Bartlett v. Strickland

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[edit] Briefs and Documents

Docket: 07-689

Issue: Whether a racial minority group that constitutes less than 50% of a proposed district’s population can state a vote dilution claim under Section 2 of the Voting Rights Act. (Disclosure: Akin Gump filed the amicus brief of the NAACP in support of the petitioner.)


Merit briefs

Amicus briefs

Oral Argument: Transcript

Decision: AFFIRMED in an opinion by Justice Kennedy

[edit] Pre-Argument Articles

Federal voting rights law allows minority voters to pursue claims in court that the political strength they could wield has been diluted by some law or election regulation. The Court will explore in Bartlett v. Strickland the rights that the law protects.

Background

In American politics, it has been true – from the very beginning – that coalitions can be built to win elections. Indeed, U.S. political parties have always been coalitions. People who share political aspirations get together to pool their strength, with the aim of electing the candidates they prefer -- the ones they think most likely to work for them within the government. In modern America, minority voters have greater political influence when they form a coalition with others, because they may not have sufficient electoral power on their own to prevail.

When Congress passed the Voting Rights Act 43 years ago, it included a provision – Section 2 – that assures minority voters that the political process will be “open equally” to minority voters, as members of a group protected against discrimination. It does not guarantee a bloc of minority voters that they will always get their preferred candidate elected, but it assures them against the denial of that opportunity. Such a denial has come to be known as “vote dilution” – a lessened opportunity, because of an election law or practice, for minorities to elect the candidates of their choice. (Vote dilution does not have to be intentional discrimination; it can be the practical effect of a law or practice.)

The phrase “vote dilution” does not appear in Section 2, but it has been part of the vocabulary of equal voting rights since the Supreme Court decided Thornburg v. Gingles in 1986 – still the leading case on the interpretation of Section 2. Among other parts of that ruling, the Court said that a dilution claim could be made by minority voters only if they were a large enough group in their community to “constitute a majority” in a district that elects a single public official.

In the 22 years since Gingles was decided, the Supreme Court has never spelled out what “majority” means. It left that issue open in Gingles itself, and in five later decisions on Section 2’s scope. Lower courts are divided on the issue. Some have ruled that a “majority” only means a mathematical, literal majority – 50-plus percent of the population. Others have said that it can mean a coalition, including minority voters, that has the strength to control election outcomes.

Resolving that conflict is the task the Supreme Court has taken on in Bartlett v. Strickland (07-689). The question comes up in the context of drawing election districts – the process of “redistricting” that occurs after every ten-year national and state Census. In that setting, vote dilution can occur by packing too many minority voters into a single district, isolating them so that they can’t influence outcomes elsewhere, or by dispersing them among several districts so that they are not influential in any of them.

The appeal asks the Court to lay down the rule that it is a valid Section 5 claim of vote dilution for minority voters, even if they do not have an actual 50-plus majority in a district, if they have been able to form a coalition with non-minorities sufficient to elect the candidates that the coalition favors, and the coalition’s strength is diluted by a redistricting plan. If the Court does so, it would then be a violation of Section 2 to avoid creating a “coalition district” (sometimes called a “crossover district” or an “influence district”) if that can be done by recognizing political reality, or to dismantle an existing district that has been functioning as a “coalition district.”

The lawsuit involves the legality, under Section 2, of District 18 in the North Carolina House of Representatives, a district created by the legislature in 2003 to include parts of New Hanover and Pender Counties. Blacks make up 39.36 percent of the voting age population in District 18, and Democrats hold a 59-41 percent advantage in registered voters. The winner of the Democratic primary thus consistently wins the general election. The legislature created District 18 as a “coalition district,” believing that doing so was necessary to avoid a Section 2 vote dilution challenge by black voters. With only limited crossover voting by whites, District 18’s black voters have repeatedly nominated and elected a black state representative – in fact, in each election since 1992.

