Professor Pamela S. Karlan

Kenneth and Harle Montgomery Professor of Public Interest Law
Stanford University School of Law
May 16, 2006

Testimony of Pamela S. Karlan
Kenneth and Harle Montgomery Professor of Public Interest Law
Co-Director, Stanford Law School Supreme Court Litigation Clinic
Associate Dean for Research and Academics
Stanford Law School

Before the Senate Committee on the Judiciary

Thank you for giving me the opportunity to testify today. The Voting Rights Act of 1965
is rightly celebrated as the cornerstone of the Second Reconstruction that, a century after the
Civil War and the enactment of the Thirteenth, Fourteenth, and Fifteenth Amendments, finally
began the full integration of black Americans into the political life of this nation. But it is
critical to remember that the Voting Rights Act was part of the Second Reconstruction: the First
Reconstruction, which at one point saw levels of voter turnout among black men that would be
the envy of any state today1 and numbers of black state legislators in the south that exceed the
number elected in the decade after this Court last amended the Voting Rights Act,2 ultimately
gave way to cynical political compromises within Congress, judicial indifference to minority
voting rights and a complete disenfranchisement of black Americans in the south that ended only
after the massive struggle of a Civil Rights Movement whose veterans, many of whom bear
physical scars from their attempts to help fellow citizens register to vote, are among the current
Members of Congress.
So the history that gave rise to the Voting Rights Act of 1965 is not ancient history. It is
far closer to current events. I have not yet, I hope, reached the midpoint of my career as a voting
rights attorney, and I have represented individuals, in cases since Congress last amended and
extended the Act in 1982, involving claims of discriminatory registration practices, poll taxes,
voter purges, registration requirements, majority-vote requirements, apportionments, criminal
prosecutions for voting rights activism, and the like.
2
I know that the record before Congress is replete with examples of the continuing denial
of the ability to participate effectively and fully, not only to African Americans but also by
Latinos, Native Americans (for whom political conditions in South Dakota, a jurisdiction
partially covered by section 5, are disturbingly reminiscent of the pre-1965 Deep South), and
citizens with limited English proficiency. I strongly support renewal of the expiring temporary
provisions of the Voting Rights Act. In my testimony, rather than focusing primarily on the
evidence of the continuing effectiveness of, and need for, section 5, I shall focus on a set of
largely legal questions, regarding the constitutionality of the proposed extension of section 5's
preclearance requirement and the proposed amendments to section 5 that respond to the Supreme
Court's decisions in Reno v. Bossier Parish, 528 U.S. 320 (2000) (Bossier Parish II), and
Georgia v. Ashcroft, 539 U.S. 461 (2003). In brief, my conclusions are:
1. Congressional power is at its constitutional maximum when Congress acts to protect
the voting rights of minority citizens, particularly when legislation resolves otherwise difficult
and contested questions about the best means for achieving political equality.
2. A congressional conclusion that the extension of section 5 serves an important
deterrent function need not rest on what has been referred to as "trial-type" evidence of current
constitutional violations.
3. The amendment of section 5 to overturn the Supreme Court's interpretation in
Bossier II of which sorts of racially tainted "purpose" are impermissible causes no constitutional
difficulty whatsoever, since the amendment only forbids states from making changes that would
themselves violate the Fourteenth or Fifteenth Amendments.
4. It is well within Congress's power to decide, with respect to the question how section
For the benefit of the Committee, I have appended to this testimony t 3 wo articles that I have
published, the first addressing the question of congressional power regarding voting rights under the
Reconstruction Amendments' enforcement clauses (Pamela S. Karlan, Two Section Twos and Two Section
Fives: Voting Rights and Remedies After Flores, 39 Wm. & Mary L. Rev. 725 (1998)) and the second
analyzing the Supreme Court's decision in Georgia v. Ashcroft (Pamela S. Karlan, Georgia v. Ashcroft and
the Retrogression of Retrogression, 3 Election L.J. 21 (2004)).
4 In 1965, Congress relied expressly on its powers under section 5 of the Fourteenth
Amendment (as opposed to under section 2 of the Fifteenth Amendment) only with respect to the suspension
of literacy tests with respect to the voting eligibility of citizens educated in U.S.-flag schools where the
language of instruction was not English. In later years, however, Congress has made clear that it is relying
on its "14/5" enforcement powers with respect to the entire Act.
5 Michael McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores,
111 Harv. L. Rev. 153, 182 (1997) (quoting Cong. Globe, 42d Cong., 2d Sess. 525 (1872)).
3
5 ought to be construed that preclearance authorities should focus on the ability of minority
citizens actually to elect candidates of their choice rather than on more nebulous factors such as
their ability to influence the post-electoral governance process.3
I. Congressional Power Is At Its Constitutional Maximum When Dealing With the Issue of
Providing Minority Voters With Full, Equal, and Effective Access to the Political
Process, Broadly Understood
Each time that Congress has taken up the Voting Rights Act of 1965, it has relied on its
powers under the enforcement clauses of the Fourteenth and Fifteenth Amendments.4 Those
amendments recognized a special role for Congress, as opposed to the courts, in protecting
individual rights. As then-Professor Michael McConnell has explained:
Section Five of the Fourteenth Amendment was born of the fear that the judiciary
would frustrate Reconstruction by a narrow interpretation of congressional power.
. . . As Republican Senator Oliver Morton explained: "the remedy for the
violation of the fourteenth and fifteenth amendments was expressly not left to the
courts. The remedy was legislative, because in each the amendment itself
provided that it shall be enforced by legislation on the part of Congress."5
The Supreme Court has continued to recognize that special role when it comes to the
There is a voluminous academic criti 6 cism regarding the Court's reliance on the eleventh
amendment to preclude suits based not on diversity of citizenship but rather on the presence of a federal
question, and at virtually every point over the last forty years, the Court has been divided on this question 5-4
despite a nearly complete turnover in its membership.
4
protection of fundamental rights and traditionally excluded groups. In City of Boerne v. Flores,
521 U.S. 507 (1997), the Court observed that a distinction exists between "measures that remedy
or prevent unconstitutional actions and measures that make a substantive change in the
governing law." Id. at 519. And it recognized that "Congress must have wide latitude" with
respect to measures that fall in the first - remedial or prophylactic - category.
In Boerne itself, the Court pointed to the Voting Rights Act of 1965 - and, in particular,
Congress's decision to suspend literacy tests (first, only in section 5-covered jurisdictions, and
then nationwide) - as appropriate legislation under the Fourteenth Amendment, even though the
provisions clearly "prohibit[ed] conduct which [was] not itself unconstitutional and intrude[d]
into 'legislative spheres of autonomy previously reserved to the States.'" Id. at 518 (quoting
Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976)).
