relates to equal treatment of American states on one hand and American citizens on the other—was assessed in the 2013 Supreme Court case, Shelby County Alabama v. Holder.
THE OPINIONS: ROBERTS’ MAJORITY AND GINSBERG’S DISSENT
In Holder, Justice Roberts wrote the majority opinion, which named §4 unconstitutional and outdated, and called for the repeal of this legal safeguard. In his opinion, Roberts claimed that §4 was unconstitutional and should be repealed because it opposed the principle of state sovereignty to control elections, and especially violated equal sovereignty by singling out certain states for the preclearance requirement. However, Roberts’ opinion more emphatically advocated for the repeal of §4 on the grounds that it was no longer relevant because of improvements in equal voting participation. For instance, Roberts noted that when the VRA was authored, §4 was justified by explicit and persistent racial disenfranchisement. The states covered in §4 were those that had used voter registration tests and also had below average voting rates in the 1964 presidential election. However, Roberts advocated that in current times, this legal safeguard was no longer necessary to prevent racialized disenfranchisement. Admonishing the use of outdated evidence to support §4, Roberts stated, “Nearly 50 years later, things have changed dramatically…‘voter turnout and registration rates’ in covered jurisdictions ‘now approach parity. Blatantly discriminatory evasions of federal decrees are rare…’” Roberts thus promoted that because of improvements in voting equality, §4 was no longer needed to protect against disenfranchisement. Justice Ginsberg, however, did not agree.
In her dissenting opinion, Justice Ginsberg looked outside improvements in equality to promote that maintaining §4 as a legal safeguard was essential. Her reasoning can be broken down into three parts which together refute Roberts’ opinion and can be seen as three criteria that legal actors should assess when deciding whether or not to repeal a legal safeguard.
The first criterion promoted in Ginsberg’s dissent is the inquiry into whether or not a legal safeguard is currently serving a protective function. For example, Ginsberg claimed that repealing §4 would be harmful because it was continuing to protect minorities against racial disenfranchisement. She noted that despite improved voting equality, “second generation barriers” had taken over dated, explicit disenfranchisement tactics. She cited racial Gerrymandering and voter dilution, as well as language barriers, as examples of these modern means of racialized disenfranchisement. Ginsberg argued that because of these barriers, the DOJ and preclearance regulations still played a significant role in preventing disenfranchisement. For instance, since 1982, the DOJ had rejected more than 700 voting law changes and saw over 800 modified or withdrawn from consideration. And, while the states and jurisdictions covered in §4 composed about one fourth of the population, over half of the successful VRA lawsuits after 1982 came from these regions. Consequently, Ginsberg insisted that §4 was still necessary, especially in the regions that Roberts claimed had improved. She thus established that legal actors must look outside obvious improvements in equality to assess the continued function of a legal safeguard before promoting its repeal.
Secondly, Ginsberg’s dissent also suggests that legal actors must assess whether the damage that may be incurred by repealing a safeguard would be hard to repair. For example, Ginsberg worried that if the DOJ could not review new voting laws before their enactment, a plaintiff would have to file a lawsuit in order to be protected from racialized disenfranchisement. She noted that voting suits can take up to 6,000 hours to prepare and, once in court, can be hindered by delays from the involved election officials. Throughout this process, the unfair voting law would remain in place, disenfranchising minorities. Further, without DOJ preclearance, once one disenfranchisement method was defeated another one could replace it, and the whole lawsuit process would start again while disenfranchisement continued under this new practice. Thus, illustrating an expansive view that Roberts’ lacked, Ginsberg assessed the potential backlash from §4’s repeal and promoted that because the potential damage of repealing §4 would be difficult to repair, §4’s repeal would be a mistake. This analysis suggests that legal actors should think more broadly and assess the difficultly of repairing the damages that may be incurred by repealing a legal safeguard before advocating for its repeal.
