Bartlett v. Strickland


If a racial minority group constitutes less than 50% of a voting district’s population, but enough other voters tend to vote for the minority group’s preferred candidate to enable it to elect the leader of its choice, does Section 2 of the Voting Rights Act, , require a state to place that group within its own voting district?

Oral argument: 
October 14, 2008

Section 2 of the Voting Rights Act declares that a state may not act in a way that impairs or dilutes, on account of race or color, a citizen’s opportunity to participate in the political process and to elect representatives of his or her choice. In 2003, North Carolina’s General Assembly redrew its district lines and created House District 18 with the intention of complying with Section 2 of the Voting Rights Act. The “controlling majority” of citizens in the new House District 18 consisted of thirty-nine percent African-American voters and enough non-African-American “crossover” voters to allow the African-American voters to elect a leader of their choice. This redistricting decision was challenged on the grounds that the Voting Rights Act does not require the creation of districts in which African-Americans or other ethnic minorities do not, by themselves, constitute a voting majority. The question the Supreme Court will decide is whether a racial minority group must constitute a “controlling majority” or an actual majority in order to trigger the districting requirements of Section 2 of the Voting Rights Act.

Questions as Framed for the Court by the Parties 

Whether a racial minority group that constitutes less than 50% of a proposed district’s population can state a vote dilution claim under Section 2 of the Voting Rights Act,


In 2003, North Carolina’s General Assembly redrew voting district lines throughout North Carolina in response to the 2000 decennial census. It split Pender County into two separate voting districts in order to create House District 18, which contained an African-American voting age population of thirty-nine percent. Because District 18 shared portions of two counties, the Pender County Board of Commissioners and Dwight Strickland, a county commissioner of Pender County, sued North Carolina, claiming that its redistricting violated the Whole County Provision (“WCP”) of North Carolina’s Constitution. The WCP states that a county shall not be divided in the formation of a voting district. The Supreme Court of North Carolina determined that Pender County lacked standing (that is, it did not have a sufficient stake in the case) to sue North Carolina, and that Strickland could proceed only in his capacity as an individual. .

North Carolina’s defense was that Section 2 of the Voting Rights Act of 1965 (“VRA”), which prohibits vote dilution, required the creation of House District 18 despite the resulting split of Pender County. Vote dilution occurs when the voting strength of a racial or other minority group is minimized or cancelled out by state action, which includes drawing voting districts. North Carolina legislators believed that Section 2 mandated the creation of House District 18 because the African American voters there had a “controlling majority,” which consisted of African American voters and a sufficient number of white voters who voted in line with them to elect the African Americans’ preferred candidates for office. The Assembly thus approved the redistricting plan as one safe from any vote dilution claims and one that properly complied with the WCP as fully as possible without violating federal law, which trumps state law in the area of redistricting requirements.

In determining whether Section 2 of the VRA did in fact require the North Carolina General Assembly to split Pender County into two voting districts and create a “crossover” district, the United States Supreme Court will look to Thornburg v. Gingles, the leading Supreme Court case interpreting Section 2 of the VRA. Gingles lays out three “necessary preconditions” a plaintiff must demonstrate to establish that a legislative district must be drawn to comply with Section 2, or that an existing district violates Section 2. First, a racial minority population must be “sufficiently large and geographically compact to constitute a majority in a single-member district.” Second, the racial minority population must be “politically cohesive” and thus vote as a bloc. Third, the racial majority population must “vote[] sufficiently as a bloc to enable it . . . usually to defeat the minority’s preferred candidate.

On January 9, 2006, the North Carolina Superior Court issued a summary judgment order holding that House District 18 met all three of the Gingles conditions, and that therefore Section 2 of the VRA required the redistricting plan in order to ensure that African-American voters did not suffer from vote dilution. On appeal, the North Carolina Supreme Court reversed the Superior Court’s decision and held that the VRA did not mandate the creation of a “crossover” district because the African-American minority group did not constitute 50% of the voting population.

The United States Supreme Court granted certiorari on March 17, 2008 to decide the issue of whether Section 2 of the VRA requires a state to protect a racial minority group’s voting power if it constitutes less than 50% of the voting population of a proposed district, but enough “crossover” voters vote for the racial minority group’s preferred candidate to enable it to elect the leader of its choice.



Section 2 of the Voting Rights Act provides that “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State. . . in a manner which results in a denial or abridgement of the right of any citizen. . . to vote on account of race or color.” . A claim that one’s opportunity to participate effectively in the political process and elect a candidate of his or her choice is a Section 2 vote dilution claim. The Supreme Court ruled in Thornburg v. Gingles that in order to bring such a claim, the plaintiff must satisfy three “necessary preconditions:” (1) that the racial minority group is “sufficiently large and geographically compact to constitute a majority in a single-member district;” (2) that the minority group is “politically cohesive” and votes as a bloc; and (3) that the white majority “vote sufficiently as a bloc to enable it . . . usually to defeat the minority’s preferred candidate.”

