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643 Documenting Discrimination in Voting Katz FINAL.doc 10/9/2006 1:00 PM DOCUMENTING DISCRIMINATION IN VOTING: JUDICIAL FINDINGS UNDER SECTION 2 OF THE VOTING 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**** Anna Weisbrodt***** Introduction......................................................................................... 644 I. The Project: Background, Goals, and Methods.............. 646 A. Statutory Background ......................................................646 B. Research Objectives ..........................................................650 C. Research Project and Design..............................................652 II. The Findings: Documenting Discrimination..................... 654 A. Overall Results..............................................................654 1. The Numbers...........................................................654 2. The Trends .............................................................657 B. The Gingles Threshold...................................................660 1. Gingles I: Sufficiently Large and Geographically Compact............................................661 2. Gingles II and III: Racial Bloc Voting........................663 C. The Senate Factors .........................................................675 1. History of Official Discrimination in Voting.................675 2. Extent of Racially Polarized Voting .............................697 3. Use of Enhancing Practices: At-large Elections, Majority Vote Requirements .......................................697 4. Candidate Slating....................................................699 5. Ongoing Effects of Discrimination (Education, Employment, Health)................................................702 6. Racial Appeals in Campaigns....................................707 7. Success of Minority Candidates ..................................717 8. Significant Lack of Responsiveness .............................722 * Professor of Law, University of Michigan Law School. B.A. Yale, 1991; J.D. Yale, 1994. Faculty Director, Voting Rights Initiative of the Michigan Election Law Project. ** B.A. Kenyon College, 2002; University of Michigan Law School, J.D. expected 2007. *** A.B. Harvard College, 2000; J.D. University of Michigan Law School, 2006. **** A.B. Harvard-Radcliffe College, 1998; J.D. University of Michigan Law School, 2006. ***** A.B. University of Michigan, 2003; University of Michigan Law School, J.D. expected 2006. 643 Katz FINAL.doc 10/9/2006 1:00 PM 644 University of Michigan Journal of Law Reform [Vol. 39:4 9. Tenuous Policy Justification for the Challenged Practice..................................................727 10. Proportionality as a Tenth Factor? ..............................730 Conclusion............................................................................................. 732 Acknowledgements.............................................................................. 735 Appendix.................................................................................................. 737 Introduction† The Voting Rights Act of 1965 (“the VRA”) is one of the most remarkable and consequential pieces of congressional legislation ever enacted. It targeted the 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 South- ern jurisdictions had long employed to prevent black residents from registering and voting.1 The VRA imposed on these “covered” jurisdictions onerous obligations to prove to federal officials that proposed changes to their electoral system would not discriminate 2 against minority voters. † Case citations within this Article have been adapted to better serve the purposes of the piece and to conserve space. Litigation titles correspond with the Voting Rights Initiative Master List of cases, infra Appendix, available at http://www.votingreport.org, and have been abbreviated in accordance with The Bluebook. Litigation titles do not reflect the traditional party versus party designation and often encompass several cases in a particular litigation “string.” The adapted citation format identifies the state from which the litigation arose in cases where the traditional citation format does not indicate the state. The relevant state is indi- cated by its postal service abbreviation, in parenthesis, after the litigation title. Some cases of particular import do not identify the state in this manner. In order to allow for immediate identification of the relevant state, short forms are seldom used for case citations. 1. As originally enacted, the VRA banned the use of any “test or device,” such as a lit- eracy test, for five years in areas of the country where a significant portion of the voting age population either was not registered to vote or failed to vote in the 1964 presidential elec- tion. See 42 U.S.C. § 1973b (2000) (as amended by Pub. L. No. 94-73, tit. I, § 101, tit. II, §§ 201–03, 206, 89 Stat. 400–02 (1975)) (making ban permanent and nationwide). 2. Section 5 of the VRA required that these so-called “covered” jurisdictions obtain federal “preclearance” before they changed any aspect of their electoral rules. 42 U.S.C. § 1973c (2000). Covered jurisdictions may obtain a declaratory judgment to this effect from the United States District Court for the District of Columbia, or, alternatively, submit a pre- clearance request to the United States Department of Justice. Id. §§ 1973b, 1973c. The VRA required that these jurisdictions demonstrate that the new practice did “not have the pur- pose and will not have the effect of denying or abridging the right to vote on account of race . ” Id. § 1973c. Katz FINAL.doc 10/9/2006 1:00 PM Summer 2006] Documenting Discrimination in Voting 645 Resistance was immediate, but the VRA withstood the chal- lenge.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 vot- ers 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 ex- pand the VRA each time its non-permanent provisions were due to expire. The ban on literacy tests and the “preclearance” provisions contained in Section 5 initially were enacted to last for five years. Congress extended these provisions in 1970, again in 1975, and for twenty-five more years in 1982, at which time Congress also ex- panded the terms of the core permanent provision of the Voting Rights Act—Section 2. This summer, Congress renewed and reau- thorized the non-permanent provisions of the VRA, which were set to expire in 2007.4 The Voting Rights Initiative (“VRI”) at the University of Michi- gan Law School was created during the winter of 2005 to help inform both the debates that led to this latest congressional reau- thorization and the legal challenge to it that is certain to follow. A cooperative research venture involving 100 students working un- der faculty direction set out to produce a detailed portrait of litigation brought since 1982 under Section 2. This Report evalu- ates the results of that survey. The comprehensive data set may be found in a searchable form at http://www.votingreport.org or http://www.sitemaker.umich.edu/votingrights. The aim of this report and the accompanying website is to contribute to a critical understanding of current opportunities for effective political participation on the part of those minorities the Voting Rights Act seeks to protect. 3. See South Carolina v. Katzenbach, 383 U.S. 301, 327 (1966) (upholding constitu- tionality of major portions of the VRA). 4. These provisions are the preclearance requirements of Section 5, the federal elec- tion monitoring and observer provisions set forth in Sections 6, 7, 8 and 9, and the language minority ballot coverage provisions of Sections 203 and 4(f). See 42 U.S.C. § 1973b(a)(8) (2000) (setting 2007 as the next required reauthorization date). Katz FINAL.doc 10/9/2006 1:00 PM 646 University of Michigan Journal of Law Reform [Vol. 39:4 I. The Project: Background, Goals, and Methods A. 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 ratification 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 franchise.5 Judicial invalida- tion of one such practice often prompted the creation of another to achieve the same result. Using tactics ranging from outright vio- lence to explicit race-based exclusions to “grandfather clauses,” literacy tests, and redistricting practices, many former Confederate states
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