Lastly, Ginsberg’s dissent suggests that the third criterion to consider when deciding to repeal a legal safeguard is whether or not the political climate incentivizes the behavior that the safeguard attempts to protect against. Illustrating her concern, Justice Ginsberg noted that the states and jurisdictions covered by §4’s preclearance rules are areas with white leadership and some of the most racially polarized voting patterns. This led her to worry that there would be political incentives “to prevent changes in the existing balance of voting power,” and that these preventative measures would “translate into race-specific disadvantages.” Therefore, unlike Roberts, Ginsberg looked at the racialized nature of current politics and worried that §4’s repeal would allow people to act on incentives to disenfranchise minorities. Thus, Ginsberg’s dissent suggests that legal actors should also consider whether the current political climate incentivizes the violation of a safeguarded right before agreeing to a legal safeguard’s repeal.
Thus, unlike Roberts, Ginsberg looked beyond apparent improvements in equality and concluded that §4 should not be repealed. An analysis of her opinion suggests that before repealing a safeguard, legal actors should consider (1) if the safeguard currently serves a protective function, (2) if the damage from repealing the safeguard would be hard to repair, and (3) if the political climate provides incentives to violate the right that the safeguard protects. Recent scholarship on voting rights and the impact of Holder suggests that these criteria are legitimate ways to assess the repeal of legal safeguards.
THE IMPACT OF HOLDER AND THE LEGITIMACY OF THE GINSBERG CRITERIA
Various scholarship legitimizes the first Ginsberg criterion by proving that modern barriers to racial voting equality currently exist and showing that these barriers gained strength after §4’s repeal. The work of legal scholar Bridgette Baldwin supports Ginsberg’s dissent by noting persistent methods of racialized disenfranchisement in the U.S., such as hate crimes and intimidation, and felon disenfranchisement in the context of racialized mass incarceration. A report for the Center for American Progress by Liz Kennedy upholds Baldwin’s claims about these continuing means of disenfranchisement. Yet, Kennedy’s work elaborates on these methods and shows how after Holder these tactics worked to suppress voting in the 2016 election. She notes that “once the Supreme Court gutted the Voting Rights Act in Shelby County v. Holder in 2013, even more states made it harder to vote in ways that were targeted at and fell disproportionately on people of color, young people, and low-income people.” According to Kennedy, the 2016 election represented the first time new voting restrictions had been in place in a presidential election for 14 different states, and the work of legal scholar Vincent Marinaccio shows that many of these new restrictive voting laws arose in the jurisdictions formally covered by §4, again affirming that §4 had been effectively protecting against disenfranchisement. Kennedy’s work shows how these new restrictive measures, such as abolishing early voting, which in some places was used by blacks five times more often than whites, or new registration requirements, which blacks were 8 times less likely to fulfill, worked to suppress blacks’ political voice. Thus, after Holder, minority voting rights were less protected, suggesting that §4 was indeed preventing voting discrimination and should not have been repealed. These works therefore show that the first Ginsberg criterion for assessing the necessity of legal safeguards is legitimate.
A report by Tomas Lopez from the Brennan Center for Justice notes that this post-Holder voting discrimination is particularly hard to combat, supporting the second Ginsberg criterion for assessing the repeal of legal safeguards. For instance, Lopez comments that without DOJ preclearance requirements, disenfranchisement suits must be filed individually, and are much more expensive. He cites that lawyers in a 2012 Texas voting case needed over $350,000 to pay for attorneys, and that other voting cases in Texas could require millions of dollars. Moreover, Lopez notes that without preclearance requirements, “public notice by election officials and constant awareness by community members” are the only tools to prevent disenfranchisement. Thus, Lopez shows that post-Holder disenfranchisement is difficult to control and repair. His report thus legitimizes the second Ginsberg criterion and suggests §4 should not have been repealed.