The Term before Boerne, in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996),
the Supreme Court held that Congress lacks the power to use its Article I powers (such as the
commerce power) to abrogate the sovereign immunity states enjoy against lawsuits by private
citizens.6 In the decade since Seminole Tribe and Boerne, the Supreme Court has frequently
revisited the question of congressional power, and although it may be somewhat premature, even
now, to say that the dust has settled completely, the following principles articulated in the
decided cases may be helpful in understanding the scope of Congress's power to amend and
extend the Voting Rights Act.
First, the Court has drawn a sharp distinction between the scope of Congress's regulatory
5
power, to which it continues to give broad effect, and Congress's remedial arsenal, which
Seminole Tribe and its progeny have narrowed. In cases such as Board of Trustees v. Garrett,
531 U.S. 356 (2001), Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000), and Alden v. Maine,
527 U.S. 706 (1999), the Court expressly noted that Congress could bind the state officials and
agencies involved and require them to follow federal law. What it could not do was enforce
those constraints by authorizing private damages actions. The Alden Court explicitly compared
private damages lawsuits, which it held foreclosed by the Eleventh Amendment, to lawsuits
brought by the United States to enforce individuals' rights, noting that "[s]uits brought by the
United States itself require the exercise of political responsibility," 527 U.S. at 756, which brings
them within the "plan of the [Constitutional] Convention" and "subsequent constitutional
amendments" regarding the relationship between the federal and state governments.
Second, with respect to Congress's power under the Fourteenth and Fifteenth
Amendments, the Court has not only continued to recognize the vitality of Fitzpatrick v. Bitzer,
but has further held that congressional remedial and prophylactic power is at its strongest when
Congress acts to remedy or prevent the kinds of practices that the Court has subjected to
heightened judicial scrutiny. Put in simple terms, when Congress acts to protect a fundamental
right or when it acts to protect a suspect or quasi-suspect class, its powers are broader than when
it acts to promote equality more generally. Thus, in Tennessee v. Lane Tennessee v. Lane, 541
U.S. 509 (2004), the Court upheld Congress's abrogation of states' sovereign immunity under
Title II of the Americans with Disabilities Act with respect to the fundamental right of access to
the courts, and in Nevada Dep't of Human Resources v. Hibbs, 538 U.S. 721 (2003), it upheld
Congress's abrogation of states' sovereign immunity under the Family and Medical Leave Act
Article I, § 4 provides that "[t]he Times, Places an 7 d Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any
time by Law make or alter such Regulations, except as to the Places of chusing Senators."
6
because the act was intended to prevent sex discrimination.
Third, in a case whose bearing on the constitutionality of the Voting Rights Act has so far
received little attention, Vieth v. Jubelirer, 541 U.S. 267 (2004), Justice Scalia suggested that
even when judges find equal protection clause-based challenges to political gerrymanders
nonjusticiable - because they cannot discern a manageable judicial standard for analyzing such
claims - Article I, § 4 (the "elections clause")7 empowers Congress to deal with such issues. 541
U.S. at 275-76 (plurality opinion). Part of the reason the Supreme Court has grappled with the
justiciability of political gerrymandering claims for nearly forty years is precisely because the
issue calls on courts to decide among hotly contested principles of political philosophy. To give
just one example that bears on the proposed amendment to section 5 responding to Georgia v.
Ashcroft, people active in and knowledgeable about politics differ vociferously about whether, in
crafting electoral districts, political fairness is better ensured by drawing each district to be as
competitive as possible (which increases both the chances that any individual voter will cast a
decisive ballot and the risk that small changes in electoral preferences can produce grossly
disproportionate legislative bodies) or by drawing districts that are predictably controlled by
identifiable blocs of voters (which can produce proportional representation of the blocs within
the legislative body but which results in larger numbers of voters casting essentially
meaningless, or "wasted," votes).
Taken together, these decisions suggest that congressional power is at its apogee when
Congress acts to protect fundamental rights, to protect suspect or quasi-suspect classes, to deal
7
with issues relating to politics and political value judgments that are relatively unamenable to
judicial resolution under the Constitution alone, and does so through mechanisms that "require
the exercise of political responsibility" by the federal government.
All four of these factors apply to the bill now before Congress. First, the Supreme Court
has recognized, for over a century, that the right to vote is a "fundamental political right, because
preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886); see also, e.g., Bush v.
Gore, 531 U.S. 98, 104 (2000) (per curiam); Kramer v. Union Free School Dist., 395 U.S. 621,
627 (1969); Harper v. State Board of Elections, 383 U.S. 663, 667 (1966). Second,
discrimination against the groups protected by the Voting Rights Act is subject to strict scrutiny.
Third, the Act involves an area - regulation of the political process - that both raises important
issues of political fairness that are not fully determined by the sweeping commands of sections 1
of the Fourteenth and Fifteenth Amendment and that are particularly within the expertise of
politicians.
Finally, the preclearance regime of section 5 represents a quintessential exercise of
political responsibility. In replacing case-by-case adjudication directly under the Constitution
with an administrative regime designed to deter as well as to remedy denials of the right to vote,
Congress (and ultimately the executive branch in the course of administrative preclearance)
finally exercised the power it had been given by section 5 of the Fourteenth Amendment and
section 2 of the Fifteenth Amendment to enforce the voting rights of racial minorities.
Nor does the preclearance regime run afoul of general federalism concerns. First, the
Supreme Court has repeatedly turned aside constitutional challenges based on the structure of the
preclearance regime itself. See, e.g., Lopez v. Monterey County, 525 U.S. 266 (1999); City of
8
Rome v. United States, 446 U.S. 156 (1980); South Carolina v. Katzenbach, 383 U.S. 301
(1966). In Lopez, the Court stated that while "the Voting Rights Act, by its nature, intrudes on
state sovereignty[, t]he Fifteenth Amendment permits this intrusion." 525 U.S. at 284-85. And
the permissible intrusion involves not only the requirement of preclearance, but also the
imposition of the burden of proof on the covered jurisdiction and the further substantive
requirement that the jurisdiction prove not only the absence of a discriminatory purpose, but also
that it prove that the proposed change will have no discriminatory effect. See id. at 283.
