Supreme Court cites law review article by Richard Pildes 12 times in voting rights decision
In the Supreme Court’s March 9 decision in Bartlett v. Strickland, which held that a part of the Voting Rights Act aimed at helping minorities elect their preferred candidates only applies in electoral districts where minorities make up at least half of the voting-age population, the Court cited the work of Richard Pildes, Sudler Family Professor of Constitutional Law, a staggering 12 times.
Pildes’ article, “Is Voting Rights Law Now at War with Itself? Social Science and Voting Rights in the 2000s,” published in the North Carolina Law Review in 2002, was cited four times in the plurality opinion and eight times in the various dissenting opinions.
The 5-4 decision came in the case of a North Carolina plan that sought to preserve the influence of African-American voters even though they made up just 39 percent of the voting-age population in a state legislative district. Although not a majority, the African-American voters were numerous enough to effectively determine the outcome of elections, the state argued in urging the extension of the civil rights law’s provision to the district.
In his article, Pildes reviewed studies showing small but reliable crossover voting by whites in districts where minority voters have demonstrated the ability to elect their preferred candidates without constituting half of the population in that district. But the court would not extend the law to these so-called “crossover districts.”
The 50 percent “rule draws clear lines for courts and legislatures alike,” Justice Anthony Kennedy wrote for the plurality, which included Chief Justice John Roberts and Justice Samuel Alito. Justices Clarence Thomas and Antonin Scalia concurred in the judgment only.
In 2007, the North Carolina Supreme Court struck down the district, saying that the Voting Rights Act applies only to districts with a numerical minority of voters and that the district violated a provision of the state constitution keeping district boundaries from crossing county lines.
Justice Kennedy wrote that, absent prohibitions like North Carolina’s against crossing county lines, “states that wish to draw crossover districts are free to do so,” but they are not required. He quoted Pildes’ article: “Districts could still be designed in such places that encouraged coalitions across racial lines, but these districts would result from legislative choice, not . . . obligation.”
"Gingles in Limbo: Coalitional Districts, Party Primaries and Manageable Vote Dilution Claims," a note published in the New York University Law Review in 2005 by Luke McLoughlin '05, a former student and advisee of Pildes, was also cited in Justice Kennedy's opinion.
Justice David Souter, joined in his dissenting opinion by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer, wrote that a district like the one in North Carolina should be protected by federal law “so long as a cohesive minority population is large enough to elect its chosen candidate when combined with a reliable number of crossover voters from an otherwise polarized majority.” He cited Pildes’ article to support the proposition that “of course minority voters constituting less than 50% of the voting population can have an opportunity to elect the candidates of their choice, as amply shown by empirical studies confirming that such minority groups regularly elect their preferred candidates with the help of modest crossover by members of the majority.”
Pildes told the New York Times that current events — including the fact that both major political parties are led by African-Americans — have complicated the legal landscape, creating “tremendous pressure on a statute that was primarily structured for an earlier era in which blacks were completely excluded from office.“
In April, the court will hear a more significant challenge to another provision of the Voting Rights Act that requires all or parts of 16 states with a history of racial discrimination to get federal approval before implementing any changes in their voting procedures.