Strickland argues, and the Supreme Court of North Carolina below agreed, that to constitute a majority under the first prong of the Gingles test, the racial minority group must exceed 50% of the population of a proposed election district, since otherwise the group would not have had the votes to elect a representative of its choice. Strickland, while acknowledging the Voting Rights Act’s role in ensuring that African Americans can effectively participate in politics, believes their rights are limited and that they should not “be entitled to constitutional protection from defeat at the polls.” Specifically, Strickland’s position is that while minorities have a right to “elect representatives of their choice” under the Voting Rights Act, they are not also given a protected right to form coalitions with non minority voters. His contention is that if the 50% rule is abandoned, Section 2 will be expanded to “permit minority citizens to benefit from special treatment.”

Bartlett counters that the Superior Court’s interpretation of the Gingles test, which focuses instead on whether the minority group forms “a de facto majority that can elect candidates of their own choosing, considering the totality of the circumstances,” was correct. He contests that sheer numbers alone are not a sufficient benchmark, since racial minority groups routinely elect their preferred candidates from districts that are less than 50% minority. In fact, as Georgia v. Ashcroft points out, “various studies have suggested that the most effective way to maximize minority voting strength may be to create more influence or coalition districts.” (citing , For example, Bartlett highlights that currently twenty-two of the forty-two black Congressmen are elected from districts that are less than 50% black. Bartlett also points out that in this case, “District 18 has a total black population of 42.9% and black voting-age population of 39.4%—percentages that are above the historical levels necessary to give black voters the opportunity to elect their candidate of choice.”


According to Bartlett, while the ultimate objective of the Voting Rights Act was “minimizing the role of race in politics,” the 50% rule does exactly the opposite, putting race at the forefront by pressuring states to take it into account even more than necessary while redistricting. Further, he argues that the 50% rule also diminishes the state’s ability to “pursue other legitimate [racially neutral] redistricting objectives.” When districts are created solely to satisfy the 50% rule, Bartlett fears that it runs the risk of creating an even greater race divide and eliminating the desire to form coalitions. The NAACP cautions that the 50% rule allows for jurisdictions to pack as many minority voters as possible into a district in order to prevent them from electing candidates of their choice in surrounding districts, or fragment a minority population into multiple districts to dilute their vote.

Strickland claims instead that without the 50% rule restricting redistricting efforts, there will be greater opportunity for racial gerrymandering, which is dividing districts using irregular lines for the purpose of advancing a particular racial group’s interests. He fears that absent a clear guideline for districting, efforts could be taken to draw districts that would dilute minority strength. Further, he argues that racial gerrymandering is damaging even if done for remedial purposes, because it “threatens to carry us further from the goal of a political system in which race no longer matters.” (quoting .


According to Strickland, the actual language of Section 2 of the Voting Rights Act as interpreted by the courts requires that a racial minority group wishing to make a claim constitutes 50% of the population in the proposed district. Further, he points out that the Supreme Court has never found a Voting Rights Act violation in a district where the racial minority did not comprise a majority of the population.

Strickland argues that Congress as well as the courts favor a readily ascertainable, objective test for vote dilution in order to minimize the conjecture and speculation in deciding a claim, and that without the 50% rule, the test would require an examination “into the predictability of crossover voting” as well as “predictions about future political changes and the reliability and nature of political coalitions and voting behavior.” Further, Strickland says that since Congress has the authority to amend the Act to make it clearer, Congress’s failure to make any changes to Section 2 in light of these court decisions indicates that the 50% rule is the correct interpretation.

On the contrary, Bartlett contends that only protecting racial minorities’ right to vote when they constitute 50% of a district’s population is inconsistent with the purpose of the Voting Rights Act, which is to provide racial minorities an equal opportunity to participate in the political process and ensure that minority voters are treated fairly and equitably. He emphasizes the extension of this right to all minorities, pointing to the text of the Voting Rights Act which specifically prohibits a voting practice that deprives minority voters of the “opportunity . . . to elect representatives of their choice” and “imposes no further requirement that they also constitute a numerical majority.”

In response to Strickland’s argument regarding Congressional intent, Bartlett points out that Congressional inaction as argued by Strickland is “a poor indication of Congressional intent.” Further, he points out Chief Justice Parker’s dissent in the case below that disagrees with Strickland’s position, stating instead that a “rigid numerical majority requirement is inconsistent with both [the] Court’s precedent and the intent of [Congress].