Second, and more generally, the Fourteenth and Fifteenth Amendments, by their very
nature, intrude on state sovereignty. Indeed, that is precisely what they were intended to do, as
the late Chief Justice explained in his opinion for the Court in Fitzpatrick v. Bitzer, the
amendments marked a profound "shift in the federal-state balance." While decisions such as
South Carolina v. Katzenbach have "sanctioned intrusions by Congress, acting under the Civil
War Amendments, into the judicial, executive, and legislative spheres of autonomy previously
reserved to the States," that "expansion of Congress' powers - with the corresponding diminution
of state sovereignty - [was] intended by the Framers and made part of the Constitution upon the
States' ratification of those Amendments." 427 U.S. at 455-56.
Third, with respect to the application of the Voting Rights Act's procedural and
substantive commands to the states' conduct of elections to federal office, Congress' power
under Article I is plenary, and states have no countervailing constitutional sovereignty interest at
all. As the Supreme Court explained in U.S. Term Limits v. Thornton, 514 U.S. 779 (1995), the
states' power here derives entirely from power delegated to them by Article I of the Constitution.
The elections clause has long been interpreted to give Congress wide-ranging power over
9
congressional elections. In its most recent decision discussing the elections clause, Cook v.
Gralike, 531 U.S. 510 (2001), the Supreme Court stated, "in our commonsense view [the] term
["manner of holding elections"] encompasses matters like 'notices, registration, supervision of
voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties
of inspectors and canvassers, and making and publication of election returns.'" Id. at 523-24
(emphasis added) (quoting Smiley v. Holm, 285 U.S. 355, 366 (1932)). The list of practices that
the Supreme Court and the lower federal courts have found within the scope of Congress'
election clause power is broad indeed. See, e.g., Roudebush v. Hartke, 405 U.S. 15, 24-25
(1972) (authority to regulate recount of elections); United States v. Gradwell, 243 U.S. 476, 483
(1917) (full authority over federal election process, from registration to certification of results);
In re Coy, 127 U.S. 731, 752 (1888) (authority to regulate conduct at any election coinciding
with a federal contest); Ex parte Clarke, 100 U.S. 399, 404 (1879) (authority to punish state
election officers for violation of state duties vis-a-vis congressional elections).
The elections clause assumes, in the first instance, that states will enact these regulations
themselves. But as the Court explained in Foster v. Love, 522 U.S. 67 (1997):
The Clause is a default provision; it invests the States with responsibility for the
mechanics of congressional elections, but only so far as Congress declines to preempt
state legislative choices. Thus it is well settled that the Elections Clause
grants Congress the power to override state regulations by establishing uniform
rules for federal elections, binding on the States. The regulations made by
Congress are paramount to those made by the State legislature; and if they
conflict therewith, the latter, so far as the conflict extends, ceases to be operative.
Id. at 69 (internal quotation marks and citations omitted). As the Foster Court went on to say, the
clause gives Congress "'comprehensive' authority to regulate the details of elections, including
the power to impose 'the numerous requirements as to procedure and safeguards which
10
experience shows are necessary in order to enforce the fundamental right involved.'" Id. at 72
n.2 (emphasis added) (quoting Smiley v. Holm, 285 U.S. at 366)). See also Cook, 531 U.S. at
522 ("The federal offices at stake aris[e] from the Constitution itself. Because any state
authority to regulate election to those offices could not precede their very creation by the
Constitution, such power had to be delegated to, rather than reserved by, the States. . . . No other
constitutional provision gives the States authority over congressional elections, and no such
authority could be reserved under the Tenth Amendment. By process of elimination, the States
may regulate the incidents of such elections, including balloting, only within the exclusive
delegation of power under the Elections Clause.") (internal quotations and citations omitted).
This congressional primacy is reflected in recent decisions uniformly rejecting tenth amendmentbased
challenges to congressional action that asserted that the expansive voter registration
practices of the Motor Voter law unconstitutionally commandeered state resources. See, e.g.,
ACORN v. Miller, 129 F.3d 833 (6th Cir. 1997); ACORN v. Edgar, 56 F.3d 791 (7th Cir. 1995);
Voting Rights Coalition v. Wilson, 60 F.3d 1411 (9th Cir. 1995), cert. denied, 516 U.S. 1093
(1996).
A long series of cases, mostly involving statutes that criminalize various forms of
election-related misconduct, state that Congress' power under the elections clause extends to
regulation of all aspects of an election conducted even in part to select members of Congress. In
the most recent reported case to address this issue, United States v. McCranie, 169 F.3d 723 (11th
Cir. 1999), the Court of Appeals upheld the convictions of two men charged with vote buying in
primary elections for county commission and sheriff that appeared on the same ballot as
uncontested primaries for United States Senate and House of Representatives. The Court of
11
Appeals' language in rejecting the defendants' claim that there was no federal jurisdiction is
fairly typical of the genre:
[T]he federal election fraud statutes were implemented to protect two aspects of a
federal election: the actual results of the election and the integrity of the process
of electing federal officials. In the present case, we agree with the government
that McCranie's and Jones' fraudulent conduct corrupted the election process, if
not the election results.
Moreover, the government maintains, and we agree, that the Constitution's
Necessary and Proper Clause, (Art. I, § 8, cl.18), along with Art. I, § 4,
empowers Congress to regulate mixed elections even if the federal candidate is
unopposed.
Id. at 727. This ability to regulate "mixed" elections gives congressional regulation some extra
leverage in protecting voting rights in elections for state and local office as well. Thus, for
example, the federal anti-intimidation statute, 42 U.S.C. § 1971, that was part of the pre-1965
Voting Rights Act, protects voters even if the real motive or effect of intimidating them has to do
with elections to non-federal offices.
II. Extension of Section 5 Constitutes Appropriate Legislation Under the Enforcement
Clauses of the Fourteenth and Fifteenth Amendments
Under City of Boerne, legislation constitutes appropriate enforcement of the provisions of
the Reconstruction era amendments if there is "congruence and proportionality between the
injury to be prevented or remedied and the means adopted to that end." 521 U.S. at 520. As far
as I am aware, the questions that have been raised with respect to whether extension and
amendment of the Act is within Congress's power fall largely into two categories. First, section
Under section 5 as construed by the Court in Bossier Parish 8 II, the Act prohibits only those
changes undertaken for a racially retrogressive purpose, but does not reach other racially discriminatory
purposes, such as a racially driven desire to perpetuate the existing level of minority exclusion. The proposed
amendment would make section 5 reach all purposeful racial discrimination. Since, as I explain below, all
purposeful discrimination violates either the Fourteenth or Fifteenth Amendment, the proposed Bossier Parish
II "fix" raises no serious constitutional questions.
