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Judicial Ideology and the Transformation of Voting Rights Jurisprudence


Adam B. Cox


New York University School of Law

Thomas J. Miles


University of Chicago - Law School

December 3, 2008

University of Chicago Law Review, Vol. 75, 2008
University of Chicago Law & Economics, Olin Working Paper No. 425
University of Chicago, Public Law Working Paper No. 231

Abstract:     
For two decades, the doctrinal test laid out in Thornburg v. Gingles has been the centerpiece of vote dilution litigation in the United States. Gingles defined a sequential, two-part framework combining a set of rule-like preconditions to liability with a standard-like inquiry into the totality of the circumstances. Despite this elaborate framework, emerging empirical work shows that political ideology connects closely with how judges have decided vote dilution cases; Democratic appointees have proven much more likely than Republican appointees to favor liability under Section 2 of the Voting Rights Act. This work raises the question of what role the Gingles framework really plays in voting rights litigation. More basically, it raises the fundamental question of whether legal doctrine actually constrains judicial decisionmaking. Using a dataset of every Section 2 decision issued since Gingles, this Article explores these twin puzzles. It finds substantial evidence that legal rules are indeed more ideologically constraining than standards. Ideological divisions are much more pronounced in the standard-like second step of Gingles than under the more rule-like preconditions. Moreover, the Article shows that the doctrinal dynamics of vote dilution litigation have changed dramatically over the past two decades. As the representational and political implications of vote dilution claims have shifted, the Gingles factors that both judges and scholars claim are central to the liability inquiry have become far less important. Courts' sharp movement away from the centrality of the Gingles factors amounts to a largely unrecognized second transformation of voting rights litigation.

Number of Pages in PDF File: 53

Keywords: voting rights act, judicial behavior, race, partisanship, election law, minority voting rights

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Date posted: September 1, 2008 ; Last revised: December 4, 2008

Suggested Citation

Cox, Adam B. and Miles, Thomas J., Judicial Ideology and the Transformation of Voting Rights Jurisprudence (December 3, 2008). University of Chicago Law & Economics, Olin Working Paper No. 425; University of Chicago Law & Economics, Olin Working Paper No. 425; University of Chicago, Public Law Working Paper No. 231. Available at SSRN: http://ssrn.com/abstract=1260998

Contact Information

Adam B. Cox (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
Thomas J. Miles
University of Chicago - Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
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