Lastly, recent scholarship that looks into voter ID laws, a popular post-Holder method of disenfranchisement, supports the third Ginsberg criterion that requires legal actors to consider the political climate before proceeding to repeal a legal safeguard. For example, in their investigation of the effects of voter ID laws, Zoltan Hajnal et al. analyze voting records and state laws to show that voter ID laws reduce the turnout of people of color in both primary and general elections. Hajnal et al. also suggest that voter ID laws may reduce the Democratic vote because this disenfranchised cohort is most likely to vote for Democrats. The work of William D. Hicks et al. elaborates on this last hypothesis by investigating the impact of political climate on voter ID laws. Hicks et al. agree with Hajnal et al.’s observations that restrictive voting laws reduce the political participation of Democratic voters. Their research finds that while voter ID laws are most common in states with Republican-controlled legislatures, they are more frequently adopted in states where elections are competitive and Republican support is shrinking. Thus, according to Hicks et al. disenfranchising voting laws are a tool for Republicans to increase their electoral support. Thus, Hajnal, Hicks and their colleagues show that America’s political climate incentivizes the popular disenfranchisement tactics seen after §4’s repeal. They thus validate Ginsberg’s worries about political backlash after §4’s repeal and confirm that the political climate is something that should be considered when assessing a legal safeguard’s repeal.
All of the aforementioned scholarship suggests that Ginsberg was apt think beyond apparent improvements in equality when judging §4 of the VRA. And, this scholarship validates the three Ginsberg criteria that legal scholars should use to assess how advisable the repeal of a given legal safeguard is. With these criteria established and validated, it is time to turn to a more recent debate about racial disenfranchisement and the necessity of legal safeguards. This is the debate over majority-minority districting.
THE DEBATE ABOUT DISTRICTING LAW
In addition to protecting against measures that prevent minorities from casting their votes, the VRA also protects minorities from voter dilution. In §2, the VRA requires that voting district lines be drawn such that the voting power of minorities is not diluted. According to legal scholar Lauren Weinberg, this provision prevents two forms of voter dilution. The first, “cracking,” is when district lines are drawn to divide minorities into separate districts, thus weakening their political voice. The second form, “packing” creates a single district of minority voters, which narrows their political influence. Section 2 protects against both forms of voter dilution by requiring the creation of districts that support minorities’ political voices. These districts are called majority-minority districts because over 50% of their voting aged population belongs to a specific minority group. Majority-minority districts ensure that minority groups have the power to elect individuals who represent their interests. However, the need for majority-minority districts today is a point of dispute.
Due to recent voting trends, the need for majority-minority districts has been questioned. Because Americans have appeared to start voting together across racial lines, majority-minority districts may no longer be necessary to protect minorities’ political voices. Instead, coalition districts, in which a single minority group is not a majority, but multi-racial political coalitions still ensure that minority interests are represented, have been proposed as a viable alternative to majority-minority districts. According to legal scholar Richard Pildes, coalition districts could replace majority-minority districts because white voters appear more willing to vote for minority candidates today than in the past. Pildes also states that because many whites now support liberal candidates, just as minorities tend to do, minority votes could be protected if the majority of a district is democratic regardless of whether the district is majority-minority. The Fifth and Eleventh Circuit Courts have also advocated for the replacement of majority-minority districts. For instance, in Concerned Citizens of Hardee County v. Hardee Board of Commissioners the Eleventh Circuit Court explicitly claimed that “[t]wo minority groups . . . may be a single section 2 minority if they can establish that they behave in a politically cohesive manner.” In Page v. Bartels, the District Court of New Jersey also ruled against majority-minority districts, emphasizing that though coalition districts may decrease the absolute number of minority voters in a district, they increase their effective voting power by allowing for the more expansive vocalization of minority political preferences. Therefore, those in favor of abolishing §2’s majority-minority districts seem to argue that today, coalition politics both among minority groups and between minorities and whites, can apparently allow minority voices to be equally represented in ways that they could not when the VRA was authored. However, not everyone agrees with this optimistic outlook.