9 I explore this point at greater length in the attached article.
12
5 goes beyond prohibiting changes made for discriminatory purposes8 to reach changes that will
have a retrogressive effect. Some individuals have questioned whether the prohibition of
conduct that is not itself unconstitutional is congruent and proportional. As I have already
shown in the prior section, however, the Court has squarely upheld the use of "effects tests,"
both under the Voting Rights Act itself in Lopez and City of Rome and in post-Boerne cases such
as Tennessee v. Lane and Nevada v. Hibbs where Congress is trying to prevent infringement of
fundamental rights or discrimination against protected classes. Thus, nothing about the
continued imposition of an effects test raises any new constitutional questions.9 Particularly
because the Supreme Court has held, expressly in the context of constitutional voting rights
cases, that the effects of a challenged practice are powerful evidence of the intent with which it
was adopted or maintained, see Rogers v. Lodge, 458 U.S. 613 (1982), evidence of the continued
use of voting practices and procedures that have the effect of denying minority citizens equal
access to the political process is relevant to assessing the continued risk of constitutional
violations in the absence of strong prophylactic measures such as section 5. And this conclusion
is reinforced by a point of which Congress was well aware when it amended section 2 of the
Voting Rights Act in 1982 to embrace an effects test: requiring findings of purposeful race
discrimination in order to remedy the continued political exclusion of minority citizens can
actually exacerbate racial tensions. Thus, one reason for the enactment of section 2 was to avoid
The year before the Voting Rights Act was passed, the 10 Twenty Fourth Amendment forbid
conditioning the right to vote in elections for federal office on payment of "any poll tax or other tax," and the
next year, in striking down Virginia's attempt to circumvent the amendment by imposing a certificate of
residency requirement on citizens who sought to register without paying the commonwealth's poll tax, the
Supreme Court stated that "[t]he Virginia poll tax was born of a desire to disenfranchise the Negro." Harman
v. Forssenius, 380 U.S. 528, 543 (1965). In Harper, the Supreme Court struck down imposition of a poll tax
in any election as a violation of the fundamental right to vote.
13
requiring the kind of judicial findings that would undermine political progress. Thus, Congress
has made the eminently sensible judgment that the best way of combating the lingering effects of
past, unconstitutional racism in the political process is not to require name-calling and
condemnation in the litigation process but to simply bring about the effective integration of
minority citizens into the political process.
Second, some individuals have suggested that extension of section 5 raises questions of
congruence and proportionality because it leaves in place for another significant period of time a
preclearance regime that applies to only a selected group of covered jurisdictions that are defined
in terms of a triggering formula developed in the 1960's and 1970's.
The contours of section 5's coverage are a product of principle mixed with pragmatic
politics. To be sure, not every jurisdiction with a history of pervasive racial discrimination in
voting was originally covered. For example, the trigger rested on use of a literacy test, and not a
poll tax, even though there was substantial evidence of the discriminatory purpose and effect of
poll taxes.10 Thus, section 5 provided protection to blacks on the Mississippi side of the Delta
but not on the opposing shore in Arkansas. And Texas became a covered jurisdiction only in
1975, as a result of its discrimination against language minorities. Still, the trigger did a
reasonably good job of picking up most, if not all, the places with a history of pervasive
violations of the Fourteenth and Fifteenth Amendments. See South Carolina v. Katzenbach, 383
Indeed, I understand that extensive evidence about 11 the scope, operation, and effectiveness
of section 4 bailout has been presented during hearings before the House Judiciary Subcommittee on the
Constitution, and incorporated into this Committee's record.
14
U.S. at 331 ("Legislation need not deal with all phases of a problem in the same way, so long as
the distinctions drawn have some basis in practical experience.").
"Bailout" under section 4 of the Act has been available to jurisdictions brought within the
triggering formula that can show their compliance with both the Act and with the underlying
constitutional commands for fair and inclusive political processes. I know you will hear
testimony on this legislative incentive for compliance from many individuals with far more
expertise on this question than I.11 But it is important to note that under section 3(c) of the Act,
"bail-in" - that is, judicial orders bringing jurisdictions that were not covered by the trigger
within the special provisions of section 5 - has also been available. I was involved in one such
case in the late 1980's. In Jeffers v. Clinton, 740 F. Supp. 585 (E.D. Ark. 1990), aff'd, 498 U.S.
1019 (1991), a three-judge federal district court ordered that the state of Arkansas seek
preclearance of any new majority-vote (or runoff) requirements before putting them into place,
because it found that the state had "committed a number of constitutional violations of the voting
rights of black citizens" related to such requirements. Id. at 586; see id. at 601-02. See also
Sanchez v. Anaya, Civ. No. 82-0067M (D.N.M. Dec. 17, 1984) (three-judge court) (requiring
preclearance of any new redistricting plan for a period of ten years); McMillan v. Escambia
County,559 F. Supp.720, 727 (N.D. Fla. 1983) (referring to the Fifth Circuit's imposition of a
preclearance requirement on the country under section 3(c)). Thus, beyond periodic renewal, the
Act provides two routes for tailoring which jurisdictions ought to be covered that give
jurisdictions and courts the opportunity to consider the Act's coverage more surgically.
Nothing about Boerne 12 and its progeny address directly the question whether
appropriate remedial and prophylactic measures - adopted on the basis of a record of a century's worth of
unconstitutional conduct and ineffectual judicial and legislative attempts to resolve the problems by other
means - must be abandoned at some particular moment. As I have already suggested, the record before
Congress is sufficient for you to conclude that that moment has not yet arrived. But there is no general
doctrine of constitutional desuetude that requires abandonment of section 5.
13 This is especially true at the local level, where communities can be relatively small and where
discriminatory changes are likely to escape scrutiny from either national civil rights organizations or -
particularly when the changes involve nonpartisan elections - the organized political parties that often litigate
issues involving state-level or congressional redistricting. Thus, to conclude that section 5 is unnecessary
because minority voters are electing candidates of their choice at the state or national level would be a serious
mistake. And it is worth noting in any event that the record before Congress contains evidence of statewide
redistricting examples of section 5 violations post-2000 Census. See LCCR: Voting Rights in Louisiana
1982-2006 describing Louisiana House of Representatives. et al. v. Ashcroft.
15
The question whether Congress can continue coverage of the already covered
jurisdictions as part of an extension of the Act does not require that Congress conclude that if it
were writing on a completely clean slate today, it would choose the original triggering
formulas.12 Rather, it depends on whether continuing to subject the covered jurisdictions to the
preclearance regime is congruent and proportional to preventing future constitutional injury.