While Bartlett agrees with Strickland’s argument that ease of administration is a valid concern, he argues that ease of application is not a sufficient justification for “adding a requirement to a statute that is inconsistent with the text and purpose” of the VRA, as the 50% rule would be. Bartlett denies that the 50% rule is the only way to achieve the goal of efficiency in administration and points to other potential alternatives. For example, he looks to Justice Souter’s suggestion in LULAC v. Perry, which stated that the Gingles test could be satisfied when a racial minority “constitute[s] a majority of those voting in the primary of the dominant party . . . since a dominant party’s primary can determine the representative ultimately elected.”


Does Section 2 of the VRA protect racial minority groups which represent less than 50% of a district’s population, but nevertheless have a controlling vote when combined with “crossover” voters?

Bartlett argues that both past decisions by the Supreme Court, and Section 2 of the VRA, do not impose a bright-line 50% rule, but instead an opportunity-to-elect standard. On the other hand, Strickland argues that the language of the VRA and the test points to using a 50% rule.


Many parties in support of Strickland cite a concern that if the Court refuses to accept the 50% rule and instead adopts the more flexible opportunity-to-elect standard, the floodgates of litigation will open. They argue that an opportunity-to-elect standard is too subjective, making it overly burdensome for courts to “discern equity,” and giving them too much “unbridled discretion.” These parties contend that under the opportunity-to-elect standard, conceivably any redistricting plan could be challenged if there were enough disparate racial minorities in a district to plausibly argue that they had some potential to elect a leader of their choice. Therefore, some argue, without a clear and objective 50% rule, states will more likely have to defend their redistricting plans in court, and will spend more money doing so.

Others, including fourteen states around the country, argue that an opportunity-to-elect standard is indeed clear and judicially manageable. More importantly, some amici posit that an opportunity-to-elect standard “is a far more accurate measure of minority voter effectiveness than an arbitrary numerical population standard.” In support of this contention, they cite additional unanswered questions that the 50% rule would present, such as “50% of what?” and “who should count as an African-American?” The Supreme Court of North Carolina’s answer to the first question was that 50% should mean 50% of the voting-age population. Amici respond that the voting-age population percentages reflected in the decennial census do not differentiate between citizens and noncitizens, thus skewing the percentages of racial groups who are actually eligible to vote. They further argue that there is no clear answer to the second question because the census form creates over a hundred possible answers to questions of race and ethnicity, about half of which are somewhat ambiguous, for determining who counts as African-American. The Campaign Legal Center argues that it is easier to determine the more relevant question of a racial minority’s ability to vote simply by analyzing historical voter turnout differentials in a particular district. Other amici assert that because the Gingles three-prong test already requires this type of analysis, it would be simple to apply it to an opportunity-to-elect standard.


Aside from the issues of potential burdens and judicial economy, many amici assert that, more importantly, the opportunity-to-elect standard is needed to remedy the history of ongoing racial discrimination at the polls. They refer to “extensive findings of past and continuing discrimination” in the area of District 18, evidenced by the failure of African American voters to participate effectively in legislative elections there until the last two reapportionment cycles. They further point out that racial minority groups represent less than 50% of the population in many districts that elect racial minority leaders, and that, in fact, the Supreme Court of North Carolina found in Pender County v. Bartlett that an African-American voting-age population of 38.37 percent was sufficient in past elections to elect African-American leaders in Pender County. Amici argue that racial minority groups in districts where they do not constitute 50% of the population, but nevertheless do elect their preferred leaders, “are no less in need of the vote dilution protections of Section 2 than are [racial minority groups] in districts where they happen to constitute 50% of the population.”

In response, others argue that the opportunity-to-elect standard would go beyond the purpose of Section 2 of the VRA. They maintain that the VRA’s purpose is to ensure that a minority group is not denied an equal opportunity to elect a leader of its choice, not to “give a minority group more voting power.” (quoting They contend that for any group to be able to elect a leader of its choice, it must form an actual majority, and that without this actual majority, the group can claim only the ability to influence an election, not the ability to elect its preferred candidate. Therefore, they argue, adopting the opportunity-to-elect standard would go beyond merely protecting racial minority groups, and would instead give them more voting power than they otherwise would have.


In Bartlett v. Strickland, the Supreme Court will rule on the issue of whether a racial minority group that constitutes less than 50% of a proposed district’s population, but enough to enable it to elect the leader of its choice with the help from “crossover” voters, can state a vote dilution claim under Section 2 of the Voting Rights Act. The Court has issued rulings interpreting the meaning of Section 2 only rarely in recent years, and this decision will surely meet with criticism and commentary both when it is issued and in the future. In deciding whether an absolute majority is required for Section 2 protection, the Court will inevitably discuss the original purpose of the VRA in light of the way voting patterns have changed since its passage in 1965. The Court’s decision will have a broad effect on racial minorities’ voting rights in districts where they have strong political influence but constitute less than a majority of the voting age population, and will also influence the rules legislatures across the country will have to follow when redistricting in the future.

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