THE CASE FOR STATE ATTORNEY GENERAL …

1 THE CASE FOR STATE ATTORNEY GENERALENFORCEMENT OF THE VOTING RIGHTS ACT AGAINSTLOCAL GOVERNMENTSP erry Grossman*ABSTRACTThe summer of 2016 showed that racial discrimination in voting is alive andwell, as federal courts across the country struck down STATE statutes that dispropor-tionately disenfranchise minority voters, including voter ID laws, restrictions onearly voting, and racially gerrymandered legislative districts. However, at the locallevel, discriminatory practices in the nation s approximately 89,000 political subdi-visions have gone largely uninvestigated and conflicts between communities of color and law enforcement have high-lighted the failure of local governments in places like Ferguson, Missouri toadequately represent the interests of minority voters.

2 These failures of representa-tion, which occur in progressive states like California as well as in moreconservative states , are due in part to local election laws and practices that diluteminority voting strength. Section 2 of the Voting Rights Act provides a cause ofaction against vote dilution, but such cases are unusually complicated, expensive,and time-consuming with no promise of damages and highly uncertain recovery ofattorneys fees to a prevailing plaintiff. As a result, few plaintiffs outside the federalDepartment of Justice and major civil rights groups have mustered the resources toprosecute cases under the federal Voting Rights Act. Although states could passtheir own laws against vote dilution that would encourage more private plaintiffsto investigate and prosecute offending local governments, only California haspassed such a law.

3 The California Voting Rights Act (CVRA) addresses only asingle discriminatory practice the pervasive use of at-large methods of election injurisdictions where racially polarized voting systematically defeats minority candi-dates. The CVRA has revealed that (1) vote dilution is widespread; (2) case-by-caselitigation can have a deterrent effect under conditions that encourage private en-forcement; and (3) more enforcement is needed to prevent local governments fromevading scrutiny or , because the CVRA s effectiveness is limited to only one class of practices inonly one STATE , to increase the level of enforcement there is a need for new votingrights plaintiffs with the resources both to bring cases under Section 2 of the Voting*Perry Grossman is an associate at Boies, Schiller & Flexner LLP, former law clerk toHon.

4 Barry G. Silverman, and graduate of Stanford Law School. He filed amicus briefs inShelby County v. Holder on behalf of Joaquin Avila et al., and in Northwest Municipal UtilityDistrict No. 1. v. Holder on behalf of Julius Chambers et al. The author would like to thankProf. Ellen Katz; Nancy Beninati, Supervising Deputy ATTORNEY GENERAL , CaliforniaDepartment of Justice; Kristen Clarke, former Chief, Civil Rights Bureau, New York AttorneyGeneral s Office; Prof. J. Morgan Kousser; Prof. Rick Valelly; Prof. Seth Endo; KaitlynMurphy; and Jolyn of Michigan Journal of Law Reform[VOL. 50:3 Rights Act and to monitor compliance with judgments and settlements. STATE attor-neys GENERAL can fill this need, and possess some advantages relative to both theUnited states Department of Justice ( , a narrower geographic focus and theability to collect attorneys fees under the Voting Rights Act) and private plaintiffs( , an imprimatur of law enforcement , in-house investigatory resources, and a bully pulpit ).]

5 With the election of Donald Trump and the confirmation of JeffSessions as ATTORNEY GENERAL ,the need to find more resources to combat discrimina-tion in voting is imperative as the Department of Justice appears poised to abandonObama Administration s enforcement efforts in favor of investigating groundlessallegations of voter date, no STATE ATTORNEY GENERAL has ever brought a Section 2 claim against apolitical subdivision, but this Article makes the case that STATE attorneys generalcan, and should, enforce the federal Voting Rights Act against local governments toprotect minority 567I. A BRIEF HISTORY OF LEGAL PROTECTIONS FORMINORITY VOTING RIGHTS AND THEIR 571II. THE CURRENT LANDSCAPE OF INFRINGEMENTS ONMINORITY VOTING 579 III.

