4. Racial and Ethnic Discrimination

Introduction

More than a century ago the U.S. Supreme Court described the right to vote as fundamental because it is “preservative of all rights.” “Other rights even the most basic are illusory if the right to vote is undermined.” Unfortunately, for a large number of American citizens the right to vote remained illusory until, almost a century after the ratification of the Fifteenth Amendment, Congress passed the Voting Rights Act of 1965. The act primarily protected the right to vote as guaranteed by the Fifteenth Amendment. It was also designed to enforce the Fourteenth Amendment and Article 1, Section 4 of the Constitution.

The Voting Rights Act is one of the most successful civil rights statutes ever passed by Congress. The act accomplished what the Fifteenth Amendment to the U.S. Constitution and numerous federal statutes had failed to accomplish—it provided minority voters an opportunity to participate in the electoral process and elect candidates of their choice, generally free of discrimination.

The act contains two principal sections, Section 2 and Section 5. Section 2 was originally a restatement of the Fifteenth Amendment and applies to all jurisdictions. It prohibits any state or political subdivision from imposing a “voting qualification or prerequisite to voting or standard, practice or procedure ... in a manner which results in the denial or abridgement of the right to vote on account of race or color.”

Section 5, on the other hand, applies only to certain jurisdictions covered under the Act. A jurisdiction covered under Section 5 is required to preclear any changes in its electoral laws, practices or procedures with either the U.S. Department of Justice or the U.S. District Court for the District of Columbia.

The two sections work independently of each other. A change that has been precleared under Section 5 still may be challenged under Section 2.

The act has been amended three times since 1965. The 1970 amendments instituted a nationwide, five-year ban on the use of tests and devices as prerequisites to voting. In 1975, the ban on tests was made permanent and the coverage of the act was broadened to include members of language minority groups. In 1982, in response to judicial opinions discussed below, amendments made it clear that an intent to discriminate was not required for a claim under the act.

In the 1990s, the Department of Justice encouraged states subject to Section 5 preclearance to draw redistricting plans that created new districts where members of a racial or language minority group (primarily African Americans or Hispanics) were a majority of the population. These new “majority-minority” districts were intended to protect the states from liability under Section 2 for failing to draw districts that the minority group had a fair chance to win. As states drew the plans, they discovered that the Justice Department had little concern that majority-minority districts be compact. In some cases, the department refused to preclear a plan unless the state “maximized” the number of majority-minority districts by drawing them wherever pockets of minority population could be strung together. As the plans were redrawn to obtain preclearance, some of the districts took on bizarre shapes that caused them to be labeled “racial gerrymanders.”

The racial gerrymanders were attacked in federal court for denying White voters their right to equal protection of the laws under the Fourteenth Amendment. The U.S. Supreme Court publicly rebuked the Justice Department for its maximization policy in Georgia, and held that a racial gerrymander must be subjected to “strict scrutiny” to determine whether it was “narrowly tailored” to achieve a “compelling state interest” in complying with Section 2. Many of the racial gerrymanders were struck down by the federal courts because their drafters had not followed “traditional districting principles.”

The states redrew the districts once again. As 1998 drew to a close, North Carolina’s congressional plan was before the U. S. Supreme Court for the fourth time.

This chapter provides an explanation of how this happened and sets forth the legal standards that will govern plan drafters as they attempt to accommodate the conflicting demands of minority groups, the Justice Department, and the U.S. Supreme Court after the 2000 census.

Section 2 Of The Voting Rights Act—General Protection Of Voters’ Rights

Applicability

Section 2 of the Voting Rights Act prohibits any state or political subdivision from imposing any voting qualification, standard, practice or procedure that results in the denial or abridgment of any U.S. citizen’s right to vote on account of race, color or status as a member of a language minority group. The 1982 amendments codified a “totality of circumstances” standard to be used for determining whether a challenged practice results in an abridgment of the right to vote. Currently, a violation of Section 2 is established 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 racial, color, or language minority class] ... 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 ... 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.

Generally, Section 2 cases have involved claims that the political process was not equally open to certain minorities because of the use of multimember districts, packing minorities into a single district, or fracturing minorities into several districts.