Claims against majority-minority districting do not come without push back. For instance, in Nixon v. Kent County, the Sixth Circuit Court promoted that coalition districts could not replace majority-minority districts because the creation of coalition districts essentially supports a political, rather than a racial, cohort and thus does not explicitly ensure the protection of minority interests. Legal scholar Sebastian Geraci supports this standpoint. Like the Sixth Circuit, he points out, “A coalition is a group of people who share common ideas, values, and political goals and work together to elect mutually acceptable candidates, much like a political party.” Geraci proceeds to argue that this means that coalitions represent political party interests and are not substitutes for representing minority interests, as safeguarded by the VRA. He also adds that maintaining majority-minority districts is essential because minorities have distinct political interests and grouping them together or dispersing them amongst whites does not necessarily assure that any single minority’s voice will be well represented. Therefore, concern about the preservation of minorities’ political voices cause many legal actors and scholars to argue that majority-minority districting safeguards must be maintained.
While the Circuit Courts have voiced their differing opinions on the requirement of majority-minority districts, the Supreme Court has yet to rule on this matter. The rest of this essay attempts to use the Ginsberg criteria to think beyond the apparent improvements in the representation of minorities’ political voices with coalition districts, and settle the debate about whether or not the repeal of §2’s majority-minority district safeguard is advisable.
ASSESSING THE NEED FOR MAJORITY-MINORITY DISTRICTS USING THE GINSBERG CRITERIA
When using the first Ginsberg criterion to assess majority-minority districts, it becomes evident that these districts currently protect minority voting power and should be maintained. Voting trends in new coalition districts demonstrate that non-majority-minority districts do not always support specific minority voting preferences. For instance, in a study of coalition districts in California, Matt Barreto et al. find that while a district’s various minority groups often support the same candidate, this homogenized support is not consistent. To illustrate this, Barreto et al. cite voting patterns in L.A. county districts for the 2010 Attorney General election. While the primaries pitted White, Black and Latino candidates against each other, the general election came down to one White and one Black candidate. Barreto et al. note that in the primaries, Asian and Latino voters coalesced to support Latino candidates. Yet, in the general election, Asian voters would not coalesce with Blacks to support the Black candidate, as Latino voters did. Similarly, elections in San Mateo County (a Latino, White and Asian coalition) show that when a white candidate was matched against a Latino or Asian one, the minority candidate got the majority of their own race’s vote while the other minority split their vote between the two candidates. This divide suggests that coalition districts do not definitely assure that a given minority’s political interests are adequately shared amongst the district’s voting population. Consequently, Barreto’s work demonstrates that majority-minority districts are currently needed to prevent the dilution of a given minority’s political interests. Examining inter-minority disputes further affirms this outlook.
Current political divisions and animosities across different racial groups suggest that majority-minority districts are presently needed to assure that racial minorities’ interests are represented in a given district. For instance, while discussing minorities’ political preferences, Sebastian Geraci notes that minorities hold different amounts of support for each political party and also prioritize different national issues. For example, Asians disapprove of Republicans less than Blacks, and Blacks prioritize expanding participation in governmental decision making whereas Latinos prioritize maintaining societal order. These disparate political views are likely best represented in districts where each minority is a majority. Moreover, recent hostile outbursts over affirmative-action demonstrate that minorities today do not always support each other’s interests: at University of California at Berkeley, Asian Americans “were outraged by what they perceived as Berkeley’s attempt to achieve proportional representation of all races by denying admission to Asian-Americans in favor of African- and Hispanic- Americans.” Furthermore, economic competition between Blacks and Latinos have caused these two minority groups to boycott each other’s businesses or refuse to vote for politicians of the opposing race. Therefore, today’s inter-minority political opinions are diverse and race relations are far from amicable. This suggests that majority-minority districts are currently essential to preserving minorities’ ability to effectively voice their distinct interests and elect candidates who support these interests. The first Ginsberg criterion thus discourages the dismantling of majority-minority districts. The second Ginsberg criterion does as well.