In May 2004, Pender County and its county commissioners filed a lawsuit in state court, challenging House District 18 for having split up Pender County. The trial court ruled in favor of the District, finding the configuration was necessary to avoid diluting the votes of blacks in this “coalition district.” The North Carolina Supreme Court overturned that ruling, striking down District 18 as drawn. Section 2, that court said, requires a “bright-line rule” that a minority group has an actual majority – 50-plus percent – and District 18 had only a 39.36 percent black population. That decision was appealed to the Supreme Court last Nov. 21, and the Court granted review on Feb, 17.

Petition for Certiorari

Gary Bartlett, executive director of the state Board of Elections, joined by other state officials, sought Supreme Court review on a single question: “Whether a racial minority group that constitutes less than 50 % of a proposed district’s population can state a vote dilution claim under Section 2 of the Voting Rights Act, 42 U.S.C. sec. 1973.” The petition has two major points: first, the question at issue has been left open on five occasions by the Supreme Court and, as a result, there is confusion and division among lower courts, and, second, a new round of redistricting will follow the 2010 Census, and this case “likely stands as the last opportunity for the Court to resolve this split” before new district boundaries are drawn for Congress, state legislatures and other governing bodies. If the issue is not resolved now, the petition contended, “election districts will be drawn throughout the country with different standards used in different circuits.” And a decision now may help to head off having to drawn new districts more than once after that Census.

The appeal is supported by other states, the League of Women Voters, the NAACP and black voters, and by two state legislators, in New York and Ohio. A significant historical fact is put before the Court in the NAACP amicus brief: it used to be that minority voters would have to have 65 percent strength to have a real chance to choose a candidate of their choice, because of highly polarized voting along racial lines, but in recent years, such polarized voting has decreased in some places, making it possible for minorities who do not have a numerical majority to form coalitions with others and have the opportunity to prevail.

Opposing review, Pender County, N.C., officials and voters contended that the state Supreme Court decision was based, in significant part, upon its view that state law barred the division of counties. Thus, there was an adequate state law rationale for striking down District 18, and thus the Court should leave that decision intact. The officials contend that Congress has been well aware of the 50-plus rule as adopted in most lower courts, and has done nothing to amend Section 2 to counteract that trend.

Analysis

Three members of the Supreme Court – Justices Ruth Bader Ginsburg, David H. Souter and John Paul Stevens – have said that they do not support the 50-plus rule as the only measure of majority of a majority for purposes of a Section 2 vote-dilution claim. That is a fairly strong starting point for the challengers to the literal, mathematical approach. But perhaps an even stronger point, on their side, is that the Supreme Court has said that the 50-plus rule is not appropriate in deciding cases under another part of the Voting Rights Act of 1965 – its Section 5, requiring a number of states and other jurisdictions that formerly discriminating in voting to get pre-clearance in Washington for any changes they may in election laws or procedures (including redistricting). The Court in the 2003 decision in Georgia v. Ashcroft cited studies that “the most effective way to maximize minority voting strength” may be to create “coalition districts.”

One complicating factor, perhaps for conservative Justices, is the argument that Pender County has made that adopting a less-than-majority rule for minority voters under Section 2 would be to create a race-bases “special status” for those voters. The Voting Rights Act, the argument asserted, does not seek to assure minority voters of winning, but only a chance to compete. Even if the 50-plus rule were to be upheld, they added, minority voters would still be able to form coalitions with some members of a district’s majority group to elect candidates that all of them prefer.

[edit] Oral Argument Analysis

Lyle Denniston wrote the following analysis for SCOTUSblog.

If a legal formula on drawing new election districts to try to help minority voters has worked for more than 20 years, as the federal government insists, the Supreme Court might not have any interest in replacing it unless there were a clear and better alternative. The Court spent an hour Tuesday talking about different approaches, in Bartlett v. Strickland ((07-689), but found the inquiry confusing, frustrating and inconclusive. The odds seemed long that the meaning of Section 2 of the Voting Rights Act might be significantly modified.

The case involves an attempt, by North Carolina state officials, to do away with the requirement that, in order to complain that their voting strength will be illegally diluted by a districting plan, minority voters must have a 50-plus percentage majority before a district has to be drawn to give them a chance to prevail. The federal government, taking part in the case, argues that that formula has been followed successfully across the country for more than two decades and, if anything, needs only a little tweaking now to satisfy Section 2.