Multimember districts. The voting strength of a minority group may be lessened by placing it in a larger multimember or at-large district where the majority may elect a number of its preferred candidates and the minority group cannot elect any of its preferred candidates. The validity of multimember districts has been challenged in numerous vote dilution cases, both before and after the 1982 amendments. Courts continue to hold that multimember districts are not per se unconstitutional. However, an at-large and multimember election system may violate Section 2 if it results in a denial of equal opportunity to participate in the electoral process. In examining the “totality of the circumstances,” courts may look to districting lines for independent indicators of discriminatory intent.

Packing. “Packing” occurs when a minority group is concentrated into one or more districts so that the group constitutes an overwhelming majority in those districts, thus minimizing the number of districts in which the minority could elect candidates of its choice. Packing often is accomplished by drawing district lines to follow racially segregated housing patterns. In Rybicki v. State Board of Elections (Rybicki II), the court held that over time any rigid adherence to well-defined lines of racial division may result in packing and vote dilution. Although the court did not find that it was wrong per se to consider racial housing patterns when drawing district lines, the court encouraged districting that moved away from Black-White boundaries, finding that apparent tracing of racial divisions presented a suspect circumstance.

Fracturing. “Fracturing” occurs when a group of minority voters is broken off from a concentration of minority voters and added to a large majority district. This submerges the minority voters in the majority district. In what became the seminal case, the district court in Gingles v. Edmisten considered a claim by Black citizens that a North Carolina redistricting plan fractured or submerged the strength of minority voters. Plaintiffs claimed that the North Carolina plan made use of multimember districts to submerge the Black vote in areas with substantial White voting majorities. The plan also utilized single-member districts to fracture concentrations of Black voters into separate voting minorities. The court held that, in light of the lingering effects of official discrimination and the substantial racial polarization in voting, the creation of multimember districts resulted in the submergence of Black voters. This submergence inhibited the ability of minority voters to participate in the political process. Additionally, the court held that the plan’s single-member districts unlawfully diluted Black voting strength by fracturing concentrations of Black voters.

Judicial Interpretation Of Section 2 Of The Voting Rights Act And The 1982 Amendments

An overview. In the 1980 case of City of Mobile v. Bolden, the Supreme Court rejected earlier cases that measured the effects of particular voting practices and ruled that plaintiffs must prove an intent to discriminate in order to prove a vote dilution claim. This decision substantially increased the burden that plaintiffs had to meet. Congress disapproved of the Bolden decision and in 1982 amended Section 2 of the Voting Rights Act to codify the factors analyzed in the pre-Bolden court decisions. Thus, the focus shifted from discriminatory intent to the discriminatory effects or “results.”

The Supreme Court first considered the amended Voting Rights Act in Thornburg v. Gingles. In Gingles, the Court announced three preconditions that a plaintiff first must establish to prove a Section 2 claim–the size and geographic compactness of the minority population, their political cohesion, and whether the majority usually voted as a bloc to defeat the minority group’s preferred candidate. Then the courts would look at the “totality of the circumstances” to determine if the practice results in a dilution of electoral power. In numerous cases since 1986, the Supreme Court has attempted to clarify the Gingles factors.

Bolden and the 1982 amendments. In City of Mobile v. Bolden, Black residents had charged that Mobile’s practice of electing commissioners at large diluted minority voting strength, thus violating the Fourteenth and Fifteenth Amendments and Section 2 of the Voting Rights Act. The plurality opinion stated that “racially discriminatory motivation is a necessary ingredient of a Fifteenth amendment violation.” The Court concluded that the plaintiffs had failed to prove a violation of Section 2 of the Voting Rights Act in that Congress did not intend Section 2 to have any effect different from that of the Fifteenth Amendment itself.

Congressional response to Bolden was swift. The House Judiciary Committee originated the move to amend Section 2 of the Voting Rights Act. The House Judiciary Committee report found the intent standard inappropriate and indicated that the proper judicial focus should be on election outcomes, not on discriminatory intent. The House Judiciary Committee set forth a results standard that would ban any voting procedure that would “result” in a denial or abridgment of the right to vote on account of race or color. The House of Representatives stated that the results test was to parallel the “effects” test of the remedial Section 5. To avoid the establishment of a race-based entitlement to representation, the House added a disclaimer against proportionality. The Senate Judiciary Committee recommended a revised version of the bill, which eventually was adopted. It retained the results focus of the House proposal but codified the “totality of circumstances” language from White v. Regester, a 1973 case involving multimember state legislative districts in Texas, as the standard:

§ 1992 amends Section 2 of the Voting Rights Act of 1965 to prohibit any voting practice, or procedure [that] results in discrimination. 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, based on the controlling Supreme Court precedents, which applied in voting discrimination claims prior to the litigation involved in City of Mobile v. Bolden. The amendment also adds a new subsection to Section 2 which delineates the legal standards under the results test by codifying the leading pre-Bolden vote dilution case, White v. Regester.

