Lecture 19

Voting Rights Act V

PSC 293 (Race and the Law)
Lecture 19: Application of the Results Test; Racially Polarized
Voting
This Week

 Lecture 1:
 Issacharoff: pages 781-815
 Results Test of Section 2
 Racially Polarized Voting
 Thornburg v. Gingles (1986)

 Lecture 2:
 Issacharoff: pages 815-832
 The Gingles First Prong
 Bartlett v. Strickland (2009)

 Kousser: pages 243-276

 Discrimination in North Carolina
Political Process behind 1982
Amendments
 Caroline Products footnote
 Written by then Associate Justice Harlan Stone
 Role of the Courts to protect “discrete and insular minorities” when
the political process fails
 Berman covers more of this in the previous lecture
Thornburg v. Gingles (1986)
Thornburg v. Gingles- II

 Brennan, J. for the Court (plurality in III-C and IV-B)

 Challenge to North Carolina General Assembly maps, which used multi-member districts in
parts of the state
 District Court relied on totality of the circumstances test to strike down 7 multi-member
districts
 Official discrimination by the state from 1900-1970 through (at different times) poll taxes,
literacy tests, anti-single shotting, and use of multi-member districts
 History of discrimination in housing, education, employment and health services that resulted in a
lower socio-economic class levels
 No sub-district residency requirements for the multi-member districts
 Encouragement of white candidates to vote along racial lines, along with racial appeals in
campaigns, including in 1984 Senate race
 Minimal electoral success of black candidates in winning both statewide in the challenged
districts
Thornburg v. Gingles- III

 However, the District Court acknowledge that in 1982 elections:

 11 blacks (of 120) elected to State House, including 5 from the multi-member
districts
 Litigation conducted after the 1982 elections it was aberrational
 They also considered the levels of racially polarized voting in the challenged
districts, by expert and lay witnesses
 Section 2 and Vote Dilution through Multi-member Districts
 Legislative History
 The purpose of the 1982 Amendments in the Senate report was to reject the part of
Mobile v. Bolden that discriminatory intent is required for a Section 2 violation
 The factors are listed, but the Court notes that they are neither comprehensive or
exclusive other factors may be considered
 But no requirement that a specific number be proven
Thornburg v. Gingles- IV

 More on Section 2 and Vote Dilution through Multi-member Districts

 Vote Dilution Through Use of Multimember Districts
 Plaintiffs say this impairs minority members ability to elect candidates of
their choice through submergence in the white majority
 These schemes do not “per se” violation Section 2 they still have to prove
the electoral structure operates to minimize or cancel out their ability to
elect candidates of choice
Thornburg v. Gingles- V

 Three prong test

 The minority group must demonstrate that it is sufficiently large and geographically
compact to constitute a majority in a single member district
 If they cannot form a majority, it is not the electoral scheme to blame
 The minority group must show itself to be politically cohesive
 The minority must show that white majority votes operate as a bloc to enable it (in
the absence of special circumstances) usually defeat the minority group’s preferred
candidate
 This is often called the “white bloc voting” prong
Thornburg v. Gingles- VI

 Racially polarized voting

 Standard for Legally Sufficient Racial Bloc Voting
 Do minorities constitute a politically cohesive unit?
 Do whites vote in a bloc usually to defeat the minority’s preferred candidates?
 The white bloc vs. minority support plus white crossovers
 This can vary from district to district according to many factors
 Nature of the alleged dilutive electoral mechanism
 The presence or absence of other potentially dilutive electoral devices such as majority vote
requirements, designated posts, prohibitions against bullet voting
 The percentage of registered voters in the district who are members of the minority group
 The size of the district
 The number of seats open in a multimember district
 The number of candidates in the field
Thornburg v. Gingles- VII

 Evidence of Racially Polarized Voting (plurality with Marshall, Blackmun, and

Stevens, JJ.)
 Appellant arguments rejected
 They reject the arguments that one should look to any other factor beyond race as
causation only look at the correlation between race of the voter and certain candidates,
not the causes of the correlation
 One needs only look to the results of these voting patterns
 Not required to look at things such as socioeconomic factors
 Look to the race of the minority group’s preferred candidate
 Not the race of the candidates
 Campaign spending can be part of the socioeconomic inequalities
Thornburg v. Gingles- VIII

 More on Evidence of Racially Polarized Voting (plurality with Marshall,

Blackmun, and Stevens, JJ.)
 No showing of racial animosity as the primary determinant of voter behavior
 Intent requirement was taken away by 1982 Amendments
 It would be divisive to call local officials racist
 It also was a difficult burden to place on plaintiffs
 It asked the wrong question the new question is whether minorities have equal access to the
electing of their representatives
 Do not need to look to explanations for voting behavior, but the voting behavior itself