The state, however, is attempting to defend a plan, struck down by the state supreme court under the 50.1 percent rule, that has only a 39-plus percentage black population. In that particular district, enough white voters have joined ranks with the blacks to form a winning coalition — thus, theirs is a “coalition district.” The state’s appeal seeks Supreme Court approval of “coalition districts” as a way to avoid a Section 2 violation.

As the hearing Tuesday unfolded, the Court lurched between concern over putting new emphasis on race as a redistricting factor, puzzlement over where the percentage line might be drawn differently, unwillingness to get more deeply involved in second-guessing redistricting, and uncertainty over the way to judge how voters might act in the future as a key to making election arrangements in the present.

As soon as North Carolina’s solicitor general, Christopher G. Browning, Jr., opened with a rhetorical plea for the Court to help foster “a society where race no longer matters,” he immediately ran into complaints that the state was pushing for just the opposite.

To Browning’s suggestion that “coalition districts” will help lead to “an integrated society,” Chief Justice John G. Roberts, Jr., swiftly retorted: “How can you say that this brings us closer to a situation where race will not matter when it expands the number of situations in which redistricting authorities have to consider race?” Justice Anthony M. Kennedy soon chimed in: “Under your definition of coalition district, race is the key factor…And you are telling us if we have a rule that makes race the key factor then race doesn’t matter.”

Browning tried to show that, because of Section 2’s focus on vote-dilution for black voters, race was a necessary factor in election line-drawing, but Kennedy said that was not so, that there was no prior case requiring that race be considered in drawing districts, and that “it’s a new proposition that you are arguing for us here.”

The Justices then turned to analyzing the implications of abandoning the 50-plus rule, testing Browning on where to draw the line, in the percentage of white crossover voters that would be needed before a state need not create a race-driven district to get around minority vote-dilution. He conceded, in general, that voting support from whites might grow so great that Section 2 would not require a correction to favor minority voters, but said “we’re not there yet.”

Justice Samuel A. Alito, Jr., interpreted the concession to mean that North Carolina was simply arguing for a different percentage figure than the other side’s 50-plus, implying that there was no reason to switch just to be different. Alito tried without success to pin down the state’s lawyer on when crossover white voting would be high enough to prevent minority candidates from routinely losing, and thus avert a Section 2 violation. The Chief Justice tried the same tack, as did Justice Antonin Scalia, but similarly got no direct answer.

Justice Ruth Bader Ginsburg came out in implied defense of the 50-plus approach, saying it was a bright-line approach and telling Browning that he did not have an alternative “that would give district courts and attorneys some degree of security” about “what’s in and what’s out.”

After exchanges over what Section 2 would require, in North Carolina’s view, in fashioning less-than-50 percent districts, Browning was broadly challenged by Justice Scalia, who said that “what you propose is going to inject courts into the drawing of districts much more frequently than they already are injected….You just can’t wave a magic wand.” Legislatures, Scalia argued, are going to draw districts to favor incumbents, even if that is contrary to giving all voters a chance to prevail in their districts. “I have always regarded the 50 percent…thing as simply a self-protection prescription for the courts.”

The county officials and voters who opposed the specific state district at issue fervently embraced the 50-percent rule. Their attorney, Carl W. Thurman III of Wilmington, N.C., picked up on Justice Scalia’s contention that abandoing that rule would lead to “judicial involvement in many, many more situations,,” and would compel legislatures — contrary to the Voting Rights Act — to draw plans to maximize minority voting strength, not simply avoid dilution of it. He said that a switch in approach would affect every legislative body, across the board, because all of them must obey Section 2.

Thurman’s argument bogged down considerably as the Justices wondered why, during lower court proceedings in the case, the challengers had stipulated away a key point on proof that the defenders of the district had to offer to make a Section 2 complaint. He simply said that the maneuver was done simply to move the case along, but the Chief Justice said it complicated the case “on a rather critical point.”

When the hearing got back on track, on possible alternatives to the 50-percent rule, Thurman argued that abandoning that “very clear, very limited sort of rule” would lead to race becoming “the predominant factor in the redistricting decision.” Minorities with as little as 25 percent of a district’s population, he said, would be claiming vote-dilution.

