The Intuition behind RPV

Overview

Today, we talk about the logic underlying racially polarized voting (RPV) analyses. Specifically, we cover:

1. how you define it

2. how you harvest data for it

3. how it works (we will do a math-based discussion later; right now, we focus on the “logic”)

4. RPV analyses in light of the Shelby decision

1. Defining Racially Polarized Voting (RPV)

RPV, briefly explained

• Racially polarized voting exists when voters of different racial or ethnic groups exhibit very different candidate preferences in an election.

• It means simply that voters of different groups are voting in polar opposite directions, rather than in a coalition.

• This does not mean voters are racist; RPV analyses only measure outcomes and determine whether patterns exist

RPV, briefly explained

• Bottom line: minority voters are voting one way, and non-minority voters are voting another way

• But since White voters are (typically) more numerous in the at-large system, minority voters systematically lose.

• RPV analysis is about the individual voters within a jurisdiction. It does not imply that a governing body or appointed officials are acting in a discriminatory fashion.

• Even if a governing body is well intentioned, the individual voters may behave in a way that blocks minority representation.

RPV, briefly explained

You need to establish a pattern of racially polarized voting

• One single election does not make or break the case

• Single elections can be informative, but usually courts ask to see patterns across multiple election contests

Defining a minority-preferred candidate

• Does that mean 50.1% of the vote?
• Does it mean the first-place candidate with most votes?
• Primary vs. General vs. Multi-candidate elections?

RPV, briefly explained

• RPV can vary in intensity, and you can quantify it using statistical analysis that have been accepted by the courts.

• We have data collection methods that can tell us electoral preferences within a jurisdiction. We can also obtain demographic data, which allows us to determine how certain constituencies are voting.

• While controversial in other contexts a technique called Ecological Inference (EI) that has been accepted by courts as a reliable method.

2. Harvesting data for RPV analyses

Data need not be quantitative…

RPV analyses can take on many flavors

• Some scholars do them qualitatively (using interviews, forcus groups, etc.)

• Others analyze public records or legal documents, etc. using an historical (rather than social science) approach

• Even within the social sciences, analysts make compelling arguments using survey-based (e.g., exit poll) data.

There are many ways to use evidence. We will focus here on using statistics to explore archival data.

…but when data is quantitative…

• Archival evidence comes from public databases

• Election results at (across jurisdictions) come from official county registrar of voters websites

• Voter’s ethnicity data comes from official records:

  • In former Section 5 jurisdictions, race is recorded
  • In non-Section 5 areas, we use surname lists, the Census, etc.

• Start by looking at endogenous elections—i.e., those being challenged by the lawsuit (e.g. city council…)

• Analysis should also bring in exogenous elections (i.e., those not related to case)

3. The (non-math) logic of RPV analyses

The (non-math) logic of RPV analyses

Federal Voting Rights Acts

• 15th Amendment: “the right to vote shall not be denied or abridged on the basis of race, color or previous condition of servitude…”

• 1964 Civil Rights Act (CRA): Title I calls for any qualifications for voter registration to be applied equally to all, prohibits a voter from being rejected for non-material errors on an application, and outlines specific requirements for literacy tests.

  • Unfortunately, CRA has no enforcement mechanism of federal oversight on the acts requirements

The (non-math) logic of RPV analyses

1965 Voting Rights Act (VRA)

• Section 2 prohibits any voting standards, practices, or procedures (including redistricting plans) that denies or dilutes minority voting strength.

• Section 5 requires covered jurisdictions to submit any election changes (including redistricting plans) to the DOJ. To obtain preclearance, a jurisdiction must demonstrate that the change does not have a:

  • racially discriminatory effect—the plan cannot undermine minority voting strength;
  • racially discriminatory purpose (even if the outcome does not discriminate).

The (non-math) logic of RPV analyses

Polarization and dilution (as discussed in the 1965 VRA)

• Vote dilution analysis should be conducted to ensure that a proposed redistricting plan does not fragment/ submerge/unnecessarily pack a geographically-concentrated minority population.

• If a jurisdiction is covered by Section 5, then the analysis should be conducted to ensure that the proposed redistricting plan is not retrogressive (compared to the plan in place) with regard to minority voting strength.

The (non-math) logic of RPV analyses

Polarization and dilution (as discussed in the 1965 VRA)

• According to Thornburg v. Gingles (1986) (the first Supreme Court case to interpret the 1982 amendments to the VRA incorporating as a “results test”), racial polarization is the evidentiary linchpin of a vote dilution claim.

• Racial bloc voting analysis is required to determine if minorities vote cohesively and if Whites bloc-vote to defeat minority-preferred candidates (2 of the 3 Gingles preconditions for establishing illegal vote dilution).

• Section 5 regulations also point to “the extent to which voting in the jurisdiction is racially polarized” as a factor considered in making preclearance determinations.

The (non-math) logic of RPV analyses

Assessing the degree of polarized voting (based on standards established in Gingles):

1. Minority group must be of sufficient size & geographically compact enough to allow for the creation of a group-specifc single-member district.

2. Must show that minority group is politically cohesive.

3. Must show that minority’s candidate of choice is typically defeated by the majority voting bloc.

The (non-math) logic of RPV analyses

Assessing the degree of polarized voting, cont’d.

• When checking for racially polarized voting, ask yourself:

  • Does a candidate of choice exist for minority voters?

  • Do majority voters usually defeat the minority-preferred candidate?

The “sufficient size” standard gets explored indirectly (oftentimes, as an artifact of our empirical tests)

The (non-math) logic of RPV analyses

To summarize…

4. RPV, post-Shelby

RPV, post-Shelby

Shelby County v. Holder (2013):

• Supreme Court held that it is unconstitutional to use the coverage formula in Section 4(b) of the VRA to determine which jurisdictions are subject to the preclearance requirement of Section 5.

• Supreme Court did not rule on the constitutionality of Section 5 itself.

RPV, post-Shelby

Shelby County v. Holder (2013):

• Because of Shelby, jurisdictions identified by the coverage formula" in Section 4(b) no longer need preclearance for new voting changes

  • (unless they are covered by a separate court order entered under Section 3(c) of the VRA).

RPV, post-Shelby

Since the Shelby decision…

• In the summer of 2016, the Fourth Circuit found that NC’s newly-implemented voting restrictions “target[ed] African-Americans with almost surgical precision.”

• Since the 2016 election, federal courts issued successive decisions finding that states and localities engaged in intentional discrimination in formulating their voting and election rules.

• Since the 2020 election, there have been even more challenges to voting access, voting rights, the perceived legitimacy of the election, etc.

These decisions partially resulted from increasingly aggressive and discriminatory tactics by state legislators.

RPV, post-Shelby

The need for RPV analyses is clear, for attemtps at voter suppression, dilution, etc. are on the rise.

• We therefore need concerted efforts in the wake of Shelby to hold jurisdictions fully accountable for their actions

• And we can do this by alleging and proving claims of intentional discrimination (rather than relying solely on Section 2)

RPV, post-Shelby

Working around the limits (Lang and Herbert 2018)

Intentional discrimination claims—brought where appropriate and supported by the evidence—force an appraisal of the true motives underlying laws passed behind the “cloak of ballot integrity.” These claims can help spark a discussion about the continuing impact of racial discrimination in elections, and remind us how far we still have to go.

References (FYI)

Lang, Danielle and J. Gerald Hebert. 2018. “A Post-Shelby Strategy: Exposing Discriminatory Intent in Voting Rights Litigation.” Yale Law Journal 127: 779 - 792.