The law protects black voters and Hispanic voters, not coalitions.
By: The Wall Street Journal Editorial Board
America’s increasing diversity puts tension into the Voting Rights Act (VRA), which was written when the U.S. was largely white and black. Take the legal question recently at the Fifth Circuit Court of Appeals: Can racial and language minority groups team up to argue that a redistricting map engages in illegal “vote dilution”?
No, is the Fifth Circuit’s answer, in a 12-6 decision (Petteway v. Galveston Co.) that reversed a circuit precedent. Although this case involves a local commission, the ruling against “minority coalition claims” might have bigger effects. The Fifth Circuit oversees courts in Texas, Louisiana and Mississippi, and judges there now have one less reason to strike down democratically passed district maps, including for Congress after the next census.
Section 2 of the VRA says it’s a violation of the law if members of a protected “class of citizens” have “less opportunity” to “elect representatives of their choice.” The citizen voting-age population of Galveston County, Texas, as of the 2020 census, is 58% white. Another 22.5% is Hispanic, evenly dispersed around the county, and 12.5% is black. Together, black and Hispanic voters used to be a majority in one of four geographic districts for county commissioner.
The redistricting plan passed in 2021 didn’t preserve this minority-majority seat. A federal judge ruled against the map, saying it “illegally dilutes the voting power of Galveston County’s Black and Latino voters.” But Judge Edith Jones, writing for the Fifth Circuit, says the law “does not authorize separately protected minority groups to aggregate their populations for purposes of a vote dilution claim.” She points to the VRA’s text, which speaks of voters in “a protected class,” a singular term.
“Two individuals who do not share the same defining characteristic,” Judge Jones says, “are members of two distinct classes, and their vote dilution claims must be analyzed separately.” She cites the Supreme Court’s precedent, Thornburg v. Gingles (1986). For such a claim to succeed, the High Court held, the minority group must be “sufficiently large and geographically compact” to constitute its own district, and it must be “politically cohesive.”
These terms are nebulous enough with respect to a single demographic group, and Justice Clarence Thomas has assailed the “indeterminacy” of the Gingles framework. Trying to apply it to coalitions is a further stretch. How is a judge supposed to declare that black voters and Hispanic voters have “cohesive” political interests? Could lawsuits come from coalitions of three or four groups?
“Federal courts are ill-suited to resolve minority coalition claims,” Judge Jones says. “No legal principle can explain the superiority of one redistricting choice over any other as applied to more than one racial or language minority, nor do Section 2 or Gingles speak to such choices. Hence, absent intentional discrimination or racial gerrymandering, courts are incapable of revisiting the legislative redistricting choices under the guise of assessing actionable vote dilution.”
Justice Thomas last year criticized the Supreme Court’s VRA jurisprudence for encouraging “a conception of politics as a struggle for power between ‘competing racial factions’” and “making it clear that there are political dividends to be gained in the discovery of new ways to sort voters along racial lines.” Someday he might be vindicated. Until then, thanks to the Fifth Circuit for not making it worse.