Several constitutional amendments, not to mention numerous federal and state laws, make it clear that the right to vote is essential in the United States. And when state or local governments burden a community's ability to vote, the Fourteenth Amendment is there to provide a basis for a legal challenge.
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
Courts have suggested that challenges to multimember districts that allegedly minimize or cancel out the votes of racial and political minorities might be justiciable under the Equal Protection Clause.1 But in Whitcomb v. Chavis2 the Court, while dealing with the issue on the merits, buried it so deeply in strict standards of proof and definitional analysis as to raise the possibility that it might be beyond judicial review.
In Chavis, the Court held that where multimember districting represented a state policy of more than 100 years observance and therefore could not be said to be motivated by racial or political bias, only an actual showing that the multimember delegation in fact inadequately represented the allegedly submerged minority would suffice to raise a constitutional question.
But the Court also rejected the argument that any interest group had a right to be represented in a legislative body in proportion to its members' numbers or on some other basis, so that the failure of that group to elect anyone merely meant that alone or in combination with other groups it simply lacked the strength to obtain enough votes, whether the election is in single-member or in multimember districts. That fact of life was not of constitutional dimension, whether the group was composed of Black citizens, or Republicans or Democrats, or some other category of persons. Thus, the submerging argument was rejected, as was the argument of a voter in another county that the Court should require uniform single-member districting in populous counties because voters in counties that elected large delegations in blocs had in effect greater voting power than voters in other districts; this argument the Court found too theoretical and too far removed from the actualities of political life.
Subsequently, and surprisingly in light of Chavis, the Court in White v. Regester3 affirmed a district court invalidation of the use of multimember districts in two Texas counties on the ground that, when considered in the totality of the circumstances of discrimination in registration and voting and in access to other political opportunities, such use denied African-Americans and Mexican-Americans the opportunity to participate in the election process in a reliable and meaningful manner.4
Doubt was cast on the continuing vitality of White v. Regester, however, by the badly split opinion of the Court in City of Mobile v. Bolden.5 A plurality undermined the earlier case in two respects, although it is not at all clear that a majority of the Court had been or could be assembled on either point. First, the plurality argued that an intent to discriminate on the part of the redistricting body must be shown before multimember districting can be held to violate the Equal Protection Clause.6 Second, the plurality read White v. Regester as being consistent with this principle and the various factors developed in that case to demonstrate the existence of unconstitutional discrimination to be in fact indicia of intent; however, the plurality seemingly disregarded the totality of circumstances test used in Regester and evaluated instead whether each factor alone was sufficient proof of intent.7
Again switching course, the Court in Rogers v. Lodge8 approved the findings of the lower courts that a multimember electoral system for electing a county board of commissioners was being maintained for a racially discriminatory purpose, although it had not been instituted for that purpose.
Applying a totality of the circumstances test, and deferring to lower court factfinding, the Court, in an opinion by one of the Mobile dissenters, canvassed a range of factors that it held could combine to show a discriminatory motive, and largely overturned the limitations that the Mobile plurality had attempted to impose in this area. With the enactment of federal legislation specifically addressed to the issue of multimember districting and dilution of the votes of racial minorities, however, it may be that the Court will have little further opportunity to develop the matter in the context of constitutional litigation.9
In Thornburg v. Gingles,10 the Court held that multimember districting violates § 2 of the Voting Rights Act by diluting the voting power of a racial minority when that minority is sufficiently large and geographically compact to constitute a majority in a single-member district, when it is politically cohesive, and when block voting by the majority usually defeats preferred candidates of the minority.11
Finally, the Court has approved the discretionary exercise of equity powers by the lower federal courts in drawing district boundaries and granting other relief in districting and apportionment cases,12 although that power is bounded by the constitutional violations found, so that courts do not have carte blanche, and they should ordinarily respect the structural decisions made by state legislatures and the state constitutions.13
Since the Equal Protection Clause restricts consideration of race and the VRA demands consideration of race, a legislature attempting to produce a lawful districting plan is vulnerable to competing hazards of liability. In an effort to harmonize these conflicting demands, we have assumed that compliance with the VRA may justify the consideration of race in a way that would not otherwise be allowed. In technical terms, we have assumed that complying with the VRA is a compelling state interest, and that a State's consideration of race in making a districting decision is narrowly tailored and thus satisfies strict scrutiny if the State has 'good reasons' for believing that its decision is necessary in order to comply with the VRA.Abbott v. Perez, 138 S. Ct. at 2315 (2018) (quoting Bush v. Vera, 517 U.S. 952, 977 (1996) (plurality opinion); Cooper v. Harris, 137 S. Ct. 1455, 1464 (2017)) (citing Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 800 (2017); Shaw v. Hunt, 517 U.S. 899, 915 (1996)). The Court further clarified that, under Thornburg v. Gingles, [t]o make out a 2 'effects' claim [under the VRA], a plaintiff must establish the three so-called 'Gingles factors.' These are (1) a geographically compact minority population sufficient to constitute a majority in a single-member district, (2) political cohesion among the members of the minority group, and (3) bloc voting by the majority to defeat the minority's preferred candidate. Id. at 33 (citing Gingles, 478 U.S. at 48–51).