In reporting its findings, the Senate Judiciary Committee found that the court in Bolden had broken with precedent and substantially increased the burden on plaintiffs in voting discrimination cases by requiring proof of discriminatory intent. The committee concluded that “[t]his intent test places an unacceptably difficult burden on plaintiffs. It diverts the judicial injury [sic] from the crucial question of whether minorities have equal access to the electoral process to a historical question of individual motives.”

The Senate Judiciary Committee added further guidance by including as a part of the Section 2 legislative history a nonexclusive list of factors for courts to consider. These factors, basically an enumeration of those articulated in the 1973 case of Zimmer v. McKeithen, include:

(1) the extent of any history of official discrimination in the state or political subdivision 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 the elections of the state or political subdivision 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 in the state or political subdivision 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; and (7) the extent to which members of the minority group have been elected to public office in the jurisdiction.

Thornburg v. Gingles. Between 1982 and 1986, numerous lower court decisions upheld the constitutionality of the amendments. Many cases dealt with the use of multimember districts where the courts held that multimember districts were not per se a violation of Section 2.

The Supreme Court first interpreted the 1982 amendments to Section 2 in Thornburg v. Gingles. In that case, the plaintiffs challenged the 1982 North Carolina redistricting plans for one multimember state senate district, one single-member state senate district, and five multimember state house districts. Pursuant to Section 5 of the act, the plans had been precleared by the Department of Justice. The plaintiffs claimed that the plans impaired the ability of Blacks to elect representatives of their choice in violation of the Fourteenth and Fifteenth amendments as well as Section 2 of the Voting Rights Act.

Justice Brennan, writing for the majority in Gingles, gave an exhaustive analysis of the legislative history of Section 2. Brennan rejected, with no dissent, the earlier test of intent to discriminate and affirmed that a court, in deciding whether a violation of Section 2 has occurred, is to determine if “as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice.”

To answer this question, Justice Brennan indicated that a court “must assess the impact of the contested structure or practice on minority electoral opportunities ‘on the basis of objective factors.”’ The factors to be considered in determining the “totality of circumstances” surrounding an alleged Section 2 violation include the extent to which members of the protected class have been elected; the extent of the history of official discrimination touching on the minority group participation in the democratic process; racially polarized voting; the extent to which the state or political subdivision has used unusually large election districts; majority vote requirements; antisingle-shot provisions or other voting practices that enhance the opportunity for discrimination; denial of access to the candidate slating process for members of the class; the extent to which the members of the minority group bear the effects of discrimination in areas such as education, employment, and health that hinder effective participation; whether political campaigns have been characterized by racial appeals; whether there is a significant lack of responsiveness by elected officials to the particular needs of the group; and whether the policy underlying the use of the voting qualification, standard, practice, or procedure is tenuous. In a footnote to the plurality opinion, Justice Brennan indicated that two of the objective factors used to evaluate vote dilution claims—racial polarization and the electoral success of Black candidates—are essential to minority vote dilution claims.

In addition to a review of “objective” factors, the Gingles Court developed a new three-part test that a minority group must meet in order to establish a vote dilution claim under Section 2. The test requires that a minority group prove that: 1) it is sufficiently large and geographically compact to constitute a majority in a single-member district, 2) it is politically cohesive, and 3) in the absence of special circumstances, bloc voting by the White majority usually defeats the minority’s preferred candidate.

The Gingles Court held that all but one of the challenged 1982 multimember districts were characterized by racially polarized voting; a history of official discrimination in voting matters, education, housing, employment, and health services; and campaign appeals to racial prejudice. Those factors, in concert with the use of multimember districts, impaired the ability of geographically insular and politically cohesive groups of Black voters to participate equally in the political process and to elect candidates of their choice.

