Posted March 17, 2008 by J. Gerald Hebert

50% Rule Gets Its Day in the High Court

A redistricting case out of North Carolina accepted by the U.S. Supreme Court today could have a significant impact not only on voting rights law, but also on drawing districts (congressional, legislative, and local government) nationwide.  The Court granted a petition for certiorari in Bartlett v. Strickland, which is likely to have a significant effect on the post-2010 round of redistricting.     

The question presented in the cert petition is this:  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.  This question has enormous consequences for those who seek to empower minority voters in the political process, and it was likely the last opportunity the Court had before the next round of redistricting top resolve this important question. 

The 50% rule was litigated in LULAC v. Perry, but the Court sidestepped the issue in that case, assuming without deciding that it is possible to state a voting rights dilution claim under Section 2 of the Voting Rights Act when a racial group constitutes less than 50% of the population.

To date, as the cert petition noted, “the circuit courts and state courts of last resort are split on the issue of whether a vote dilution claim may be brought under Section 2 of the Voting Rights Act when the population of minority voters constitutes less than 50% of a geographically compact area but is sufficiently numerous to elect representatives of their choice as a result of consistent crossover voting from other racial groups.”  Some courts of appeals have imposed a bright line 50% numerical threshold for bringing a Section 2 claim and have relied on the Court’s decision in Thornburgh v. Gingles as authority for this proposition. Under Gingles, a plaintiff must show that: 1) the minority group “is sufficiently large and geographically compact to constitute a majority in a single-member district,” 2) the minority group is “politically cohesive,” and 3) “the white majority votes sufficiently as a bloc to enable it... usually to defeat the minority’s preferred candidate.” Id. at 50-51.   Some federal appellate courts have reached the conclusion that the first Gingles prong establishes a literal numerical threshold of 50%.

In one case, for example, Hall v. Commonwealth of Virginia, 385 F.3d 421,423 (4th Cir. 2004), the Fourth Circuit Court of Appeals held that Section 2 of the Voting Rights Act establishes “a numerical majority requirement” for vote dilution claims. In that case, black plaintiffs challenged a congressional district that was around 40% African-American, but were unable to draw a proposed or illustrative district that was at least 50% African American.  I served as co-counsel for the Hall plaintiffs and argued against the 50% rule in that case.  In other words, the courts have adopted a hard and fast rule that minority voters may only bring a vote dilution claim if the minority voters can show that their group comprises at least 50% of a proposed alternative election district. 

In LULAC v. Perry, where I represented certain Democratic congressional intervenors, I argued (unsuccessfully) that the Voting Rights Act was violated when the State of Texas deliberately destroyed a coalitional district where African-American voters had enjoyed an effective opportunity to consistently nominate and elect a candidate of their choice.  In that district (District 24), minority voters (African Americans and Latinos constituted a majority together, but neither constituted a majority of the district by themselves.  And although African-Americans comprised less than one fourth of the population in District 24, the African American community regularly constituted an overwhelming majority (approximately 64%) of voters in the Democratic primary.  African Americans dominated the primary in District 24 because the district’s Anglo and Latino voters were much more likely to participate in the Republican primary, to be noncitizens (and therefore nonvoters), or simply to stay home.  And in the general election, the district consistently supported Democrats of all races, making the ability to nominate in District 24 tantamount to the ability to elect.  Despite this, the Supreme Court rejected the Section 2 claim made on behalf of African-American voters in District 24.  That decision has left the third largest concentration of African-Americans in the State (located in Fort Worth) with essentially no voice and no representation in Congress.

As shown by the LULAC v. Perry facts, employing a wooden rule that States and local governments are only obligated to protect minority voting rights when a district crosses a 50 % threshold imposes a formalistic barrier to minority voters seeking to build cross-racial coalitions to elect their preferred candidates to office.  The 50% rule also can serve to entrench racial stereotypes, thwart the goals of the Voting Rights Act, and retard the integration of American politics.

The Supreme Court’s resolution of the 50% rule is long overdue.  It is time to scrap once and for all a rule that imposes an arbitrary threshold of 50% before a minority group can be protected against vote dilution under Section 2 of the Voting Rights Act.