Justice Stephen G. Breyer took Thurman through a lengthy exchange, reaching a bottom line in which the Justice suggested that a workable alternative rule would be one in which minority voters would be entitled to an election district if they had a minimum 2-to-1 ratio to white crossover voters . Taking the district at issue, Brearner yer noted, the 39-plus minority could prevail if it could garner support from an 11-plus white crossover vote.

“So,” Breyer said, “there’s a kind of natural stopping place… You insist that the black group had to be twice as many as the white group that crossed over. A little arbitrary, but at least we were getting to the right thing.” Thurman countered that, whenever “you start dropping below 50 percent,” minority voters are not being given an equal opportunity in elections, but a more than equal opportunity compared to other groups.

Justice John Paul Stevens suggested that “a rigid 51 percent rule assumes that the minority communities throughout the country are all alike,” but in reality different approaches might have to be taken in different communities, depending on local circumstances.

For the federal government, Daryl Joseffer, an assistant to the U.S. Solicitor General, arguing in favor of the challengers to the North Carolina district, sought to buttress the worries of some of the Justices that expansion of Section 2’s coverage would raise a host of problems, including “serious constitutional concerns,” including racial gerrymandering and partisan gerrymandering. He also argued that a new approach would “require difficult predictive judgments about how people would react, how people would vote in a future proposed district” — problems not encountered under the approach now being employed.

Joseffer did not argue, however, for a rigid 50-plus rule. He said the rule could have a built-in plus-or-minus factor of 2 percent. Calculating the percentages resulting from such variations, he argued, would not be more difficult than trying to determine when a group had 50 percent.

[edit] Opinion Analysis

Dividing 5-4, the Supreme Court ruled on Monday that federal voting rights law does not require the creation of a new legislative district when that would include a racial minority group that has less than 50 percent of the population, as a remedy when minority voters’ rights have been diluted. Only when a group of minority voters would form a majority in a single-member district must it be created as a remedy under Section 2 of the Voting Rights Act of 1965, the Court ruled in Bartlett v. Strickland (07-689).

Justice Anthony M. Kennedy’s opinion decided the case, but spoke for only three of the Court’s members; he was joined by Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr. Justice Clarence Thomas, joined by Justice Antonin Scalia, supported only the result, arguing that “vote dilution” claims of any kind simply are not allowed under the 1965 law.

Kennedy’s plurality opinion did say that, if state legislatures wished to create a district when a minority group would have less than a 50 percent majority, federal law does not forbid that. That is usually considered a “crossover district” because minorities, while not having a majority, are able to attract enough white voters’ support to elect their preferred candidates.

Still, Kennedy went on, the Court was not saying that legislatures could pass a law that would “entrench” a majority district in which minorities dominate; that would raise constitutional problems of its own, the opinion said.

[edit] Settling an issue of race and politics

Two starkly differing views of the contemporary role of race in American politics emerged in full view in the Supreme Court’s wide-ranging new ruling on federal voting rights law. Both views start with the same premise, but end up in markedly different conclusions. Again, the Court is seen to be as deeply divided on the way out of the racial bind as the entire country may still be.

The opinion deals with an issue that has been considered so difficult that the Court has left it open repeatedly, including five times in the past quarter-century. The array of opinons finally resolving the question is further evidence of its complexity, both as a core legal question and as a wider cultural inquiry.

Both the plurality opinion of Justice Anthony M. Kennedy in Bartlett v. Strickland (07-689), and the principal dissent, by Justice David H. Souter, begin with the notion that it would be culturally and legally valuable if the nation could organize its politics with less focus on race. Both sides would like to see the races come together more often in political alliances, thereby reducing race as a dividing line at the polls and possibly even easing racial tension as a whole.

Justice Kennedy, while lamenting that “racial discrimination and racially polarized voting are not ancient history,” welcomes trends in the opposite direction that may be developing. He sees in the 1965 Voting Rights Act’s Section 2 — the provision at issue in Bartlett – as intending to “hasten the waning of racism in American politics.” And he welcomes “the voluntary cooperation our society has achieved.”

