Last month the D.C. Circuit upheld the constitutionality of Section 5 of the Voting Rights Act, the controversial statute that requires voting districts with a history of discrimination to obtain “preclearance” from either the Department of Justice or the U.S. District Court for the District of Columbia before modifying state or local voting practices or procedures. A number of Supreme Court watchers, including the Blog of Legal Times, have speculated that the D.C. Circuit’s decision last month in Shelby County, Alabama v. Holder set the stage “for an eventual U.S. Supreme Court battle.”
While the public's attention may be focused on Section 5 for the time being, a lesser known issue involving Section 2 of the Voting Rights Act may soon steal the Court's attention. Last week in Pope v. County of Albany, the Second Circuit called attention to a circuit split over Section 2 of the Act, which generally prohibits states and political subdivisions from maintaining voting requirements, practices, or procedures that “result in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” 42 U.S.C. § 1973(a).
Under Section 2, members of minority groups may bring claims of vote dillution where multimember voting districts “submerge” minority voters into the majority masses. Bartlett v. Strickland, 556 U.S. 1 (2009). To bring an actionable claim in such cases, a plaintiff must show, among other things, that the members of their protected class form a “politically cohesive” minority group. Thornburg v. Gingles, 478 U.S. 30, 51 (1986).
As the Second Circuit pointed out last week, however, “[t]he circuits are split as to whether different minority groups may be aggregated to establish a Section 2 claim.” Writing for the panel, Judge Reena Raggi offered the following summary of this division:
Compare Nixon v. Kent Cnty., 76 F.3d 1381, 1393 (6th Cir. 1996) (en banc) (holding such "coalition suits" impermissible), with Concerned Citizens of Hardee Cnty. v. Hardee Cnty. Bd. of Comm'rs, 906 F.2d 524, 526 (11th Cir. 1990) (approving aggregate Section 2 claims) and Campos v. City of Baytown, 840 F.2d 1240, 1244 (5th Cir. 1988) (same). In Bridgeport Coalition for Fair Representation v. City of Bridgeport, 26 F.3d 271, 275-76 (2d Cir.), vacated on other grounds, 512 U.S. 1283, 115 S. Ct. 35, 129 L. Ed. 2d 931 (1994), this court identified a Section 2 violation in a challenge that aggregated blacks and Hispanics, without specifically ruling that such aggregation was permissible. Meanwhile, the Supreme Court has expressly reserved decision on the issue, while at the same time indicating that a plaintiff relying on an aggregated minority group would have to demonstrate that its members are politically cohesive. See Growe v. Emison, 507 U.S. 25, 41, 113 S. Ct. 1075, 122 L. Ed. 2d 388 (1993); see also Badillo v. City of Stockton, 956 F.2d 884, 890-91 (9th Cir. 1992) (affirming dismissal of Section 2 claim because plaintiffs failed to show sufficient black/Hispanic cohesion, without discussing whether aggregation was in fact permissible).
In finding plaintiffs not to have demonstrated the political cohesiveness of blacks and Hispanics in Albany County, the district court did not, as plaintiffs argue, hold that, as a matter of law, the burden needed to be satisfied through statistical evidence. See Thornburg v. Gingles, 478 U.S. at 57 n.25 (stating that where applicable election data is not available, "courts must rely on other factors" to determine whether Section 2 claim has been proved); see also Brewer v. Ham, 876 F.2d 448, 454 (5th Cir. 1989) (noting that "statistical evidence is not a sine qua non to establishing cohesion"). Rather, the court found that the particular socioeconomic data and anecdotal evidence advanced by plaintiffs to demonstrate the aggregated group's political cohesiveness were not factually convincing. We express no view on this factual determination because plaintiffs' injunction motion fails, in any event, at the third step of Gingles analysis, majority bloc voting. See infra at II.B.3.b.
Pope v. County of Albany, Docket No. 11-3439-cv (2d Cir. N.Y. May 29, 2012).