This is part two. Part I can be viewed here.
Can white minority plaintiffs successfully prove a vote dilution claim under Section 2 of the Voting Rights Act of 1965 (VRA)?
Although a federal district court in the Northern District of Texas recently dealt with such a claim, it stopped short of answering this question by sidestepping the question.
Plaintiffs Anne Harding, Gregory R. Jacobs, Holly Knight Morse, and Johannes Peter Schroer challenged a Dallas County Commissioners Court district map from 2011 under Section 2 of the VRA and the Equal Protection Clause of the Fourteenth Amendment claiming that “the absence of a second county commissioner district that is capable of electing a representative of their choice” diminished their capacity to participate in the political process.
The district court found that the plaintiffs failed to prove that their vote had been diluted because they could not prove that if a second district were created that it would be able to elect a representative of the white minority’s choice – “an Anglo Republican.”
The district court points to the fact that of the 45.8% of white voters in Dallas County “roughly 23%” vote along Democratic party lines and, therefore, were a second district drawn with a white majority it is not likely that the white minority would be able to elect a representative of their choice.
Although the district court did in fact rule against these white minority plaintiffs, it did not bar the possibility that white minority plaintiffs could possibly prove a vote dilution claim. There is a good argument it should have. Why? The question comes down to whether the totality of the circumstances analysis requires the presence of a historically disadvantaged minority.
An examination of the totality of the circumstances requires that the court evaluate the facts of the case to see if they align with a series of factors suggested by the Senate that would evidence the existence of vote dilution on account of race.
A plaintiff must not prove the existence of all the factors, known as the Senate Factors, but simply enough that the totality of the circumstances weighs in their favor. The United States Supreme Court has never explicitly stated the required number of factors or combination of factors to meet this burden.
The federal district court of the Northern District of Texas never got to this part of the analysis; however, if it had, perhaps it would be clearer if a white minority can successfully prove a vote dilution claim under Section 2 of the VRA.
Since the Senate Factors, like the entirety the VRA, were crafted to address the disenfranchisement of more traditional minority voters, or more specifically black voters in Southern states, they address issues that are more likely to arise in vote dilution against non-white minority voters.
For example, Senate Factor 1 requires proof of “history of official voting-related discrimination.”
Senate Factor 5 looks at whether the minority group “bear[s] the effects of discrimination in areas such as education… which hinder [its] ability to participate effectively in the political process.”
Where both of these factors examine the institutional discrimination that has prevented the non-white minority’s participation in the electoral process, Senate Factor 7 asks whether this discrimination has prevented the minority group from electing members of their own community to public office.
These three factors indicate the Senate’s focus on protecting minority voters, particularly black voters, as they have historically been discriminated against by the United States in such ways that have denied them access to the electoral process, diminished their capacity to receive social benefits such as education, and prevented them from electing members of their own community to official positions.
A white minority group in Texas would be hard pressed to prove a similar history of discrimination and, therefore, would not likely succeed in providing evidence to satisfy these three factors.
The other factors may seem more race neutral and could perhaps be argued to support a fact pattern that a white minority had been denied opportunity to participate in the political process as prohibited under the VRA; however, it must be noted that these other factors look to practices historically employed by the white majority to deny the non-white minority this same opportunity.
In fact the historical narrative, legislative history, and even the language of the VRA seem to make clear that the legislature intended for the VRA to protect non-white minority voters.
Congress does not seem to have ever considered the protection of white minority voters under the VRA.
One reason why this question is not cut and dry is that when the Commissioners Court held a forum on the maps, a minority member of the Commissioners Court made a racially charged comment denouncing white participants. Because Senate Factor 6 relates to the presence of “overt or subtle racial appeals”, one could argue that factor is present here.
The district court avoided addressing these questions. The question of whether white minority plaintiffs can successfully prove a vote dilution claim under the VRA remains unanswered.