 Statically speaking, this would be done with a bi-variate analysis method

Thornburg v. Gingles- IX

 Legal Significance of Some Black Candidates’ Success

 Blacks did achieve more success in 1982 elections
 Proportional representation in District 23 (Durham County) since 1973
 Occasionally in other districts
 North Carolina and Justice Department say that PR negates a Section 2 claim
 But Senate Factors say a few wins by minority candidates do not negate the possibility of
vote dilution
 If the multimember scheme usually but not always acts to dilute minority votes, it cannot
be defended on the basis that minorities sometimes are elected
 However, the District Court did err in District 23 given the sustained success of black
candidates there in Durham (which is a college town home to Duke University)
 The District Court opinion, excepting District 23 is upheld
Thornburg v. Gingles- X

 White, concurring
 He disagrees with Part III-C
 He disagrees with Brennan that the race of the candidate is irrelevant
 Don’t do the voter/candidate distinction
 This is more interest group politics
Thornburg v. Gingles- XI

 O’Connor, J. concurring in judgment, joined by Burger, C.J., Powell and

Rehnquist, JJ.
 She says Congress did not intend for there to be a right to proportional
representation for minority voters
 She gives four examples 1000 votes, 30% black city
 Possible outcomes
 Four single member seats one black majority
 Four single member seats two black majority
 Four single member seats no black majority
 Four at-large seats no black candidates win in most cases
Thornburg v. Gingles- XII

 More from O’Connor, concurring in judgment

 Possible measures of undiluted minority strength
 Proportionality
 Look at a plan versus a hypothetical plan
 Let the courts draw a plan to maximize minority voting strength use the predicted
strength of undiluted minority vote strength
 But where do you set these thresholds Zimmer factors, despite the Senate Factors being based off
of it
 She worries this is more of a proportional representation requirement
 She would stick to prior cases such as White v. Regester; Whitcomb v. Chavis and Zimmer
 Court should consider ALL relevant facts, not solely focus on the ability of the minority
group to elect its candidate of choice
Thornburg v. Gingles- XIII

 Even more from O’Connor

 She disagrees on the statistical approach for racially polarized voting
 Should allow evidence that some other factors may have played a role in why white voters
refused to vote for the minority candidates
 She also agrees with the point made by Justice White on the race of the candidate
 But she agrees there was racial bloc voting everywhere but District 23
 She agrees with Brennan on consistent and sustained success of candidates
preferred by minority voters is inconsistent with a Section 2 violation
Thornburg v. Gingles- XIV

 Stevens, joined by Marshall and Blackmun, JJ. concurring in part and

dissenting in part
 They disagree with finding that the District Court erred on District 23
 They see that election of black candidates in the district was not conclusive on the issue

 Parties in the case

 Black plaintiffs joined by Republican Governor and RNC
 White Democratic Attorney General and White Dems in General Assembly Reagan
Justice Department
 We will see later the role of race and party
Notes on Thornburg v. Gingles

 Statistical approaches
 Beginning with City of Petersburg v. United States (D.C.C. 1972),
courts started to use formal data analysis
 Homogenous precinct analysis present issues because most
precincts may not be homogeneous and it ignores behavior in racially
mixed precincts
 Do voters behave differently in racially mixed precincts
 In Major v. Treen (E.D. La. 1983) the District Court found that whites that
had fled the City of New Orleans were less likely than the ones that
stayed in the city to vote for black candidates
More on Data Analysis
Norfolk City Council Race, 1980
Engstrom and McDonald

 Then a shift to bivariate ecological regression

 Regression the look at how one variable changes as the other
variable changes
 Bi-variate vs. multi-variate analysis
 Fitting the best line through the data points
 Slope line direction
 Regression co-efficient for a every one unit increase in the black
portion of VAP, it would result in a .xxx increase in the share that would
vote for the black candidate
 The left (mostly white) vs. right (black) intercepts can show degrees of
residential segregation in precincts
 The R squared value +1.0 would indicate a perfectly positive
relationship, and vice-versa
 Shows much of the variation can be explained by race
 Here it was .985
More on Data Analysis

 This is a racially polarized voting analysis done by me in

a paper on Louisiana
 Notice the left intercept is about .16, but the right
intercept is over 1.0
 King has came up with a method to explain the going above
1.0 called ecological inference
 But not as racially correlated as Norfolk
 But more dots above the line indicates more Obama support
from whites than black support for Romney
 O’Connor seems to prefer multi-variate or to take in
different things other than just race and voting behavior
 But bi-variate seems to be the workhorse of voting rights
litigation, despite methodological advances
One last thing

 The vast majority of Section 2 claims are brought by blacks or a member of a

language minority
 However, the Bush II Justice Department brought a case in Noxubee County,
Mississippi on behalf of white voters in a 2/3 black county
 The county entered into a consent decree
 United States v. Brown (S.D. Miss. 2007)
 White voters in Dallas County brought an unsuccessful lawsuit against a County
Commission map in the county Harding v. County of Dallas (N.D. Tex. 2018)
Next Lecture

 Lecture 2:
 Issacharoff: pages 815-832
 The Gingles First Prong
 Bartlett v. Strickland (2009)

 Kousser: pages 243-276

 Discrimination in North Carolina