Law & Economics Working Papers
For two decades, the doctrinal test laid out in Thornburg v Gingles has been the centerpiece of vote dilution litigation in the United States. Gingles defined a sequential, two-part framework combining a set of rule-like preconditions to liability with a standard-like inquiry into the totality of the circumstances. Despite this elaborate framework, emerging empirical work shows that political ideology connects closely with how judges have decided vote dilution cases; Democratic appointees have proven much more likely than Republican appointees to favor liability under Section 2 of the Voting Rights Act. This work raises the question of what role the Gingles framework really plays in voting rights litigation. More basically, it raises the fundamental question of whether legal doctrine actually constrains judicial decisionmaking. Using a dataset of every Section 2 decision issued since Gingles, this Article explores these twin puzzles. It finds substantial evidence that legal rules are indeed more ideologically constraining than standards. Ideological divisions are much more pronounced in the standard-like second step of Gingles than under the more rule-like preconditions. Moreover, the Article shows that the doctrinal dynamics of vote dilution litigation have changed dramatically over the past two decades. As the representational and political implications of vote dilution claims have shifted, the Gingles factors that both judges and scholars claim are central to the liability inquiry have become far less important. Courts' sharp movement away from the centrality of the Gingles factors amounts to a largely unrecognized second transformation of voting rights litigation.
Thomas J. Miles & Adam B. Cox, "Judicial Ideology and the Transformation of Voting Rights Jurisprudence" (John M. Olin Program in Law and Economics Working Paper No. 425, 2008).