It is critical to understand that section 5 operates in two distinct ways. First, as a formal
matter, section 5 empowers the Department of Justice or a federal district court in the District of
Columbia to block a covered jurisdiction from implementing discriminatory changes it proposes
to make in its voting-related laws. Second, and ultimately more important, section 5 deters
jurisdictions even from seeking to implement such laws by "shift[ing] the advantage of time and
inertia from the perpetrators of the evil to its victims." South Carolina v. Katzenbach, 383 U.S.
at 328. Congress has recognized that individual minority voters, and even minority
communities, may not have the expertise or financial resources to effectively challenge
discrimination in the political process.13 But when a jurisdiction must justify its changes, and
bear the burden of justifying those changes, it is likely to think hard about whether its changes
16
are nonretrogressive. My own experience, helping to ensure that California's state legislative
redistricting after the 2000 census complied with section 5, reinforces my sense, garnered from
discussions with state and local officials and their lawyers in other jurisdictions, that section 5
has a salutary effect in making the political participation of minority voters a central
consideration, rather than an issue relegated to an afterthought.
If section 5 worked perfectly, there would therefore be no section 5 objections, because
covered jurisdictions would simply be deterred. This creates an apparent difficulty because
opponents of section 5, or parties that challenge its constitutionality, will argue that the decline
in the number objections shows that the statute has outlived its usefulness. But the difficulty is
only an apparent, and not an actual, one. It is entirely within Congress's expertise, as a body
composed entirely of elected officials with a sense of how politics actually operates on the
ground, to conclude that section 5 is still necessary to deter future violations, particularly given a
voluminous record of problems that minority voters have continued to face in covered
jurisdictions. The fact that: many of the problems were resolved prior to litigation, that not all
of the e problems are themselves constitutional violations, or that there are other, perhaps
equivalently troubling issues in some non-covered jurisdictions, does not undermine the
continued usefulness of section 5 as one quiver in Congress's arsenal for ensuring equal political
opportunities for minority citizens.
As to when section 5 may become unnecessary, I cannot now give an answer. At least
given current political realities, there would be substantial risks, particularly with respect to
changes within local jurisdictions where racial tensions are often far sharper than at the statewide
or national level, that unconstitutional or illegal discrimination could recur.
17
The effective political integration of minority citizens remains, in many jurisdictions, a
relatively newfound phenomenon. It was really not until after the 1982 amendments to the Act
that minority voters began to elect significant numbers of representatives to many public bodies.
When faced with a claim in 1971, by the Bossier Parish School Board, that it should be released
from various aspects of a desegregation decree because the schools in the ironically named
locality of Plain Dealing had been unitary for a semester, the Fifth Circuit observed that "One
swallow does not make a spring." Lemon v. Bossier Parish School Bd., 444 F.2d 1400, 1401 (5th
Cir. 1971). The fact that Bossier Parish still had not managed political integration a quarter
century later is stark evidence that it may take more time for the advances the Voting Rights Act
has so far produced really to take root. As Georgia v. Ashcroft recognized, one key purpose of
the Voting Rights Act is "to encourage the transition to a society where race no longer matters."
539 U.S. at 490. But we are not yet there. And it is critical to remember that the gains minority
voters have achieved over the last forty years by "pull[ing], haul[ing], and trad[ing] to find
common political ground," Johnson v. De Grandy, 512 U.S. 997, 1020 (1994), have all occurred
in the shadow of section 5, which has given minority voters and their representatives an
invaluable bargaining chip. Our long, bitter, and all-too-recent history of covered jurisdictions'
pervasive indifference and hostility to minority citizens' political aspirations demands something
more than the triumph of hope over experience.
III. The Bossier Parish II and Georgia v. Ashcroft "Fixes" Represent an Entirely Appropriate
Exercise of Congress's Enforcement Power
In Bossier Parish II, the Supreme Court construed section 5's prohibition on the
implementation of changes unless a jurisdiction can show that the change does not have a
18
"discriminatory purpose" to forbid only changes that have a retrogressive purpose. That is,
changes that are purposefully discriminatory, but that do not leave minority citizens worse off,
do not violate section 5.
Such changes do, of course, violate the Constitution. So, for example, a jurisdiction
which currently uses electoral districts from which black voters are unable to elect candidates of
their choice that chooses, after the census, to redraw its districts with the purpose of ensuring a
continued lack of minority electoral success would violate the equal protection clause. A
jurisdiction that prevented minority citizens from voting by locating polling places in
inaccessible locations that then introduced a voter identification procedure designed to keep any
minority voters who managed to find the polling place from actually casting a ballot would
violate the Fifteenth Amendment as well.
Amending section 5 to prohibit all unconstitutional discrimination with respect to the
right to vote, rather than only the subset of unconstitutional discrimination that is also
retrogressive poses no constitutional difficulties under any conceivable theory of congressional
power.
The Georgia v. Ashcroft "fix" responds to a different sort of problem. In that case, the
Supreme Court held that section 5's current language "gives States the flexibility to choose one
theory of effective representation over the other." 539 U.S. at 482. Thus, the Court recognized
that the decision about how best to protect minority voters' right to fair, equal, and effective
representation involves a choice among very different theories.
It is not my aim here to explain why Congress should embrace the theory that minority
voters are most effectively represented when they can actually elect candidates of their choice -
19
a theory that groups with control over the redistricting process almost always adopt for
themselves - rather than simply having some "influence" over the election of candidates
sponsored by, and beholden to, other communities. To some extent, Congress has already
embraced that theory in section 2 of the Voting Rights Act, which protects the right both to
"participate" and to "elect." Other witnesses before this Committee will lay out in far greater
detail this issue, and the House Judiciary Subcommittee on the Constitution has heard substantial
evidence on this question. I want simply to highlight one point to which I have already adverted.
Once we recognize that this is a choice among theories, Congress has the constitutional power to
make that choice. Congress, and not the courts, decided in 1842 that congressional elections
should be conducted from single-member districts - and has since then neither retreated to
permitting elections at large nor adopted any of the systems of proportional representation used
by most other Western democracies - thereby embracing a particular "theory of representation"
from among the constitutionally available ones. So too, Congress can choose, particularly in the
context of ensuring equal political opportunity for historically excluded groups, to impose a
standard that looks at changes in the groups' ability to elect candidates of their choice rather than
a more nebulous and speculative standard that poses a threat of once again relegating minority
voters' political aspirations to an afterthought. Particularly in light of Vieth's invitation to
Congress to address difficult questions of fair representation, the Georgia v. Ashcroft "fix" lies
well within your constitutional competence.
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ELECTION LAW JOURNAL
Volume 3, Number 1, 2004
© Mary Ann Liebert, Inc.
