The purpose of Professor Nathaniel Persily’s article, The Promise and Pitfalls of the New Voting Rights Act, is to present an interpretation of the discriminatory effects prong of the new section 5 that will have a greater probability of surviving constitutional scrutiny. In presenting this interpretation, Professor Persily addresses several major issues that delineate the contours of the new section 5 retrogression standard and its application to redistricting plans. Yet, upon closer examination, the proposed new interpretation is very similar to the old retrogression standard with an important difference. The proposed definition of “uniquely preferred candidate of choice” will diminish the opportunity of minority communities to prevent the implementation of redistricting plans that have a retrogressive effect on minority voting strength.

My major comment relates to the absence of any extended analysis of the retrogression standard as implemented in the Beer era. A review of the section 5 administrative rulings and the accompanying documents submitted in conjunction with section 5 approval requests will reveal that the protections afforded by the retrogression standard were not limited solely to majority-minority districts. In addition, the section 5 review process often required the use of racially polarized voting analysis where a candidate’s status as the preferred choice of the minority community was determined. Most of these voting analyses will reveal that the “preferred candidates of choice” were in fact minority candidates. Finally the section 5 review process was flexible in that other sources of information were utilized to determine the fact-specific context in which the proposed voting change would operate. Thus, a more detailed analysis of the Beer-era standard would have provided a useful starting point for readers to compare the old retrogression standard with the new one proposed by Professor Persily.

As noted above, a major difference between Professor Persily’s definition of the new retrogression standard and the old retrogression standard relates to the definition of “preferred candidates of choice” in determining the existence of racially polarized voting. Professor Persily’s definition will reduce the number of protected districts that could potentially be disapproved under the proposed section 5 retrogression standard. This cost is justified because it will minimize the potential for infusing the consideration of race in section 5 decisions and thereby increase the likelihood that Justice Kennedy will find the application of the new retrogression standard constitutional.

Although Professor Persily raises a good point, the proposed standard goes too far. By limiting the definition of “preferred candidates of choice” as proposed, the practical effect of this interpretation will be to permit the adoption of redistricting plans where elections are characterized by racially polarized voting and where the minority community’s ability to elect preferred candidates of choice is diminished. Under Professor Persily’s interpretation a candidate would not achieve the status as a “preferred candidate of choice” unless the candidate was “uniquely” preferred. To be a uniquely “preferred candidate of choice,” the candidate would have to receive an “overwhelming majority” or “supermajority” support from the minority voting community. Moreover, the candidate would have to be opposed by a non-minority voting bloc by an “overwhelming majority” or “supermajority” as well. Finally, the levels of support and nonsupport would have to be similar.

The standard is subject to several criticisms. First, the standard does not define the terms “supermajority” or “overwhelming majority.” Where is the line to be drawn? Moreover once the line is drawn, it then becomes a rigid racial criteria that infuses the section 5 process with racial considerations that might be inimical to Justice Kennedy. Second, the proposed standard would raise the bar for determining racially polarized voting. For example, if the minority community supports a candidate with fifty-five percent of the vote and splits the remainder of its votes at significantly lower levels among nonminority candidates, and the nonminority voters vote against the candidate to the tune of ninety percent, then the candidate could not be considered as the preferred choice of the minority community since levels of minority support and opposition by nonminorities would not be the same. Yet, under traditional applications of racially polarized voting standards, such an election would be considered to be polarized. Thus, I have no dispute with Professor Persily’s conclusion that under his definition, as a practical matter, there would be a reduction in the number of potential election districts that would be disapproved under the new section 5 standard.

On a related point, Professor Persily’s argument could have been strengthened with a discussion of how his proposed retrogression standard would apply to other types of voting changes covered by section 5, including annexations.For example, in evaluating whether a proposed annexation is retrogressive, the focus is on whether the proposed annexation will result in a reduction of minority voting strength in the post-annexation jurisdiction. If the jurisdiction utilizes an at-large method of elections for selecting members to its governing board and there are patterns of racially polarized voting, the Attorney General is usually warrantedin issuing a letter of objection. The letter of objection is usually withdrawn if a jurisdiction implements a districting plan that fairly reflects the minority voting strength in the postannexation jurisdiction. This annexation analysis is very similar to the measurement of a proposed redistricting plan’s retrogressive effect. For this reason, the proposed retrogression standard would also have to explain its application to annexations in order to unify the analysis that is required under section 5.

In conclusion, Professor Persily’s article is the first of many to come that will provide interpretations of the new section 5 retrogression standard. The article is thoroughly researched and provides a comprehensive framework for analyzing any interpretations that are proposed for defining the parameters of the new section 5 retrogression standard. Accordingly, with the reservations noted above, Professor Persily has set the benchmark: future articles advancing interpretive guidelines for assessing the constitutionality of the new retrogression standard will by necessity have to address the issues highlighted in this article. Hopefully the discussion advanced by Professor Persily will ultimately result in a standard that will serve to “‘banish the blight of racial discrimination in voting’ once and for all.”

Joaquin G. Avila is Assistant Professor of Law at Seattle University School of Law. He is the Former President and General Counsel of the Mexican American Legal Defense and Educational Fund. In 1996, the John D. and Catherine T. MacArthur Foundation selected Mr. Avila as a Fellow for his work in the voting rights area. He has successfully argued two cases before the United States Supreme Court involving the interpretation of section 5 of the Voting Rights Act: Lopez v. Monterey County, 519 U.S. 9 (1996), and Lopez v. Monterey County, 525 U.S. 266 (1999). Professor Avila has a forthcoming article on how the awarding of costs to a prevailing party defendant in a voting rights case has chilled the initiation of private actions in California to enforce section 2 of the Act.

Preferred citation: Joaquin G. Avila, Renewing the Promise of Ending Voting Discrimination: A Return to an Effective Section 5 Retrogression Standard, 117 Yale L.J. Pocket Part 251 (2008), http://yalelawjournal.org/forum/renewing-the-promise-of-ending-voting-discrimination-a-return-to-an-effective-section-5-retrogression-standard.