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Documenting Discrimination in Voting: Judicial Findings Under Section 2 of Thevoting Rights Act Since 1982

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Documenting Discrimination in Voting: Judicial Findings Under Section 2 of theVoting Rights Act Since 1982 Final Report of the Voting Rights Initiative University of Michigan Law School Ellen Katz with Margaret Aisenbrey, Anna Baldwin, Emma Cheuse, and Anna Weisbrodt December 2005 The University of Michigan Law School Ann Arbor, Michigan ©2005 Ellen Katz and the Voting Rights Initiative Citations to this report: ELLEN KATZ ET AL., DOCUMENTING DISCRIMINATION IN VOTING:JUDICIAL FINDINGS UNDER SECTION 2 OF THE VOTING RIGHTS ACT SINCE 1982, http://www.votingreport.org (Dec. 2005), reprinted in 39 U. MICH.J.L.REFORM (forthcoming 2006). Citations to the data contained in the VRI Database: Ellen Katz and the Voting Rights Initiative, Voting Rights Initiative Database, www.votingreport.org. The Voting Rights Initiative of the Michigan Election Law Project FACULTY DIRECTOR: Ellen Katz LEAD STUDENT DIRECTOR: Emma Cheuse TECHNICAL DIRECTOR: David Geerdes REPORT CONTRIBUTORS: Margaret Aisenbrey, Anna Baldwin, Krista Caner, Emma Cheuse, Kyle Faget, Joel Flaxman, Alaina Fotiu-Wojtowicz, Adam Gitlin, Dana Kaersvang, Elizabeth Liebschutz, Daniel Pearlberg, Liz Ryan, Jeremy Suhr, Rachel Warnick, Anna Weisbrodt, Sarah Wohlford DATABASE EDITORS: Krista Caner, David Jones, Anna Weisbrodt DATABASE RESEARCH DIRECTORS: Anna Baldwin, Kristen Boike, Sarah Bookbinder, Jennifer Carter, Natalia Cortez, Rachel Dobkin, Bernard Eskandari, Alaina Fotiu- Wojtowicz, Akilah Green, Sonah Lee, Benjamin Potter, Jeremy Schwartz, Rebecca Teitelbaum, Rebecca Torres McNeill, Laura Yockey RESEARCHERS: Bethany Ace, Margaret Aisenbrey, Lara Anthony, Sosun Bae, Adam Blumenkrantz, Kristen Boike, Marisa Bono, Adrienne Brooks, Timothy Caballero, Lucas Caldwell-McMillan, Krista Caner, Ramsey Chamie, Joann Chang, Daniel DeLorenzo, Kyle Faget, Esther Farkas, Thomas Ferrone, Joel Flaxman, Alaina Fotiu-Wojtowicz, Matthew Fox, Mitoshi Fujio-White, Amanda Garcia, Adam Gitlin, Jenna Goldenberg, Arielle Greenbaum, Kyra Hazilla, Jennifer Hill, Sarah Hinchliff, Millicent Hoffman, Neal Jagtap, David Jones, Shari Katz, Craig Komanecki, Poonam Kumar, Joseph Lake, Jeffrey Landau, Grace Lee, Michael Lee, Julianna Lee, Elizabeth Liebschutz, Zachariah Lindsey, Alexandra Magill, Melissa Manning, Megan Mardy, Vannesa Martinez, Kerry-Ann McLean, Mary Mock, Jaime Olin, David Osei, Daniel Pearlberg, Amanda Pedvin, Amanda Perwin, Benjamin Potter, Jennifer Reid, Eunice Rho, Elizabeth Richards, Abby Rubinson, Elizabeth Rucker, Elizabeth Ryan, David Sack, Monica Saxena, Elizabeth Seger, Maneesh Sharma, Karen Shen, Elizabeth Simson, Mia Solvesson, Jessica Stoddard, Jeremy Suhr, Daniel Tenny, Cathy Tran, Genevieve Vose, Kyle Walther, Thomas Ward, Rachel Warnick, Anna Weisbrodt, Jamie Weitzel, Larissa Werhnyak, Cyrus Wilkes, Sarah Wohlford, Joe Wright TECHNICAL ASSISTANCE: Thomas Ferrone, Nicholas George, Adam Gitlin, Naomi Goldberg, Christopher Kirkwood-Watts, Shelley Merkin, Molly Moser, Katherine Redman, Taylor Rielly, Amethyst Smith, Susan West ACKNOWLEDGEMENTS The Voting Rights Initiative (VRI) is the product of the extraordinary efforts of many people. We are particularly grateful to University of Michigan Law School Dean Evan Caminker and Associate Dean Steven Croley, Deans of Students David Baum and Charlotte Johnson, Michael Barr, Amy Bishop, Daniel Halberstam, Mary Lebert, Margaret Leary, MaryAnn Sarosi, Hannah Smotrich, Sandy Zeff, and Shawn DeLoach, Kurt Kaiser, Diana Perpich and the entire Sitemaker team at the University of Michigan, Westlaw, LexisNexis and Toree Randall, and web designers Jeff Christy and Travis Schau. VRI also thanks the Michigan Election Law Project for supporting this research. VRI benefited immeasurably from guidance given by several experts in the voting rights field: Debo Adegbile, Chandler Davidson, Julie Fernandes, Jon Greenbaum, Danny Levitas, Peyton McCrary, Laughlin McDonald, and Nina Perales. For financial support, VRI thanks the Law School Fund and the Office of Public Service at the University of Michigan Law School, and the Earl Warren Institute for Race, Ethnicity and Diversity, Boalt Hall School of Law, U.C. Berkeley. Contents Introduction 1 The Project: Background, Goals, and Methods statutory background 2 research objectives 5 research project and design 6 The Findings: Documenting Discrimination overall results 8 The Numbers 8 The Trends 11 the gingles threshold 12 Gingles I: Sufficiently Large and Geographically Compact 13 Gingles II and III: Racial Bloc Voting 16 the senate factors 20 factor 1: History of Official Discrimination that Touched the Right to Vote 20 factor 2: Extent of Racially Polarized Voting 32 factor 3: Use of Enhancing Practices: At-large Elections, Majority Vote Requirements 32 factor 4: Candidate Slating 33 factor 5: Ongoing Effects of Discrimination (Education, Employment, Health) 35 factor 6: Racial Appeals in Campaigns 37 factor 7: Success of Minority Candidates 42 factor 8: Significant Lack of Responsiveness 44 factor 9: Tenuous Policy Justification for the Challenged Practice 47 Proportionality as a Tenth Factor? 