Georgia v. Ashcroft and the Retrogression
of Retrogression
PAMELA S. KARLAN
21
SECTION 5 OF THE VOTING RIGHTS ACT OF 19651
has served as a major legal engine for transforming
American democracy over the last
forty years. Its power stems from two modifications
of the conventional legal process for
safeguarding minority voting rights. First, section
5 forbids covered jurisdictions2 from making
any changes in their election laws unless
and until the laws first receive federal approval,
3 and places the burden of proving that
the new law will have neither a discriminatory
purpose nor a discriminatory effect on the covered
jurisdiction. The preclearance requirement
"shifts the advantage of time and inertia
from the perpetrators of the evil to its victims."4
Second, section 5 contains a natural benchmark
that preserves the political gains minority voters
have achieved through political or legal action.
The preclearance process measures a proposed
voting practice or procedure against the
existing scheme to determine whether the
change will "lead to a retrogression with respect
to [minority voters'] exercise of the electoral
franchise."5 Thus, "the baseline is the status
quo that is proposed to be changed."6 The
presence of an "objective and workable standard
for choosing a reasonable benchmark"7
reassured the Court that section 5 judgments
would not embroil the courts or the executive
branch in unguided interference with the political
process.
This essay discusses last term's decision in
Georgia v. Ashcroft.8 The Court's opinion fundamentally
alters the preclearance process in
disturbing ways. For several years, the
Supreme Court has been expressing concern
Pamela S. Karlan is Kenneth and Harle Montgomery
Professor of Public Interest Law, Stanford Law School.
Many of the ideas in this article grow out of conversations
with my colleagues in the voting rights bar, particularly
Jim Blacksher, Norman Chachkin, Todd Cox,
Laughlin McDonald, and Ted Shaw, and I thank them for
sharing their insights and experiences. Viola Canales
made several helpful comments on earlier drafts. I presented
an earlier draft of this article at a conference sponsored
by Columbia University and benefited from the discussion
and other papers delivered there.
1 42 U.S.C. § 1973c (1994).
2 Section 4(b) of the Voting Rights Act, 42 U.S.C.
§ 1973b(b) (1994) designates states and political subdivisions
for section 5 coverage if they used a literacy test,
broadly defined (to include, for example, the use of English
language-only election materials in a significantly
non English-speaking community), and voter registration
or turnout in the 1964, 1968, or 1972 presidential elections
dipped below 50 percent of voting age population. Currently,
nine states and parts of seven others are "covered
jurisdictions." See 28 C.F.R. Part 51 App. (2003).
3 Section 5 also limits the fora in which preclearance can
be obtained--administratively through the Department
of Justice or judicially through three-judge federal district
courts convened in the District of Columbia. The unstated
rationale for this specification was to avoid the problem
of underenforcement of voting rights by unsympathetic
southern judges. See, e.g., Samuel Issacharoff, Pamela S.
Karlan & Richard H. Pildes, The Law of Democracy: Legal
Structure of the Political Process 546-47 (rev. 2d ed.
2002) (describing the problem); William Colbert Keady &
George Colvin Cochran, Section 5 of the Voting Rights
Act: A Time for Revision, 69 Ky. L.J. 741, 750-51 (1981)
(describing discussions of this issue in the legislative history).
4 South Carolina v. Katzenbach, 383 U.S. 301, 328 (1965).
See also Beer v. United States, 425 U.S. 130, 140 (1976)
(noting that prior to section 5 "each new law remained in
effect until the Justice Department or private plaintiffs
were able to sustain the burden of proving that the new
law, too, was discriminatory").
5 Beer, 425 U.S. at 141.
6 Reno v. Bossier Parish School Board (Bossier II), 528 U.S.
320, 333 (2000).
7 Holder v. Hall, 512 U.S. 874, 881 (1994).
8 123 S.Ct. 2498 (2003).
about the ways in which section 5 works a substantial
departure "from the traditional course
of relations between the States and the Federal
Government."9 Not surprisingly, the Rehnquist
Court, whose primary legacy is a "federalism
revival" characterized by skepticism
about federal enforcement power under the Reconstruction
Amendments,10 has sought to
cabin section 5. In Presley v. Etowah County Commission,
11 the Court restricted the category of
changes that require preclearance, excluding
changes in "governance." In Presley itself, this
meant that section 5 did not reach a local government
resolution that undercut the settlement
of a section 2 vote-dilution lawsuit. (After
the county had agreed to abandon at-large
elections, the county commission enacted a resolution
stripping the commissioner representing
the newly created majority-black district of
the traditional powers of his office, arguably
leaving the district's residents "even worse off
than they were before entry of the consent decree."
12) And in Reno v. Bossier Parish School
Board (Bossier II),13 the Court held that section
5's prohibition of changes that have a "discriminatory
purpose" bars only changes manifesting
a purpose to retrogress: thus, changes
that merely aim to perpetuate existing levels of
unconstitutional or illegal discrimination cannot
justify denying preclearance. In Bossier II,
this meant that section 5 did not prohibit a
twenty percent black parish with a decadeslong
history of resistance to school desegregation
orders from adopting new district lines for
school board elections that failed once again to
draw any majority-black districts; the prior
plan had not included any majority-black districts
either.
Georgia v. Ashcroft takes a significantly different
tack. It reintroduces the considerations
of governance that Presley seemed to exclude,
transforming them into justifications for approving
plans that decrease minority voters'
ability to elect the representatives of their
choice. And it engages in the kind of noncomparative
purpose analysis that Bossier II
seemed to reject, in a fashion that dramatically
undercuts the statutory burden of proof, a burden
born of long, bitter, and all-too-recent
experience with covered jurisdictions' indifference
and hostility toward the political aspirations
of minority voters.
A BRIEF HISTORY OF REDISTRICTING
IN GEORGIA
Particularly because a key aspect of the
Supreme Court's decision in Georgia v. Ashcroft
is its reliance on the good faith of Georgia's redistricting
officials, it's at least worth remembering
why Georgia is a covered jurisdiction in
the first place.14 When the Voting Rights Act of
1965 was passed, Georgia's population was
roughly one quarter black, but there were only
three black elected officials in the entire state.15
Only 27.4 percent of eligible black adults were
registered to vote,16 and the state had engaged
in a variety of tactics to assure black political
powerlessness. By the summer of 1968, the percentage
of the black population that was registered
to vote had more than doubled, almost
entirely as a result of the Act's suspension of
the discriminatorily administered literacy test,
the activities of federal registrars, and the work
of several civil rights organizations.17
The state's response to the surge of black
voter registration was to adopt new laws to
perpetuate white control over the political process.
Prominent among these were its redistricting
practices. Following the 1970 census,
22 KARLAN
9 Presley v. Etowah County Commission, 502 U.S. 491, 501
(1992). See also, e.g., Reno v. Bossier Parish School Board
(Bossier I), 520 U.S. 471, 480 (1997) (discussing the "serious
federalism costs" imposed by section 5).
