Beyond Gingles: influence districts and the pragmatic tradition in voting rights law
Creators: name: Kousser, J. Morgan
Publisher: name: California Institute of Technology
Year: 1993

description: Should minority voters who are not numerous enough to form.a majority of an electoral district have a legal right to protection against vote dilution? This question of "influence districts" is not new, but has yet not been definitely resolved by judicial decisions.  This paper examines the logic, history, and law related to influence districts.

Any proposal for a legal stance on the question of influence districts should continue the dominant line of tradition of Congress and the courts, rather than contravene it.  Therefore, after an introduction. Section II of this paper traces what I term the "practical" or "pragmatic" tradition in voting rights law from the passage of the Reconstruction Constitutional Amendments through the 1982 amendments to the Voting Rights Act and the nearly simultaneously-issued U.S. Supreme Court decision in Rogers v. Lodge. Beginning in 1870, Congress and later. the courts, rejected an abstract, formulaic, "bright-line" approach to voting rights law except during the period of massive discrimination and disfranchisement.  Both Congress and the Supreme Court went beyond protecting the bare right of members of minority groups to vote. Instead. they realized that to cast an effective vote, African-Americans and others had to be sheltered from violence, intimidation, and fraud, and they had to be free to speak and organize. In the 1940s, courts insisted on nondiscrimination in primaries, and in the late 1960s, they helped guarantee the right to be free of recently established discriminatory electoral structures.

The courts and Congress refused to accept two proffered bright lines: one drawn, in effect, between voting per se and everything else, and the other guaranteeing proportional representation. Rather. they adopted the less precise. but more nuanced "totality of the circumstances" test for proving both intent and effect.

In Section III of the paper. I discuss the three-pronged test outlined in Thornburg v. Gingles. Even though Gingles is sometimes interpreted to imply that courts need pay no attention to minority groups that cannot form effective majorities of electoral districts, I point out that Justice Brennan's opinion in Gingles specifically refuses to foreclose that question and argue that both the log1ic of the opinion a.d contemporary political experience contravene the alleged implication. More specifically, I suggest that it is wrong for courts to isolate the first prong of the Gingles test from the other two. Viewed as interconnected, the three parts of the test do not preclude a consideration of the question of influence districts. Indeed. election data from both hypothetical and actual examples demonstrates that. there is no possible theoretical division between influence districts and control districts. I conclude that there is no bright line in Gingles.

Section IV of the paper takes a very brief look at some federal court op1111Ons concerning influence districts. concentrating on the Garza, Armour, and Springfield Park District cases. Their diverse analyses and criticisms that can be made of them suggest two different, but more systematic approaches to the influence district problem - a "results" approach and an "intent" approach - which I flesh out in Section V. In both approaches, I concentrate on totality of the circumstances.standards, in line with the pragmatic tradition, the Congress's intent in extending and amending the Voting Rights Act in 1982, and the Supreme Court's decisions in White v. Regester and Rogers v. Lodge. Finally, I attempt to respond generally to criticisms of protecting the interests of small minority groups. I conclude that both the value of bright-line standards and the dangers of relaxing them have been exaggerated.
description: I want to thank Tony Chavez, Robin Toma, and especially Nancy Ramirez for helpful discussions and suggestions on this paper. They are not. responsible for any flaws in conception or detail. This paper was presented at the Voting Rights Symposium, University of San Francisco, November 6-7, 1992, forthcoming in The University of San Francisco Law Review.
description: Accepted Version - sswp831.pdf