California Law Review
Christopher S. Elmendorf and Douglas M. Spencer, The Geography of Racial Stereotyping: Evidence and Implications for VRA ‘Preclearance’ After Shelby County, 102 Calif. L. Rev. 1123 (2014), available at https://scholar.law.colorado.edu/faculty-articles/1524.
The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This Article proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and who vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that the racial-stereotyping, polarized-voting, and population-size criteria would yield similar patterns of coverage, at least with respect to African Americans, and we show, ironically, that the new pattern of coverage would coincide with historic coverage under the "outdated" formula invalidated by Shelby County. Recently developed statistical techniques permit the new coverage formula to be further refined based on estimates of racial stereotyping within substate geographic units, such as cities and counties. We suggest that Congress establish default rules for coverage based on our state-level results, and delegate authority to make substate coverage determinations to an administrative agency (along with other responsibilities for keeping the coverage formula up to date). Finally, we show that if Congress does not act, the courts could use our results to reestablish coverage in a number of states, entering much broader "bail in" remedies for constitutional violations than would otherwise be justified.
Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required.