According to the second Ginsberg criterion, majority-minority districts should be maintained because the damage that could arise from eliminating these districts would be hard to repair. If the Supreme Court repealed the legal safeguard of majority-minority districts, it would be hard for minorities to prove voter dilution and restore their political influence. Firstly, the Supreme Court has not established a standardized measure of voter dilution. Consequently, they have no means of applying an efficient test to validate voter dilution complaints. For instance, to determine if voter dilution has taken place and could have been prevented, the Supreme Court case Thornberg v. Gingles requires the court to assess the geographic compactness of a minority group, the tendency for these minorities to vote as a bloc, and the extent to which voting is racially polarized. However, Gingles also requires that the court assesses the “totality of the circumstance” to determine minority voter dilution. This vague requirement thus promotes the assessment of voter dilution on an inconsistent, case by case basis that does not assure dilution correction. Moreover, according to Loyola University law professor, Justin Levitt, proving voter dilution is difficult because the case has to be incredibly obvious or supported by explicit evidence, like an email from an election official declaring discriminatory intent. When looking at the record of past dilution cases, the difficulty of proving dilution becomes very clear. Not only do these cases take years to resolve, but many are ultimately dismissed because of inadequate evidence. Just in 2010 the courts were asked to assess dilution in 42 state districts, and only ended up declaring two districts unlawful. Moreover, though the court typically sets a deadline by which unlawful districts must be redrawn, officials can delay the redrawing by appealing the decision. Consequently, because the damage of voter dilution is hard to claim and ultimately fix, legal actors should be advised against encouraging the dismantling of majority-minority districts. The third and final Ginsberg criterion leads to this same conclusion.
Due to racially polarized voting trends, today’s political climate incentivizes minority voter dilution, causing Ginsberg criterion three to discourage legal actors from repealing majority-minority districting requirements. For instance, a 2014 Gallup report suggests that non-whites are significantly more likely to be Democratic than Republican. As the data spans back into the 1990’s, the report indicates that racialized party identification has become more drastic in recent years, with whites increasingly showing less support for Democratic presidential candidates and more support for Republicans. While this could be a result of white racism against former President Obama, the Pew Research Center published a report demonstrating similar racial partisan divides for the 2016 presidential election, in which both presidential candidates were white. The fact that whites tend to support Republican candidates, while non-whites lean left means that Republican politicians have an incentive to manipulate redistricting committees and encourage them to draw district lines to dilute minority voting power. Because this incentive exists, majority-minority districting requirements cannot be safely repealed with the assurance that voter dilution will not arise and infringe upon the voting rights that majority-minority districting has safeguarded.
This essay used the opinions and ultimate backlash from Shelby County Alabama v. Holder to establish and validate the criteria that legal actors should consider when deciding to repeal legal safeguards. It argues that when deciding whether or not to repeal a safeguard, legal actors should look beyond apparent increases in equality to consider whether or not a safeguard is currently protecting a certain right, if the damage from repealing the safeguard would be hard to repair, and if the political climate incentivizes the violation of the right the legal safeguard serves to protect. Applying these criteria to current debates over the necessity of majority-minority districts suggests that repealing this legal safeguard would be detrimental to minorities’ voting rights and political power. Ultimately establishing these criteria and the need to look beyond apparent increases in equality when assessing legal safeguards is extremely important, not just for the future of racial equality but for all types of equality in America. These criteria show that legal actors cannot take obvious improvements in racial, economic and gender equality for granted. They must look at how certain safeguards are functioning in a broader societal context before advocating for their repeal. With rising disputes over affirmative action law and even abortion law, the debates over laws that safeguard the rights of certain races and genders are prominent in many political spheres. If legal actors assume a broader perspective, they will be able to make sure that the decisions they make about these safeguards continue to prevent the explicit and institutionalized exclusion that many non-white, non-male citizens face in America.
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