With respect to one of the multimember districts, a majority of the Supreme Court voted to reverse the lower court, holding that, as a matter of law, the lower court had ignored the continued success of Black voters in the district. This success resulted in proportional representation inconsistent with the allegation that the ability of Black voters in that district was unequal to that of White voters in electing representatives of their choice. Justice Stevens, speaking for justices Marshall and Blackmun, dissented from the majority in this matter and discounted the continued electoral success of minority-favored candidates in the district since 1972. Instead, he would have accepted other district court findings regarding this district and other state legislative districts for the years involved, deferring to the knowledge of the judges of the lower court who are “well-acquainted with the political realities of the State.”

Post-Gingles judicial interpretations. Growe v. Emison. In the 1990s, the U.S. Supreme Court expounded on the Gingles tests. In Growe v. Emison, the Supreme Court specifically ruled that the Gingles preconditions for a vote dilution claim apply to single-member districts as well as to multimember or at-large districts. The Court had previously held that multimember districts and at-large districts pose greater threats to minority-voter participation than single-member districts. The Court found that it would be peculiar to hold challenges to the more dangerous multimember districts to a higher threshold than challenges to single-member districts. The reasons for the Gingles preconditions also applied to single-member districts. “Unless these points are established, there neither has been a wrong nor can be a remedy.” The Growe court found that there was no evidence of the second or third Gingles conditions, i.e., minority cohesion or majority bloc voting. Thus, having failed to meet the Gingles preconditions, the Supreme Court found that there was no need to create a majority-minority district.

The Growe opinion also is important because it clarified the proper population to examine for Section 2 claims. In Growe, the district court relied upon percentages of total population and required a “super-majority minority Senate District.” The Supreme Court, in footnote 4 of its opinion, apparently gave preference to voting age population. Because Section 2 concerns the ability of a group to elect representatives of its choice, voting age population appears to offer a more precise measurement.

Voinovich v. Quilter. In Voinovich v. Quilter, decided a week after Growe, the Supreme Court again found that a federal court had overstepped its boundary. Pursuant to the Ohio Constitution, a reapportionment board proposed a plan for the state. The plan included eight majority-minority districts. Suit was filed in federal court alleging that the plan illegally packed Black voters into a few districts where they constituted a super majority. Plaintiffs alleged that some Black voters should have been dispersed to create “influence” districts in which they would not constitute a majority, but could, with white crossover votes, elect candidates of their choice.

The district court rejected the plaintiffs’ claims that Section 2 of the Voting Rights Act requires that such “influence” districts be created whenever possible. However, the Court went on to find that Section 2 prohibits the “wholesale creation of majority-minority districts” unless necessary to remedy a violation of Section 2. The district court therefore ordered that the reapportionment board redraw the plan or demonstrate that it was remedying a Section 2 violation. The board revised the plan to create only five majority-minority districts and created a record that they believed justified their creation. The district court concluded that the board had not proven a violation of Section 2 and ordered that the primary elections be rescheduled. The U.S. Supreme Court stayed this order and heard the appeal.

The Supreme Court disagreed with the ruling of the district court that Section 2 prohibits the creation by the state of majority-minority district absent a violation of section 2. A state is free to draw districts however it wants so long as it does not violate the U.S. Constitution or the Voting Rights Act. Although a federal court may not order the creation of majority-minority districts absent a violation of federal law, a state is free to do so. Further, by requiring the state to prove a violation of Section 2 to justify its plan, the Supreme Court found that the district court had committed error by shifting the burden of proof for a Section 2 violation from the plaintiffs to the state.

In deciding the issue before the Court, the Supreme Court first noted that it had not ruled on whether influence dilution claims are viable under Section 2. The Court again found that it was not necessary to decide that issue in this case. The Court held that, assuming such claims are valid, they must meet the Growe preconditions. Because the district court specifically found that Ohio does not suffer from racially polarized voting, the plaintiffs could not prove a violation of Section 2 of the Voting Rights Act.

Johnson v. De Grandy. A year after the Growe and Voinovich decisions, the Supreme Court again struck down changes required by a district court. In Johnson v. De Grandy, plaintiffs objected to the legislative redistricting plan in Florida because it was possible to draw additional districts in Dade County that would have Hispanic majorities. The state argued that because the number of majority-minority districts was proportionate to the number of minorities in the population, there could be no vote dilution. The district court found that all three Gingles preconditions had been established and that a violation of Section 2 must be found because additional Hispanic majority-minority House districts could be drawn without diluting Black voters’ strength. The Court ordered a remedial plan with two additional majority-minority districts.