6 THE NEED FOR ADDITIONAL RESOURCES TO SUPPORTVOTING RIGHTS 591IV. STATE ATTORNEYS GENERAL ARE WELL-POSITIONED TOENFORCE THE VOTING RIGHTS ACT AGAINST 599V. THE INADEQUACY OF CURRENTLY AVAILABLE STATE LAWREMEDIES MAKES SECTION 2 THE BEST AVAILABLEOPTION FOR 604VI. STATE STANDING TO BRING ACTIONS UNDER THEVOTING RIGHTS 610A. Article III 6101. Quasi-Sovereign 6122. Encouraging Voter Participation andProtecting Against Discrimination as Quasi-Sovereign 6123. Economic 6154. Injury to a Sufficiently Substantial Segment ofthe 6165. Inability to Obtain Relief Through 618B. Statutory 6191. History and 6212. Distinguishing Roberts and Its 622 SPRING2017] STATE ATTORNEY GENERAL enforcement of the VRA567C.

7 Overcoming Federal Courts Distrust of STATE VotingRights enforcement 626 INTRODUCTIONThe terrifying, disheartening, and ongoing tale of conflict be-tween law enforcement and communities of color is the most publicsymptom of the failure to represent the interests of minority votersin local government. This failure is attributable in no small part tothe inability of many communities of color to elect members oftheir groups to local elected offices. Neither the Constitution northe Voting Rights Act creates an entitlement for any racial group tobe represented proportionally in government. However, the VotingRights Act does represent a fundamental recognition that there issomething inherently wrong with a system in which a large racialgroup is systematically outvoted and unrepresented by redistrictingschemes that disadvantage them.

8 1 That inherent wrong is borneout in the ways in which the key functions of local government most visibly, policing, public education, and utilities ( , deliveryof safe drinking water), but also public transportation, sanitation,and land use have been executed in ways that lead to inferior out-comes for minorities and the erosion of minority communities confidence in those vital public institutions. The Voting Rights Actis directed at remedying this precise problem, but sufficient re-sources have never been committed to the most of the nearly 150 years during which the Constitutionhas prohibited racial discrimination in voting, minority voters andthe federal government have borne the burden of investigating andprosecuting states and local jurisdictions engaged in discriminationon a case-by-case basis.

9 But case-by-case litigation has proven inef-fective because voting rights lawsuits are costly, time-consuming,and hard to win, offending jurisdictions are experts in evading ad-verse judgments, and the resources available to enforce votingrights protections are grossly insufficient to make meaningful pro-gress toward improving minority political Thefrustration of case-by-case litigation has been aptly likened to Ansolabehere, Nathaniel Persily & Charles Stewart III, Regional Differences inRacial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5of the Voting Rights Act, 126 HARV. L. REV. 205, 209 (2013). id. at of Michigan Journal of Law Reform[VOL.]

10 50:3 game of Whac-A-Mole in which responsive litigation is never ableto catch up with determined wrongdoers. 3 The Voting Rights Act changed the game and its outcome by shift[ing] the advantage of time and inertia from the perpetratorsof the evil to its victims. 4 The Act s preclearance solution re-quiring jurisdictions with the worst histories of discrimination toprove that changes to the voting practices would not harm minori-ties, rather than requiring minority voters to prove that they wouldbe harmed created an enforcement scheme that could effectivelycurb efforts to disenfranchise minorities in covered jurisdictionswithout a massive increase in resources. In 1982, Congressamended the Voting Rights Act to provide a more powerful affirma-tive tool to eradicate discrimination in particular, facially race-neutral vote dilution schemes by requiring plaintiffs to prove onlythat a challenged practice has discriminatory effects without show-ing that the practice was adopted with a discriminatory even under this effects test, investigating and prosecutingvote dilution claims remained resource intensive and time-consum-ing.