The Race-Blind Future of Voting Rights

Abstract

A critical issue in any racial vote dilution case is the proportionality (or lack thereof) of a minority group’s representation: how well (or poorly) minority voters are represented relative to their share of the population. In an important recent opinion, Judge Easterbrook proposed replacing this proportionality benchmark with what we call the “race-blind baseline.” Under this approach, minority voters’ representation would be compared not to their population share but rather to the fraction of seats they would control if districts were drawn randomly and without the use of racial data. Unsurprisingly, conservative advocates have been quick to embrace Judge Easterbrook’s idea. The current Supreme Court, which has already dismantled part of the Voting Rights Act, may also be interested in adopting the race-blind baseline. Yet until now, no one has explored this benchmark’s implications: how it would affect minority representation as well as the partisan balance of power.

In this Article, we tackle these questions for the first time. We do so using a technique—the random generation of district maps by a computer algorithm—that has become the gold standard in partisan gerrymandering cases, but that has not previously been deployed in the context of race and redistricting. We find, first, that in most states, a non-racial redistricting process would yield substantially fewer districts where minority voters are able to elect their preferred candidates. Judge Easterbrook’s proposal would thus cause a considerable drop in minority representation. Second, we show that the minority opportunity districts that arise when lines are drawn randomly are quite different from the ones that now exist. They are less likely to pack minority voters and more apt to represent them through coalitions with white voters. And third, contradicting the conventional wisdom about the link between minority and partisan representation, we demonstrate that Democrats would not benefit from the elimination of opportunity districts under the race-blind baseline. Rather, in the southern states where the benchmark would have the biggest impact, it is Republicans who would gain a partisan edge.

Keywords: election law, Voting Rights Act, redistricting, racial vote dilution, computer algorithms