The Supreme Court first declined to decide whether the plaintiffs had established the first prong of the Gingles test—whether Hispanics were sufficiently numerous and geographically compact to be a majority in additional single-member districts. The state argued that, because a large percentage of the Hispanic population in the region were not citizens, several districts in the plaintiffs’ proposed plan would not have sufficient Hispanic citizens of voting age to elect candidates of their choice without crossover votes from other ethnic groups. Thus, although Hispanics may constitute a majority of the population—and even a majority of the voting age population—they may not constitute a majority of the voting age population eligible to vote.

Rather than deciding this issue, the Supreme Court focused on the “totality of the circumstances” as articulated in Gingles. The district court had seemed to hold that if the three prongs of Gingles are proven, and the totality of the circumstances shows that there is a history of discrimination against members of a minority group, Section 2 requires that the maximum number of majority-minority districts be created. The Supreme Court disagreed. It specifically rejected a rule that would require a state to maximize majority-minority districts: “Failure to maximize cannot be the measure of Section 2.”

The Supreme Court also rejected an absolute rule that would bar Section 2 claims if the number of majority-minority districts is proportionate to the minority group’s share of the relevant voting age population. The Court found that offering states a “safe harbor” might lead to other misuses, such as creating a majority-minority district in an area in which racial bloc voting was not present so that one would not have to be drawn in an area that needed one. Rather, the Court considered the totality of the circumstances. Examining the totality of the circumstances, the Court found that, since Hispanics and Blacks could elect representatives of their choice in proportion to their share of the voting age population and since there was no other evidence of either minority group having less opportunity than other members of the electorate to participate in the political process, there was no violation of Section 2.

Shaw v. Reno and related cases. Although not brought as a Section 2 case, the decision in Shaw v. Reno (“Shaw I”) affected later Section 2 cases. In Shaw I, the Supreme Court held that under the Fourteenth Amendment “redistricting legislation that is so bizarre on its face that it is unexplainable on grounds other than race” must meet the strict scrutiny standard of other legislation that makes distinctions based on race. The Supreme Court remanded to the district court a challenge to a North Carolina congressional district for a determination of whether it was narrowly tailored to further a compelling governmental interest. Later, in Miller v. Johnson, the Supreme Court found that the bizarre shape of a Georgia congressional district was not the controlling factor. The Court held that, if race was the predominant, overriding factor, the plan would be subject to the strict scrutiny standard. In order to meet the strict scrutiny test, a redistricting plan must be narrowly tailored to serve a compelling state interest.

Two later decisions of the Supreme Court assumed, without deciding, that complying with Section 2 is a compelling state interest. First, in Shaw v. Hunt, the Supreme Court again considered congressional districts in North Carolina. The state attempted to justify its redistricting plan in part by the need to avoid liability under Section 2. The district court upheld the plan under strict scrutiny, because it was narrowly tailored to serve the state’s interest in complying with sections 2 and 5 of the Voting Rights Act. The Supreme Court reversed. It held that, in order to survive strict scrutiny, the state’s action must “remedy the anticipated violation or achieve compliance to be narrowly tailored.” A district that is not “reasonably compact” cannot remedy a perceived Section 2 violation because it fails to satisfy the first threshold requirement of the Gingles standard. Thus, the bizarre shape of the district in North Carolina could not be justified by the need to avoid liability under Section 2.

Later, in Bush v. Vera, the Supreme Court upheld a decision by the district court in Texas that three congressional districts were not narrowly tailored to avoid Section 2 liability. The Court found that the bizarre shapes of the districts “defeat any claim that the districts were narrowly tailored to serve the state’s interest in avoiding liability under Section 2, because Section 2 does not require a state to create, on predominately racial grounds, a district that is not ‘reasonably compact.’” Thus, the courts struck down Texas’ attempt to create three new majority-minority districts.

Shaw, Miller and Bush are discussed in more detail later in this chapter under “Racial Gerrymandering.”