49 Introduction This year marks the fortieth anniversary of one of the most remarkable and consequen- tial pieces of congressional legislation ever enacted. The Voting Rights Act of 1965 (“the VRA”) targeted massive disfranchisement of African-American citizens in numerous Southern states. It imposed measures drastic in scope and extraordinary in effect.The VRA eliminated the use of literacy tests and other “devices” that Southern jurisdictions had long employed to prevent black residents from registering and voting.1 The VRA imposed on these jurisdictions onerous obligations to prove to federal officials that pro- posed changes to their electoral system would not discriminate against minority voters.2 Resistance was immediate both in the streets and in the courts, but the VRA withstood the challenge.3 The result was staggering. The VRA ended the long-entrenched and virtually total exclusion of African Americans from political participation in the South. Black voter registration rose and black participation followed such that, by the early 1970s, courts routinely observed that black voters throughout the South were registering and voting without interference. Similar benefits accrued to non-English speaking voters, particularly to Latino voters in the Southwest, after Congress amended the VRA to protect specified language minorities in 1975. This increased participation exposed less blatant inequalities and problems—complex issues such as racial vote dilution, the contours of which courts are still tackling today. These persistent problems have led Congress to extend and expand the VRA each time its non-permanent provisions were due to expire. The ban on literacy tests, as well as the “preclearance” provisions contained in Section 5, initially were enacted to last for only five years. Nonetheless, Congress decided to extend these provisions in 1970, again in 1975, and for twenty-five more years in 1982. During the last renewal, Congress also expanded the terms of the core permanent provision of the Voting Rights Act— Section 2. Four decades after their original enactment, the non-permanent provisions of the VRA are once again set to expire.4 Congress must soon determine whether it should renew these provisions, make substantive alterations to them, or simply let them lapse. To make this determination, Congress needs information about the past and present status of minority participation in the political process. The Voting Rights Initiative (“VRI”) at the University of Michigan Law School was created during the winter of 2005 to help address this need and to help inform the nationwide discussion on voting rights now under way. A cooperative research venture involving 100 students working under faculty direction set out to produce a detailed portrait of litigation brought since 1982 under Section 2. This Report evaluates the results of that survey. The comprehensive data set may be found in an analytically structured as well as searchable form at http://www.votingreport.org. The aim of this report, the accompanying website, and the project as a whole is to contribute to a criti- cal understanding of current opportunities for effective political participation on the part of those minorities the Voting Rights Act seeks to protect. Documenting Discrimination 1 The Project: Background, Goals, and Methods statutory background The Voting Rights Act of 1965 was enacted in response to the continued, massive, and unconstitutional exclusion of African Americans from the franchise. Despite the ratifi- cation in 1870 of the Fifteenth Amendment, which prohibits denying or abridging the right to vote on the basis of race, color, or previous condition of servitude, state voting officials continued to devise mechanisms to exclude African Americans from the fran- chise.5 Judicial invalidation of one such practice often prompted the creation of another to achieve the same result. Moving from outright violence to explicit race-based exclu- sions to “grandfather clauses,” literacy tests, and redistricting practices, many former Confederate states (and several others) successfully prevented African Americans from participating in elections for nearly a century.6 Prompted by several notorious attacks on civil rights activists and recognition of the scope of African-American disfranchisement, Congress and the President acted to remedy the ineffectiveness of existing anti-discrimination provisions in 1965. The statute they created would both reaffirm
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