Justice Souter notes that “racial polarization has declined,” and writes approvingly of requiring “polarized factions to break out of the mold and form the coalitions that discourage racial divisions.” He credits Section 2, as interpreted judicially, as helping minority populations “elect representatives of their choice,” and potentially even more so, if allowed to break down polarization further.

But then the two main opinions part ways. Examining what Section 2 provides as a remedy, when minorities are in danger of losing significant electoral opportunity, both Kennedy’s and Souter’s legal conclusions and their broader perceptions differ significantly.

The contrast being drawn here is between the two main opinions. Justices Clarence Thomas and Antonin Scalia, while casting votes make a 5-4 majority for the outcome, took an entirely different view of Section 2 — one that would narrow its scope even more than Kennedy’s reasoning would.

The legal question in the case — one supposedly confined to interpreting a statute, not the Constitution — was whether Section 2 requires the creation of an election district in an area of a state where a racial minority makes up a sufficiently large bloc to be able to control elections, if they get some measure of support from white voters.

Kennedy’s conclusion: Only if the minority has 50.01 percent or more of the population in the new district — that is, a numerical majority — does Section 2 make a new district necessary as a remedy for dilution of minority voting patterns in the former districting arrangement. Nothing in that provision, Kennedy said, commands a legislature to create a new district out of less than a majority of voters who are of a racial minority.

The result, for Kennedy, is that Section 2 does not mandate what are called “crossover districts.” When minority voters cannot “dictate electoral outcomes independently,” they have no right under that provision to creation of a district where they will need “assistance from others” in order to prevail. “Nothing in Section 2 grants special protection to a minority group’s right to form political coalitions,” Kennedy’s opinion says.

By contrast, Souter’s conclusion: Even if minority voters in a new district would not have a majority — that is, their numbers fall below 50 percent — Section 2 should require as a remedy for vote dilution a district in which their numbers are large enough to “elect representatives of their choice,” even if to do so they will have to have crossover support from whites.

Souter does not set a fixed figure on how far below 50.01 percent the minority population must be in order to justify a “crossover” district. He does suggest that 25 percent would be too low, while 39 percent — the figure for the particular North Carolina legislative district at issue — would not be too low. For practical purposes, according to Souter, a 39 percent minority district where minorities have the potential to prevail — with crossover support — “is every bit as good as a 50 percent minority district.”

Kennedy comes to the legal conclusion he draws because of a broader concern: Deciding what the minimum figure would be (below 50.01 percent) would force those drawing up districts to pay much closer attention to racial factors. Determining where to draw the line, his opinion says, courts would be placed “in the untenable position of predicting many political variables and tying them to race-based assumptions.”

Kennedy adds: “There is an underlying principle of fundamental importance: We must be most cautious before intrepreting a statute to require courts to make inquiries based on racial classifications and race-based predictions.” To read Section 2 to compel “crossover districts,” keyed so closely to “racial assumptions,” would raise “serious constitutional problems,” as Kennedy views the matter.

This reflects Kennedy’s long-standing concern about using race as a deciding factor in determining public policy in general. His aspiration is to move government steadily away from race-based judgments, partly out of philosophical discomfort with such judgments, and partly out of a belief that society is making advances in racial understanding without being coerced.

For his part, Souter comes to his conclusion also out of a broader concern : If “crossover districts” are not allowed as remedies for vote dilution, then legislatures will simply resort to “packing” — that is, solving the problem of declining minority political clout, legislatures will simply create more districts in which minorities hold a clear majority. They will prevail, of course, but only in isolated districts that do not reflect their potential influence elsewhere in the state, where they could make coalitions with non-minority voters.

By insisting upon a majority of a racial minority in a remedial district, the plurality, according to Souter, “has done all it can to force the states to perpetuate racially concentrated districts, the quintessential manifestations of race consciousness in American politics.”

For all of the constitutional overtones of the decision, it still is a ruling about the meaning of a federal statute. It is thus up to Congress, if it wishes, to clarify what Section 2 means. (Justice Ruth Bader Ginsburg, in a brief dissenting opinion of her own, suggests just that.)

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