A Proposed Standard for Amended Section 5 of the Voting Rights Act of 1965 as Applied to Redistricting

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INTRODUCTION

Many minorities still did not have the right to vote (1) nearly a hundred years after the Reconstruction Amendments (2) guaranteed them this constitutional right and others. (3) The Voting Rights Act of 1965 (4) (VRA) was to the pre-1965 electoral system what the Reconstruction Amendments were to the institution of slavery. And just as the Reconstruction Amendments required the VRA (an amendment of sorts) to give them any real meaning, the VRA has required amendments of its own. (5) Most recently, Congress reauthorized section 5 for the next twenty-five years and amended it through the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (6) (VRARA). This Note is concerned with a subsection added to section 5 through the VRARA; this subsection makes it a violation of section 5 for a proposed redistricting plan (7) to "diminish [ ] the ability" of minorities "to elect their preferred candidates of choice" when compared to the plan currently in effect, i.e., benchmark districting. (8)

To name only a few ways, vote dilution through redistricting can occur through the apportionment of a higher number of people (regardless of race or color) in some districts than in others (9) or through the apportionment of minorities in single and multimember districts. (10) The single or multimember districts may be equal in population, yet the apportionment of minorities among them can amount to vote dilution. "Cracking" denotes dividing up a concentrated minority population among multiple districts to avoid giving minorities the ability to elect their candidates of choice. (11) "Packing" denotes apportioning a large number of minorities into a single district to avoid giving them the ability to elect their candidates of choice in other districts. (12) "Stacking" denotes combining a large number of minorities with an even larger number of whites into a single district, so that the minorities do not have the ability to elect their candidates of choice. (13)

Section 5 applies only to "covered jurisdictions," which are expressly listed in the statute. (14) Section 5 requires covered jurisdictions to receive preclearance from the U.S. Department of Justice (DOJ) or a declaratory judgment from the U.S. District Court for the District of Columbia (15) before making a change to "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" (16) (covered change). Preclearance is granted if the covered jurisdiction proves that the covered change does not have the purpose or effect (17) of "denying or abridging the right to vote on account of race or color" (18) as compared to the status quo. (19) In other words, preclearance is granted if the covered change does not dilute the vote as compared to the status quo. (20) The VRARA prohibits a covered change from "diminishing the ability" of minorities "to elect their preferred candidates of choice." Diluting the vote as compared to the status quo has long been a prohibited effect, but the added subsection makes clear that a nondiluted vote includes the ability to elect a candidate of choice. Congress added the subsection to overrule the Supreme Court's holding in Georgia v. Ashcroft, (21) which moved the focus of a prohibited effect away from the ability to elect, and permitted the trading of descriptive representation of minorities for substantive representation. (22) This contradicted the DOJ's decades-old standard for a prohibited effect (23) based on the interpretation set forth in Beer v. United States. (24)

Part I of this Note examines the standard for a prohibited effect before the VRARA. Part II addresses the ability-to-elect standard for determining whether a proposed redistricting plan "diminish [es] the ability" of minorities "to elect their preferred candidates of choice." This Part analyzes the standard provided in the Senate Judiciary Committee's Report (25) and briefly discusses the House Judiciary Committee's Report, (26) which does not include a standard. …