10 See Bradley W. Joondeph, Bush v. Gore, Federalism,
and the Distrust of Politics, 62 Ohio St L J 1781, 1784 (2001)
(suggesting that "while the Rehnquist Court's 'federalism
revolution' has imposed new limits on Congress, and
thereby modestly enhanced some aspects of state autonomy,
it has not championed states' political independence
more generally").
11 502 U.S. 491, 510 (1992).
12 Presley v. Etowah County Commission, 869 F. Supp.
1555, 1573 (M.D. Ala. 1994). In this decision, on remand
from the Supreme Court, the district court held that the
challenged resolution violated the terms of the consent
judgment implementing the settlement of the section 2
lawsuit.
13 528 U.S. 320 (2000).
14 For extensive discussion of Georgia's resistance to black
political participation see Laughlin McDonald, A Voting
Rights Odyssey: Black Enfranchisement in Georgia
130-32, 135-38, 141-50, 159-60, 164-72 (2003).
15 See Laughlin McDonald, Michael B. Binford & Ken
Johnson, Georgia, in Quiet Revolution in the South: The
Impact of the Voting Rights Act, 1965-1990, at 67 (Chandler
Davidson & Bernard Grofman eds. 1994).
16 See id. at 75.
17 See McDonald, supra note 14, at 129.
Georgia redrew its congressional and state legislative
district lines. When it submitted the
new plans for administrative preclearance, the
attorney general interposed objections to all
three. The state legislative plans contained a
catalogue of dilutive devices--multimember
districts, numbered posts, majority runoff elections,
and boundary irregularities in areas with
concentrations of black voters.18 The congressional
plan deliberately fragmented the Atlanta
area's large black population among three districts,
and manipulated boundary lines to exclude
the most plausible black candidates from
the district where they stood the best chance of
winning.19 The legislator who proposed the
creation of a 38 percent black district (rather
than a majority-black one) explained his intention
as ensuring the election of "a white, moderate
Democratic Congressman."20 Only after
the attorney general interposed an objection
did the state increase the black percentage in
the Fifth Congressional District to 44 percent
and include the residences of strong black candidates
within the district. While Andrew
Young, a black candidate, was elected to the
seat in 1972 and 1974 (receiving roughly onequarter
of the white vote), a white candidate
was elected in a racially polarized election after
his retirement and held the seat until after
the next redistricting.
The post-1980 round of redistricting was
equally flawed. Once again, the attorney general
objected to both the state legislative and
the congressional district lines. With respect to
the state legislative district boundaries, he concluded
that they fragmented concentrations of
black voters in several areas across the state,
threatening "a significant detrimental impact
on black voting strength."21 That objection created
crucial leverage for drawing a plan that
increased the number of majority-black house
districts from 24 to 30 (of 180) and the number
of majority-black senate districts from 2 to 8 (of
56).22 As for the state's congressional redistricting,
after the attorney general objected to
the state's decision once again to fragment Atlanta's
geographically and politically cohesive
black community, the state sought a declaratory
judgment from a three-judge district court
in the District of Columbia. At trial, the legislative
leaders who had shepherded the plan
to passage--Chairman of the Georgia House
Reapportionment Committee Joe Mack Wilson
and House Speaker Thomas Murphy--"raised
the spectre that a Republican would be elected
from the Fourth District under the Senate
plan," which had created a majority-black adjacent
district.23 But the district court rejected
the defense of "politics, not race." In concluding
that the plan was tainted by intentional
racial discrimination, the court pointed, among
other things to Wilson's announcement, after
meeting with the Department of Justice, that "I
don't want to draw nigger districts,"24 and
Murphy's "racial attitudes" that led him to
"purposefully discriminat[e]" throughout the
process.25
Perhaps by the post-1990 round of redistricting,
Georgia had learned its lesson: the first
state legislative plans it submitted for preclearance
created one additional majority-black
senate district and six additional majority-black
state house seats.26 The Department of Justice
nonetheless refused preclearance until Georgia
created an additional majority-black senate district
and four additional majority-black house
districts. The state complied, and the plan was
precleared. The resolution of a Shaw challenge
to the state's congressional map, however, in-
THE RETROGRESSION OF RETROGRESSION 23
18 See id. at 148. The state responded by redrawing the
state senate districts, thereby creating two majority-black
districts, but failed to cure the problems with the house
plan, so the attorney general interposed a second objection.
Georgia responded to the ensuing lawsuit by the
United States seeking to enjoin use of the unprecleared
plan, by arguing that section 5 should not even cover redistricting.
The Supreme Court unanimously rejected that
claim. See Georgia v. United States, 411 U.S. 526 (1973).
19 See McDonald, supra note 14, at 149.
20 Id. at 150 (quoting Rep. G.D. Adams).
21 Id. at 167 (quoting the objection letter).
22 Since the population of Georgia was 27.4 percent black,
see Georgia Dept. of Human Resources, Vital Statistics
Data Book 1980, tbl. 1 (1982), even the new plan meant
that blacks were underrepresented in the legislature relative
to their presence in the population.
23 Busbee v. Smith, 549 F. Supp. 494, 507 (D.D.C. 1982),
aff'd, 459 U.S. 1166 (1983).
24 Id. at 501.
25 Id. at 510. Judge Harry Edwards--one of the three
judges to sit on the Georgia v. Ashcroft three-judge
court--was also one of the three judges on the three-judge
court in Busbee.
26 See Johnson v. Miller, 929 F. Supp. 1529, 1537 n. 23 (S.D.
Ga. 1996). Georgia's demographic profile in both 1990 and
2000 is discussed by the district court. See Georgia v.
Ashcroft, 195 F. Supp.2d at 38-39. In 1990, 29.96 percent
of Georgia's population was black. See id. at 38.
dicated that the Department should have precleared
the initial state legislative reapportionments,
27 so when plaintiffs brought a Shaw
challenge against the state legislative districts,
Georgia and the Department of Justice returned
to the drawing board. In 1997, the state
adopted, and the attorney general precleared,
new plans that served as the basis for the 1998
and 2000 elections and as the benchmark for
the post-2000 round of redistricting.