The Use Of Statistical Evidence To Prove Racial Polarization

Under Gingles’ three-part test, proof of legally significant racially polarized voting is an indispensable element of a Section 2 vote dilution claim. Racially polarized voting (also referred to as racial bloc voting) exists when the race of a candidate affects the way in which a voter votes. Since it is generally unknown how members of each race vote for particular candidates, parties to a Section 2 claim and the court are forced to rely on various statistical techniques to estimate how minority voters and majority voters voted in a challenged electoral district. Testimony by witnesses who are familiar with local politics and voting behavior generally is presented in conjunction with statistical evidence to corroborate or contradict statistical findings.

The most commonly employed statistical techniques for measuring racially polarized voting are homogeneous precinct (or extreme case) analysis and bivariate regression analysis. These two statistical measurements were endorsed, but not mandated, by the Supreme Court in Gingles.

Homogeneous precinct analysis. A “homogeneous precinct” is defined as a precinct that has at least a 90 percent minority group population or at least a 90 percent majority population. Homogeneous precinct analysis isolates racially segregated precincts, determines how members of the predominant race in each of these precincts voted, and uses the results to estimate the voting behavior of other members of that race throughout the challenged electoral district. Although popular in vote dilution cases as an easily comprehensible statistical technique, homogeneous precinct analysis is rarely used alone to estimate racially polarized voting. Among the disadvantages cited for exclusive reliance on homogeneous precinct analysis are its dependence on small, potentially under representative precinct samples and its assumption that majority and minority voters who live in racially mixed (i.e., nonhomogeneous) precincts will vote the same way as members of their race in the homogeneous precincts voted.

Bivariate regression analysis. Bivariate regression analysis often is used to complement the results of a homogeneous precinct analysis. Bivariate regression analysis examines the relationship between the racial composition of a precinct and the percentage of votes a candidate receives from that precinct. The resulting correlation derived from the aggregated precinct data is used to estimate the voting behavior of individual voters throughout the challenged electoral district. Bivariate regression analysis relies on both homogeneous and racially mixed precincts for its data. Unlike homogeneous precinct analysis, bivariate regression analysis takes into account the potential of minority voters in racially mixed precincts to vote differently from minority voters in homogeneous precincts.

The Gingles Court avoided establishing any mathematical formula for determining when racial polarization exists. According to the Court, the amount of White bloc voting necessary to defeat the minority bloc vote plus White crossover votes will vary from district to district, depending on factors such as the percentage of registered voters in the district who are minorities, the size of the district, the number of seats open and the candidates running in a multimember district, the presence of majority vote requirements, designated posts, and prohibitions against bullet voting.

The Court made clear that each challenged district must be individually evaluated for racially polarized voting, and that it is improper to rely on aggregated statistical information from all challenged districts to show racial polarization in any particular district. The Court also noted that showing a pattern of bloc voting over a period of time is more probative of legally significant racial polarization than are the results of a single election. The number of elections that must be studied varies, depending primarily upon how many elections in the challenged district fielded minority candidates. Studies of elections involving almost exclusively White candidates, even where those studies show that a majority of Blacks usually vote for winning candidates, have been rejected in favor of studies of elections involving head-to-head candidacies between minorities and Whites.

Minority District Terminology

In determining whether voters can establish a violation of Section 2 of the Voting Rights Act or whether an electoral change or procedure is entitled to preclearance under Section 5 of the act, the courts have employed several different terms. Among the most-frequently used are “majority-minority districts,” “effective minority districts” and “influence districts.”

Majority-Minority Districts

A majority-minority district in the voting rights context is a district in which the majority of the population is either African American, Hispanic, Asian or Native American.

In Thornburg v. Gingles, the U.S. Supreme Court held that, in order to succeed on a vote dilution claim under Section 2, plaintiffs must establish that a minority group is sufficiently large and geographically compact to constitute a majority in a single member district. The courts, however, are divided about what “characteristic of minority populations (e.g., age, citizenship) ought to be the touchstone for proving a dilution claim ... .”

Some courts have held that a minority group must be able to constitute a majority of a district’s voting age population. Other courts have held that a minority group must constitute a majority of eligible voters, i.e., voting-age citizens in a district. Still other courts have held that Gingles requires only that a minority group constitute barely more than 50 percent of the total population of a district.

