NewYorkUniversity
LawReview
Current Issue

Volume 77, Number 3

June 2002

Compensating for Low Minority Voter Turnout in Districting

Theane Evangelis

Section 2 of the Voting Rights act guarantees minority voters an equal opportunity to elect their candidates of choice. It requires states to create effective “majority-minority” districts, in which minorities constitute the majority of voters, when voting is racially polarized and the minority population is sufficiently large, compact, and cohesive. Because voter-turnout rates traditionally have been lower in minority communities than in white ones, prevailing academic and judicial opinion holds that states must raise the population of minorities in a certain district above a simple voting-age majority in order for that district to satisfy section 2’s mandate. Theane Evangelis argues that this practice is constitutionally suspect in a situation where low minority turnout cannot be ascribed to past discriminatory practices. The Supreme Court’s holding in Shaw v. Reno dictates that “excessive reliance” on racial factors in districting triggers strict scrutiny. Under strict scrutiny, race-based government policies must be narrowly tailored to satisfy a compelling government interest in remedying past discrimination if it is to pass muster under the Equal Protection Clause of the Fourteenth Amendment. But recent empirical evidence indicates that minority voter turnout has equaled or exceeded white voter turnout in some jurisdictions, casting doubt on the widespread assumption that current low minority turnout stems from past discrimination. Because the state’s justification for augmenting a minority group’s population within a district must be remedial in order to satisfy the compelling state interest prong of the strict scrutiny test, this doubt assumes constitutional proportions. Therefore, a proper interpretation of the Voting Rights Act should not require states to compensate for low turnout when fashioning their majority-minority districts.