Non-Retrogression Without Law

University of Chicago Legal Forum Volume 2023 Article 11 2024 Non-Retrogression Without Law Nicholas O. Stephanopoulos University of Chicago Eric McGhee Christopher Warshaw Follow this and additional works at: https://chicagounbound.uchicago.edu/uclf Part of the Law Commons Recommended Citation Stephanopoulos, Nicholas O.; McGhee, Eric; and Warshaw, Christopher (2024) "Non-Retrogression Without Law," University of Chicago Legal Forum: Vol. 2023, Article 11. Available at: https://chicagounbound.uchicago.edu/uclf/vol2023/iss1/11 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized editor of Chicago Unbound. For more information, please contact . Non-Retrogression Without Law Nicholas Stephanopoulos† Eric McGhee†† Christopher Warshaw††† ABSTRACT For five straight cycles (the 1970s through the 2010s), Section 5 of the Voting Rights Act dominated redistricting in states covered by the provision. In these states, district plans had to be precleared with federal authorities before they could be implemented. Preclearance was granted only if plans wouldn’t retrogress, that is, reduce minority representation. Thanks to the Supreme Court’s 2013 decision in Shelby County v. Holder, Section 5 is no longer operative. So what happened to minority representation in formerly covered states after Section 5’s protections were withdrawn? This Article is the first to tackle this important question. We examine all states’ district plans before and after the 2020 round of redistricting at the congressional, state senate, and state house levels. Our primary finding is that there was little retrogression in formerly covered states. In sum, the number of minority ability districts in these states actually rose slightly. We also show that formerly covered states were largely indistinguishable from formerly uncovered states in terms of retrogression. If anything, states unaffected by Shelby County retrogressed marginally more than did states impacted by the ruling. Lastly, we begin to probe some of the factors that might explain this surprising pattern. One possible explanation is the status quo bias of many mapmakers, which is reflected in their tendency to keep minority representation constant. Another potential driver is many line-drawers’ reluctance to use retrogression as a partisan weapon. This reluctance is evident in the similar records of all redistricting authorities with respect to retrogression, as well as in the absence of any relationship between retrogression and change in plans’ partisan performance. I. INTRODUCTION How has Shelby County v. Holder1 affected minority representation in American legislatures? In this momentous 2013 decision, the Supreme Court effectively nullified Section 5 of the Voting Rights Act † †† ††† 1 Kirkland & Ellis Professor of Law, Harvard Law School. Senior Fellow, Public Policy Institute of California. Associate Professor of Political Science, George Washington University. 570 U.S. 529 (2013). 267 268 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2023 (VRA). For nearly half a century, Section 5 had required covered jurisdictions (mostly though not entirely in the South) to obtain permission from the federal government before changing their election laws. Permission (“preclearance”) was granted only if covered jurisdictions could show that their proposed changes wouldn’t result in the worsening of the electoral position of minority voters (“retrogression”). Over the almost fifty years in which Section 5 was in force, minority representation in covered areas didn’t just avoid retrogression. Rather, it increased dramatically, rising about sevenfold in state houses, for example.2 Some scholars anticipated that Shelby County would be “devastating . . . for minority voters in cities, towns, and counties all over this country.”3 Their logic was that many formerly covered jurisdictions continued to have racial and partisan motives to eliminate districts in which minority voters could elect their preferred candidates. Freed from Section 5’s constraints, these jurisdictions would proceed to dismantle many of these districts. Other academics, in contrast, had more muted expectations about Shelby County’s impact. They noted that Shelby County left unscathed the VRA’s other key provision, Section 2, that line-drawers tend to have a status quo bias, and that retrogression is often unnecessary to the achievement of jurisdictions’ redistricting goals.4 These observers therefore predicted that Section 5’s functional demise wouldn’t drastically reduce minority representation. Now that ten years have gone by since Shelby County—spanning, critically, the bulk of the 2020 redistricting cycle—which camp has been proven right? Surprisingly, there’s next to no literature on how the effective annulment of Section 5 has affected the legislative representation of minority voters. In this Article, we provide the first comprehensive treatment of this important issue. We examine statewide district plans at the congressional, state senate, and state house levels before and after they were redrawn following the 2020 Census. We also study the maps of states formerly covered and uncovered by Section 5. The degree of retrogression in formerly uncovered states is both interesting in its own right and a benchmark with which to compare changes in minority representation in formerly covered states. In performing these analyses, we face a pair of challenges: defining districts in which minority voters are able to elect their candidates of choice (“minority ability districts”) and determining which districts 2 See Nicholas O. Stephanopoulos, Race, Place, and Power, 68 STAN. L. REV. 1323, 1369 (2016). 3 See, e.g., Sherrilyn A. Ifill, Voting-Rights Ruling: A Shameful Decision, THE ROOT (June 26, 2013), https://www.theroot.com/voting-rights-ruling-a-shameful-decision-1790897025 [https:// perma.cc/AW2U-BSCA]. 4 See, e.g., Samuel Issacharoff, Is Section 5 of the Voting Rights Act a Victim of Its Own Success?, 104 COLUM. L. REV. 1710, 1731 (2004) (focusing on Section 2’s continued vitality). 267] NON-RETROGRESSION WITHOUT LAW 269 (before and after the 2020 round of redistricting) satisfy this definition. Supreme Court precedent forbids using crude racial targets to ascertain ability district status.5 So instead we rely on a three-part test derived from lower court rulings just before Shelby County’s curtain fell on Section 5 jurisprudence.6 Under this test, an ability district is one where (1) the minority-preferred candidate typically prevails in the general election; (2) minority votes typically outnumber white votes for that candidate; and (3) the votes of members of different minority groups (like African Americans and Hispanics) are aggregated only if each group’s voters typically favor the same candidate. Our main methodological tool for establishing which pre- an (...truncated)