Justice Kennedy to the Rescue?
In response to Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes by Christopher S. Elmendorf
Section 2 of the Voting Rights Act is a doctrinal mess. Through a totality of circumstances inquiry, Section 2 has evolved from its modest beginnings as a codification of the Fifteenth Amendment into a “mysterious judicial inquiry” that places the Supreme Court in the enviable position of policing the contours of the politics of race. This is a role that the Justices have played to mixed reviews. The criticisms are well known: not only does the doctrine offer little guidance to the lower courts, but it also promotes the creation of majority-minority districts, a mode of racial policymaking that is said to be inconsistent with our commitment to racial equality. These two criticisms make clear that Section 2 is vulnerable to constitutional attack.
Professor Elmendorf’s article is a welcome response to this state of affairs. He offers an understanding of Section 2 “as a delegation of authority to the courts to develop a common law of racially fair elections, guided by certain substantive and evidentiary norms, as well as norms about legal change.” This is a thoughtful and intriguing proposal. It also finds much support from the historical record in at least three respects. First, a call to delegate authority to the courts is precisely the approach Congress took when it chose to enforce the Fifteenth Amendment through the Voting Rights Act. This argument need only recognize two obvious points: that Congress wished to enforce the amendment to its constitutional limits, and that Congress could not be sure where these limits were. What we see in response is a statute drafted in general terms, which was essentially an invitation to the Court to extend the law as far as constitutionally permissible. The language also allowed the Justices to adapt the law to changing circumstances.
Second, conceptualizing Section 2 as a common law statute makes sense of the Court’s voting rights jurisprudence. This is how the Court has interpreted the Voting Rights Act—and Section 2 in particular—for much of its history. Finally, the substantive norms at the heart of Elmendorf’s proposal date back to arguments made in the early years of the Act. Under his proposal, a dilution injury is one where “race-biased decisionmaking . . . results in minorities having less representational opportunity than they otherwise would.” A “race-biased decision” is a decision that “would have been different had the race of persons considered by the decisionmaker been different.” A participation injury arises when race-biased decisions lead to “disparate burdens on minority participation.” Similar arguments were pressed by former Attorney General Katzenbach during the 1975 Senate hearings and by lower courts in the early years of the Act.
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