In the case of Allen v. Milligan, the Supreme Court upheld a district court preliminary injunction that invalidated Alabama’s Congressional districting plan, which the Court determined to violate Section 2 of the Voting Rights Act. The Court ordered an additional majority-minority district, based on a theory of vote dilution.
In his opinion for the Court, Chief Justice Roberts asserted that the litigation was “not about the law as it exists,” but “about Alabama’s attempt to remake our Section 2 jurisprudence anew.” Citing stare decisis, the Court “decline[d] to recast…Section 2 case law.” The Court labeled its decision “a faithful application of our precedents” and discounted concerns that its decision “impermissibly elevate[d] race in the allocation of political power.”
The Court was referring to Thornburg v. Gingles, the first Supreme Court case to interpret the 1982 amendment to Section 2 of the VRA, also known as the “Dole Compromise.” Amended Section 2(a) bars the imposition of any “standard, practice, or procedure” that “results in a denial or abridgement of the right … to vote.” Although the term “vote dilution” does not appear in Section 2, the Court in Gingles held that Section 2 applied to substantive claims of vote dilution.
As voting rights expert James Blumstein explains in a new article, under Section 2(b), a voting system is not equally open if members of one race “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Additionally, it specifically states that racial proportionality cannot serve as a benchmark for establishing liability under the VRA.
Blumstein’s analysis of Gingles shows that the Court relied on the “elect representatives of choice” provision of Section 2(b) to hold that Section 2 is violated under a vote dilution theory where an “electoral structure operates to minimize or cancel out” minority voters’ “ability to elect their preferred candidates.”
He argues that, ultimately, Gingles does not address or answer the “critical question” – whether a claim of substantive vote dilution is freestanding, or whether it is contingent on or linked to other process-based values as set out in amended Section 2(b).
“If the ability ‘to elect representatives of…choice’ provision, which undergirds the vote dilution claim, is freestanding, then some core value must inform the meaning of the vote dilution concept. After all, one cannot sensibly think about whether something is “diluted” unless one has a benchmark of what an undiluted outcome would be,” he writes.
In deciding Allen, Blumstein notes, the Supreme Court overlooked the case of Chisom v. Roemer, where the Court rejected a freestanding vote dilution approach. He argues that Allen v. Milligan necessitated a clarification of the relationship between Chisom and Gingles, rather than an exclusive focus on Gingles.
“Under Chisom, the problem of identifying a core value and the risk of developing a substantive, race-based entitlement–widely disavowed in the debates surrounding amended Section 2–are largely obviated,” Blumstein writes. “The vote dilution inquiry remains, but not as a freestanding, substantive principle.”
He argues that in pending Section 2 cases, the courts should “vacate prior judgments and proceed for analysis under Chisom,” which would require parties to address if a lack of “evenhanded” opportunity to participate in the political process exists. “Only if plaintiffs can carry this burden should the District Court examine the question of vote dilution.”
“The Case of the Missing Case: How Neglecting Chisom v. Roemer Leaves Section 2 of the Voting Rights Act Analytically at Sea,” appears in the William & Mary Law Review, Volume 66, No. 2. James Blumstein is the University Distinguished Professor of Constitutional Law and Health Law & Policy at Vanderbilt Law School.