GOVERNANCE AS A GOVERNING
CONCERN: THE 2001 GEORGIA STATE
SENATE REDISTRICTING
The post-2000 redistricting was the first one
in which black elected officials--virtually all of
whom were elected from majority-black districts
created as a result of the Voting Rights
Act--played a meaningful role. In the state senate--
the body whose redistricting reached the
Supreme Court in Georgia v. Ashcroft--the 1997
benchmark plan had created eleven state senate
districts with populations that were over 50
percent black, ten of which had black votingage
majorities. By 2000, population shifts
meant that thirteen districts were at least 50
percent black in total population. Twelve of the
thirteen had majority-black voting-age populations,
28 and eleven had elected black senators.29
Democrats controlled the redistricting process
from start to finish.30 According to the
Supreme Court, "the goal of the Democratic
leadership--black and white--was to maintain
the number of majority-minority districts and
also increase the number of Democratic Senate
seats."31 Preservation of the existing majorityminority
districts was important to the Democratic
leadership for several reasons.32 First, the
Democrats could not pass a plan at all without
black senators' support: in the 56-member senate,
there were only 21 white Democrats, along
with 11 black Democrats, and 24 white Republicans.
33 Only a plan that maintained significant
concentrations of black voters in black incumbents'
districts could garner support from
black senators, since they were aware that their
prospects for reelection depended on their being
placed in such districts.34 Second, of course,
the leadership was well aware that the plan
would have to undergo preclearance, and the
conventional understanding of the retrogression
standard made decreasing the number of
majority-black districts risky. If preclearance
were denied and a court-drawn plan were im-
24 KARLAN
27 See Miller v. Johnson, 515 U.S. 900, 923 (1996) (noting
that Georgia's first and second proposed congressional
plans "increased the number of majority-black districts
from 1 out of 10 (10%) to 2 out of 11 (18.18%)" and that
the plans were therefore " 'ameliorative' and could not
have violated § 5's non-retrogression principle"); Abrams
v. Johnson, 521 U.S. 74, 97-98 (1997) (holding that a courtordered
plan under which only 1 of the 11 districts (9%)
was majority-black was non-retrogressive).
28 See Georgia v. Ashcroft, 123 S. Ct. at 2505.
29 The 2000 census also showed that the proportion of
Georgia's population that was black had increased--from
26.96 percent to at least 28.7 percent. Georgia v. Ashcroft,
195 F. Supp. 2d at 39. The reason I say "at least" is that
the 2000 census allowed individuals, for the first time, to
identify themselves as members of more than one racial
group. The complications of this change, which are discussed
at length by both the district court and the Supreme
Court, are not particularly relevant to this article.
30 Not a single Republican in either the house or the senate
voted for any of the plans ultimately adopted. See
Georgia v. Ashcroft, 123 S.Ct. at 2506.
31 Id. at 2505.
32 The notion that enabling black citizens to choose representatives
of their choice was an attractive goal in its
own right seems belied by the tone of the state's description
of the benchmark districts in its brief before the
Supreme Court:
Georgia was left with much of the redistricting
residue of the DOJ's maximization strategy from
1991-92 as it approached redistricting in 2001. The redrawn
House and Senate plans were very similar to
those originally passed by the General Assembly, under
DOJ direction; only the flagrantly unconstitutional
parts were modified.
Brief for Appellants at 9, Georgia v. Ashcroft, 123 S.Ct.
2498 (2003).
33 See Jim Galloway & David Pedered, Lack of Democratic
Support Delays Redistricting Vote, Atlanta J. &
Const., Aug. 9, 2001, at 4E.
34 See Brief Amicus Curiae of Georgia Coalition for the
Peoples' Agenda in Support of Appellees at 8, Georgia v.
Ashcroft, 123 S.Ct. 2498 (2003) (reporting that of 40 blacks
elected to the Georgia legislature under the 1992 plan,
only one was elected from a majority-white district and
that district, which was 42% black, contained the University
of Georgia). Even in the 2002 election, all ten blacks
elected to the state senate were from majority-black districts
as were 34 of 37 black members of the house. And
of the three black representatives from majority-white districts,
one had been elected originally from a majorityblack
district and another was elected from a newly created
multimember district. See id.
posed, the Democrats might have been unable
to attain their partisan interests.35
From the perspective of individual Democratic
senators, there were at least two interests
in play.36 First, each senator had an aggregation-
level interest in how his own district was
constructed: he wanted a seat he could win.
Second, each senator had a governance-level
interest: his post-election power depended significantly
on the overall composition of the senate,
since his ability to obtain a committee
chairmanship or to pass legislation with a partisan
valence depended on there being a Democratic
majority.37
But how to create a majority-Democratic senate?
For the Democrats to preserve, let alone increase,
their representation, they needed to allocate
Democratic voters efficiently among
districts. This posed a problem because of a
dramatic difference in the partisan voting patterns
of black and white voters. While black
voters overwhelmingly preferred Democratic
candidates, white voters strongly supported
Republicans.38 Thus, it would be hard to maintain
Democratic control by creating significant
numbers of overwhelmingly white but majority-
Democratic districts. Most Democratic candidates
would need a significant number of
black voters in their district to stand a reasonable
chance of winning.39
But precisely because a sizeable minority of
white voters were Democrats, the proportion
of a district's electorate that was Democratic
was likely to exceed the proportion that was
black. Consequently, a district with a majorityblack
voting age population was likely to be
overwhelmingly Democratic.40 From the perspective
of maximizing Democratic power,
such a district would "waste" votes. The most
"efficient" use of black voters from the Democratic
perspective might involve creating districts
that were about one-fourth black, since
those districts would have a slim Democratic
majority on election day.41
Democrats were foreclosed from the most efficient
use of black votes by both political and
THE RETROGRESSION OF RETROGRESSION 25
35 For a discussion of the ways in which the prospect of
judicial intervention, with its potential disregard of incumbency
and partisan factors, spurs legislators to compromise,
see Daniel R. Ortiz, Federalism, Reapportionment,
and Incumbency: Leading the Legislature to Police
Itself, 4 J.L. & Pol. 653 (1988).
36 In earlier work, I identified a nested constellation of interests
implicated in voting rights cases: (1) participation--
the entitlement to cast a ballot and have that ballot
counted; (2) aggregation--the choice among rules for tallying
votes to determine election winners; and (3) governance--
the ability to have one's policy preferences enacted
into law within the process of representative
decisionmaking. See Pamela S. Karlan, The Rights To
Vote: Some Pessimism About Formalism, 71 Tex. L. Rev.
1705, 1708 (1993). The latter two interests affect representatives
as well as citizens.
37 See Georgia v. Ashcroft, 123 S.Ct. at 2506. See also Karlan,
supra note 36; Jean-Pierre Benoit & Lewis A. Kornhauser,
Assembly-Based Preferences, Candidate-Based
Procedures, and the Voting Rights Act, 68 So .Cal. L. Rev.
1503 (1995); Jean-Pierre Benoit & Lewis A. Kornhauser,
Social Choice in a Represent