Georgia V. Ashcroft and the Retrogression of Retrogression

29 Pages Posted: 24 Oct 2003

Abstract

Section 5 of the Voting Rights Act of 1965 forbids covered jurisdictions from making any changes in their election laws unless and until the laws first receive federal approval and places the burden of proving that the new law will not lead to a retrogression with respect to minority voters' right to vote.

The Supreme Court's 2003 decision in Georgia v. Ashcroft, 123 S. Ct. 2498 (2003), fundamentally altered the retrogression standard. Before Georgia v. Ashcroft, section 5 review of redistricting had focused consistently on how the proposed changes would affect the ability of minority voters to elect the candidates of their choice. In Georgia v. Ashcroft, however, the Court turned away from this consistent interpretation, and held that a plan could be precleared even if it reduced minority voters' ability to elect their preferred representatives, as long as it preserved a nebulously defined "opportunity to participate in the political process," an opportunity that was "not limited to winning elections." The Court held that the preclearance process should take into account such governance-related concerns as the overall partisan composition of a legislative body and the leadership positions within a legislative body held by minority elected officials and that maintaining or enhancing these factors might counterbalance decreasing minority voters' chances to elect the candidates of their choice.

The Court's analysis was highly abstract, strikingly optimistic, and profoundly ahistorical. It improperly conflated three types of districts: safe districts; coalitional districts; and influence districts. Its understanding of coalitional and influence districts was further undercut by its failure to take into account the role of racial bloc voting. It provided no real guidance on how to analyze the tradeoff it seemed to permit. And it incorrectly equated the interests of minority voters with the interests of incumbent minority politicians, completely ignoring the presence of any conflict of interest between them. Ultimately, the Court's decision continued a trend towards a perverse asymmetry in voting-rights law. In Georgia v. Ashcroft, this asymmetry involves how questions of governance should inform the preclearance inquiry. In Presley v. Etowah County Commission, 502 U.S. 491 (1992), the Court had held that changes which affect only the distribution of power among officials are not subject to section 5 because such changes have no direct relation to, or impact on, voting. But if decreasing or diminishing legislative positions of power for minority voters' representatives of choice cannot show retrogression, it seems perverse to treat maintaining or increasing such power as evidence of nonretrogression.

Keywords: voting rights, redistricting, retrogression, influence districts, Georgia v. Ashcroft

JEL Classification: H47, K41

Suggested Citation

Karlan, Pamela S., Georgia V. Ashcroft and the Retrogression of Retrogression. Available at SSRN: https://ssrn.com/abstract=460460 or http://dx.doi.org/10.2139/ssrn.460460

Pamela S. Karlan (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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