A New Color Under the Voting Rights Act?
February 6, 2019
Last August a federal court in the Northern District of Texas ruled on an election law case that, upon initial review, may seem run of the mill. Upon further examination, it is nothing of the sort.
The case dealt with a vote dilution claim under the Voting Rights Act of 1965 (VRA), in which the plaintiffs claimed that their ability to elect an official of their choice in the Dallas County Commissioners Court election had been diminished by the way that the district map was drawn in 2011.
However, the claim itself is not unusual, but the oddity lies the status of the plaintiffs – white minority voters in Dallas County.
Passed during the Civil Rights Movement, the VRA usually serves to protect the voting rights of more traditional minority voters, who have been historically and systematically denied participation in the country’s electoral process. The Dallas County plaintiffs are a white minority, who make up 45.8% of the voting age population of Dallas County, and seek to appropriate the VRA’s protection in this lawsuit.
In their complaint, the plaintiffs argue that the same harm that has been historically perpetuated against other minority groups by the white majority has now been inflicted upon them as whites have now become the minority:
“Like something out of the bad old days, a southern electoral body plays naked racial politics, intentionally using its power to minimize a dissenting race’s political sway. The body does so through its redistricting authority, cramming as much of that racial minority as possible into a single district and splitting the remainder up as an insignificant fraction of the electorate in the surrounding districts. It undertakes this move to intentionally deny the racial minority a chance to fairly participate in the electoral process, while claiming that the minority has no legal right to protection and arguing that higher law compels the racist act.”
As the plaintiffs’ explain above, the United States, particularly in the South, has a history of creatively manipulating the law to deny certain populations—particularly African Americans and Latino Americans in Texas—the ability to meaningfully participate in elections due to their race, despite the 15th Amendment’s explicit ban on such racially-motivated actions.
As the national conscious focused on racial equality in the 1960s, Congress passed the Voting Rights Act to protect the voting rights of minority groups across the nation.
Section 2 of the VRA, in its original language, prevented the use of literacy tests, poll taxes, or other similar devices used to keep minority voters from participating in elections. Supporting courts inclusion of vote dilution claims under Section 2, Congress amended the language of Section 2 to address vote dilution in response to the growing practice of drawing district lines to dilute minority voting power.
Section 2 of the VRA now prohibits the implementation of practices that “result[] in a denial or abridgment of the right of any citizen…to vote on account of race” by limiting these citizens’ ability to effectively “participate in the political process and to elect representatives of their choice.”
To determine if such a denial or abridgment has occurred, Section 2 directs the judiciary to determine if such practices have only the effect of diluting the minority’s voting power by looking at the “totality of the circumstances,” that is, looking to certain factors and consider if these factors when considered together amount to a denial of participation in the electoral process.
Congress provided a list of suggested factors (Senate Factors) for the courts to consider which includes whether there is “a history of official discrimination” that affected the minority’s voting rights or whether “political campaigns have been characterized by…racial appeals.”
When considering the history of the VRA, the language of Section 2, and the Senate Factors, it seems questionable whether a white minority plaintiff can even make a claim under the VRA. Despite this, the federal district court of Northern Texas found that plaintiffs Anne Harding and company sufficiently plead a claim under the VRA.
Harding argued that by drawing the Dallas County Commissioners Court districts so that the majority of white voters were packed into one of the four districts, the Commissioners Court diluted the voting power of the white minority because the districts could have been drawn so that white voters held the majority in two districts rather than just one.
According to Harding, this diminished the white minorities’ capacity to elect a representative of their choice – “an Anglo Republican.”
However, the district court found that Harding had failed to prove that remedy it sought would fix the problem. In fact, the court seemed convinced that if the plaintiffs’ suggested district map was adopted, the white minority may still not be able to elect any representative of their choice.
As such, the district court ruled that the plaintiffs had failed to prove that their vote had been diluted under Section 2 of the VRA.
The plaintiffs have filed an appeal of the district court’s ruling with the Fifth Circuit.