Mixed Race Studies

The Color of Change: Voting Rights in the 21st Century and the California Voting Rights Act

Harvard Latino Law Review
Volume 15 (2012)
pages 184-231

Joanna E. Cuevas Ingram
University of California, Davis

Table of Contents

• INTRODUCTION
• I. THE VOTING RIGHTS ACT OF 1965 AND THE CALIFORNIA VOTING RIGHTS ACT
• II. U.S. SUPREME COURT DECISIONS ON FEDERAL VRA STANDARDS
  • A. Heightened Burdens of Proof for Potential Plaintiffs
  • B. Post-Racial Penumbras
  • C. The Politics of Containment: Post-Racial Opposition to Voting Rights Remedies
  • D. The Full Spectrum of Voter Discrimination: “Multiracial” Identities and Multiethnic Members of Protected Voting Rights Classes
• III. FEDERAL VRA STANDARDS: CIRCUIT COURT DECISIONS ADDRESSING MULTIETHNIC/MULTILINGUAL COALITIONS
  • A. The Majority View: Recognition of Coalition Plaintiffs
  • B. The Minority View: Non-Recognition of Coalition Plaintiffs
• IV. MULTIETHNIC/MULTILINGUAL COALITIONS IN CALIFORNIA AND THE CVRA
  • A. Multiethnic/Multilingual Coalition Voting Blocs in California
  • B. Impediments and Rewards for Compliance
• V. CONCLUSION

INTRODUCTION

“Once social change begins, it cannot be reversed. You cannot uneducate the person who has learned to read. You cannot humiliate the person who feels pride. You cannot oppress the people who are not afraid anymore. We have seen the future, and the future is ours.”

— César Chávez, Address to the Commonwealth Club of California (November 9, 1984).

In the twenty-first century, we have witnessed the rise of a post-racial national political narrative, particularly as the population in the United States has become increasingly multilingual and multiethnic. This narrative has been fashionably employed by cultural critics, media personalities, elected officials, attorneys, and even courts in an attempt to check the unprecedented surge in the political power of the diverse demographic, allowing these public figures and institutions to gloss over statistically sound cases of voter disenfranchisement in an attempt to dilute or contain what are fast becoming “minority-majority” voting districts.  Under Section 2 of the federal Voting Rights Act (“VRA”) of 1965, illegal vote dilution can be found where an electoral standard, practice, or procedure results in a denial or abridgement of the right to vote on account of race or color, including those instances where it can be demonstrated that the political processes leading to nomination or election in the state or political subdivision are not equally open to participation by members of a protected class of citizens under the VRA…

…D. The Full Spectrum of Voter Discrimination: “Multiracial” Identities and Multiethnic Members of Protected Voting Rights Classes

Opponents of minority coalition claims under Section 2 seem to make another secondary, and offensive, intimation: the idea that multiracial identity itself could frustrate the purpose and practical application of the VRA.

This argument rings hollow after the Bartlett decision, however, particularly given the fact that the U.S. Census Bureau had established clear guidelines in 2000 for data interpretation based on responses that included one or more, two or more, and four or more race/ethnicity selections. Over the last decade, the Census Bureau has developed some incredibly advanced digital statistics on racial demographics by census tract The Bureau continues to maintain relatively accurate analyses of voting patterns and polls for individual groups as well as aggregate groups; data that is readily available online to any inquiring mind.

While more young Americans today do identify as multiethnic, multiracial, or mixed race, self-identification alone does not mean that individuals who so identify believe that they live in a presently post-racial society, nor does it mean that multiethnic or multicultural individuals do not experience any discriminatory treatment. Furthermore, nor does it signify that they are no longer considered members of a protected class or minority group. In fact, many individuals who identify as multiethnic and multiracial speak to the diversity of experiences each person may encounter in equal access to employment, education, housing, health care, insurance, business loans, and other social indicators of discrimination, including access to the political franchise. Increasingly, several scholars who identify as multiethnic and multiracial have worked to craft a discourse of resistance, encouraging individuals, regardless of how they identify, to embrace the complexity of their experiences and heritage by challenging the dominant social, cultural, and political structures that perpetuate white supremacy and racial segregation.

Further, opponents’ arguments that the 2000 Census would complicate litigation projections for local jurisdictions ring hollow; the standards set forth by the Office of Management and Budget (“OMB”) in March 2000 established a coherent framework for the Department of Justice (“DOJ”) in evaluating claims for the purpose of the Voting Rights Act and other remedies designed to address both systemic racial discrimination and individual discriminatory treatment. The 2000 OMB standards, although arguably problematic in dealing with social constructs such as race, have sought to provide a clear framework to respond to systemic discrimination and to accommodate the groundbreaking transformation that the 2000 and 2010 Census have taken in allowing respondents to check more than one ethnicity/race. The rules set forth by the OMB and applied by the DOJ would in fact alleviate any perceived difficulties in meeting the Gingles requirements:

Pursuant to those rules, DOJ will allocate any multiple-race response in which “White” and one of the five other basic categories were checked to the minority race that was checked. Thus, the numbers for each minority race will consist of the total of (i) the single-race responses in which only that minority race was checked; and (ii) the multiple-race responses in which only that minority race and “White” were checked. DOJ will allocate the remaining multiple-race responses—those in which two or more minority races were checked, either along with “White” or without it—to a category called “Other Multiple-Race.” If it finds that a jurisdiction’s “Other Multiple-Race” category contains a significant number of responses that reflect a particular multiple-race combination, it will allocate those responses alternatively to each of the minority races in that combination.”

When it comes to the question of Hispanic or Latino identity, the DOJ has expressed its intention to continue to treat individuals who identify as Hispanic or Latino as members of a distinct minority group for the purpose of enforcing the Voting Rights Act. If the DOJ finds that a significant number of the individuals in the jurisdiction have identified as members of this ethnic category and one or more minority racial groups, it will allocate those responses alternatively to the Hispanic or Latino category and the minority race(s) checked. For example, if the DOJ finds that a significant number of responses checked both Hispanic or Latino and Black or African-American, it will allocate the first of those responses to the Hispanic or Latino category, the second to the Black or African-American category, and so on. While other scholars have confirmed that the DOJ will also have to use the OMB allocation rules in enforcing Section 2 of the Voting Rights Act, they have also posited that the courts are not bound to follow the guidelines as established by the executive branch…

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