Effective Minority Districts

An effective minority district is one that contains sufficient population to provide the minority community with an opportunity to elect a candidate of its choice. In early voting rights litigation a rule of thumb developed (in light of statistical analysis) that a district needed to contain a minority population of 65 percent in order to provide minority voters an opportunity to elect candidates of their choice. In more recent cases, courts generally have recognized that the minority percentage that is necessary to provide minorities an opportunity to elect their candidate of choice varies by jurisdiction and minority group.

A district in which minority voters have elected their preferred candidates is considered an effective minority district, even if the district contains less than a majority of the minority population. Jurisdictions are not required to create majority-minority districts in areas where minority voters have been successful in electing their preferred candidates. “Only if apportionment ... has the effect of denying a protected class the opportunity to elect its candidate of choice does it violate § 2; where such an effect has not been demonstrated, § 2 simply does not speak to the matter.” If minority voters were able to elect candidates of their choice from a district, minority plaintiffs would be unable to establish legally significant racial bloc voting that usually defeats the minority’s preferred candidate.

On the other hand, a majority-minority district is not necessarily an effective minority district. Thus, the failure of a minority group to constitute a majority in a district does not necessarily preclude a vote dilution claim, nor does the failure of a jurisdiction to create a geographically compact majority-minority district where reasonably possible necessarily give rise to a vote dilution claim. The critical elements are whether it is possible to create an effective minority district and whether minority voters have had success in electing candidates of their choice.

Influence Districts

An influence district is a district in which the minority community, although not sufficiently large to elect a candidate of its choice, is able to influence the outcome of an election and elect a candidate who will be responsive to the interests and concerns of the minority community.

In Armour v. Ohio, the Court found that the minority community of Youngstown, Ohio, although too small to constitute a majority in a state House district, had been illegally fragmented. The Court ordered the creation of a district containing an African American population of approximately 35 percent. According to the Court:

Defendants go to great lengths to demonstrate that based upon racial voting patterns plaintiffs will not be able to elect a black candidate without a majority of black voters in the redrawn district. However, defendants misapprehend the requirements of the Voting Rights Act. The issue is not whether the plaintiffs can elect a black candidate, but rather whether they can elect a candidate of their choice. We believe that they can. In a reconfigured district, plaintiffs will constitute nearly one-third of the voting age population and about half of the usual Democratic vote. Therefore, the Democratic Party and its candidates will be forced to be sensitive to the minority population by virtue of that population’s size . . . [W]e find that plaintiffs could elect a candidate of their choice, although not necessarily of their race, in a reconfigured district.

The Supreme Court has declined several invitations to determine whether the Voting Rights Act permits influence claims. In addition, several lower courts have held that influence claims do not present a cognizable Section 2 claim.

The courts that have recognized the validity of an influence claim have focused on whether the minority community has sufficient numbers to elect a candidate who will be responsive to their interests and concerns.

Although there is no general agreement on what size the minority community needs to be to have influence in a district, there are several approaches that courts have addressed.

Maximizing influence in a single district. Under this theory, the goal is to maximize the minority community’s influence in a single district by incorporating as many minority members as possible in a district. To succeed on this claim, minority plaintiffs would need to establish that they lack any influence in the existing districts and that consolidating the minority community would increase their influence. If the minority community already had the ability to influence the outcome of the election in a district, increasing the minority population would not increase minority influence and may, in fact, have the effect of diluting minority influence by reducing the number of districts in which minority voters exhibit influence.

Influence districts in lieu of majority-minority districts. In Rural West Tennessee African American Affairs Council Inc. v. McWherter, the Court, in rejecting a Section 2 challenge to Tennessee’s state legislative districts, held that creating an additional majority-minority district would likely have the effect of reducing the overall influence of the minority community.

Black voters in the influence districts have not necessarily been deprived of the opportunity to vote for candidates of their choice, even if they do not have the opportunity to elect what some would consider a perfect candidate, i.e., a candidate of their race. Furthermore, the plaintiffs have not demonstrated that replacing two of the influence districts with one majority minority district would reduce vote dilution. To the contrary, it appears as though black voters might have more influence on the legislative process with two strong influence districts than they would with one additional majority minority district.

Creating effective districts. An effective minority district that is less than a majority of a minority population could be considered a minority influence district, since the minority community would be unable to elect their preferred candidate without white votes.