• Participation in Name Only: How Section 2 of the Voting Rights Act Can Present a Meaningful Challenge to Big Money in Politics

    Participation in Name Only: How Section 2 of the Voting Rights Act Can Present a Meaningful Challenge to Big Money in Politics

    By Jonathan Topaz, JD ’18[*]

    No, Jim Crow is not dead. It’s not quite dead. It now focuses its energy in different areas. Instead of literacy tests or poll taxes, the new way to deny adequate representation is to allow us to vote for any candidate we want so long as they’re rich. We have a long way to go.[1] – Clayton Harris, former President, Howard Law Student Bar Association

    I. Introduction

    If the fierce battle over money in U.S. politics between libertarians and campaign finance reform advocates is a tennis match, the Supreme Court has forced the latter to play with a wooden racket or broken strings. In the landmark case Buckley v. Valeo, the Court found that campaign expenditures to influence elections amount to First Amendment-protected political speech[2]—meaning the government must prove it has a compelling interest to justify any campaign finance restrictions.[3] Buckley’s decision has been a tremendous boon for the libertarian side, which has pummeled reformers with constitutional free speech arguments to loosen campaign finance regulations. Buckley also rejected a “political equality” justification for campaign finance restrictions, stating instead that the government has a sufficiently important interest to prevent only corruption or the appearance of corruption.[4] The Court has interpreted “corruption” as meaning “quid pro quo corruption”[5]—an incredibly narrow interpretation that seemingly condones anything beyond literal bribery. The Supreme Court has thus effectively neutered reformers looking to impose campaign finance regulations that go beyond the almost non-existent problem of quid pro quo corruption.[6]

    Consequently, until the Supreme Court overturns Buckley and rules that political equality is a legitimate governmental interest for campaign finance regulations, reformers would benefit from finding a separate governmental interest to support campaign finance reforms that is more widespread and documentable than quid pro quo corruption.[7] More and more evidence has piled up that the current libertarian system of financing elections in the U.S. overwhelmingly benefits white people, who make up a disproportionate percentage of top donors and elected officials relative to the population. In turn, the influx of money in politics has worked to decrease the political influence and participation of less affluent nonwhite communities.

    This paper argues that reformers should seize on a new governmental interest to attack campaign finance laws: ensuring nonwhite voters have the opportunity to participate meaningfully in the political process and to elect their preferred representatives. Congress has a broad statutory mandate to ensure this interest in Section 2 of the Voting Rights Act (VRA), which Congress passed to enforce the voting rights provisions of the 14th and 15th Amendments.[8] Thus, this paper presents a potentially compelling legal argument for reformers: current libertarian campaign finance laws violate Section 2 and the government’s compelling interest in ensuring that nonwhite voters have an equal ability to participate in the political process.

    First, this paper will introduce the relevant language of Section 2, the so-called Gingles factors that create the presumption for a majority-minority district, and the Senate Judiciary Committee factors that indicate potential Section 2 violations. Second, this paper will discuss existing campaign finance data to support two factual claims: A) top donors, who have a significant influence on policy, are far whiter and more conservative than average Americans; and B) money in politics adversely impacts minority representation in elected office.

    Third, this paper will present two different legal approaches for how reformers can use Section 2 to target big money in politics. One legal argument states that the current libertarian campaign finance system endangers nonwhite voters’ ability to elect the candidates of their choosing in primary elections in majority-minority districts, which are legally protected by Section 2. Several case studies show that better-financed, white-preferred candidates have won or nearly won primaries against the nonwhite majority’s preferred candidate—a strong suggestion that big money in politics infringes on majority-minority districts as a Section 2 remedy. For this first argument, reformers would bring litigation in districts for which Section 2 requires a majority-minority district, but where better-financed, white-preferred candidates have won primaries despite people of color comprising a voting majority. The other legal argument states that current libertarian campaign finance laws run afoul of Section 2 more broadly, as evidenced by their violation of three Senate Judiciary Committee Report factors. These two legal claims provide the infrastructure for future litigation arguing that libertarian campaign finance laws violate Section 2’s guarantee that nonwhite voters have the ability to participate meaningfully in the political process. Reformers here should initially target jurisdictions that are particularly receptive to racial justice claims. Fourth, this paper will argue that reformers should not just seek to uphold existing campaign finance restrictions but also seek injunctions that would require states or localities to institute some form of public financing or matching system in the event of a Section 2 violation.

    II. The Law: Section 2, Gingles, and the Senate Judiciary Report Factors

    Section 2 of the VRA states that “[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”[9] The statute then states that this provision is violated “if, based on the totality of circumstances, it is shown 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 class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”[10]

    Challenges to libertarian campaign finance laws under Section 2 would constitute vote dilution claims, not vote denial claims. A vote dilution claim is such “that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.”[11] Most vote dilution claims concern the impact on nonwhite participation of multimember districts, at-large voting schemes, and reapportionment plans;[12] this paper argues that current libertarian campaign finance laws are practices that dilute nonwhite participation and voting strength.

    Section 2 explicitly does not create a “right to have members of a protected class elected in numbers equal to their proportion in the population.”[13] But the statute does concern a fundamental representation problem: given that the United States does not have proportional representation and instead has winner-take-all districts, large nonwhite groups might lack the necessary political coalitions to elect their preferred candidates. Thus, the past several decades have seen the proliferation of court-mandated majority-minority districts, districts in which nonwhite voters make up more than 50 percent of the voting-age population.[14]

    In Thornburg v. Gingles, the Supreme Court ruled that, in a districting context, plaintiffs must establish three factors to satisfy the prima facie vote dilution claim under Section 2.[15] Plaintiffs must prove that the minority group is “sufficiently large and geographically compact” to support a district-wide majority, that the minority group is politically cohesive, and that the white majority itself votes sufficiently as a bloc to defeat the minority group’s preferred candidates on a consistent basis.[16] Once plaintiffs pass this threshold test, courts must then determine, according to the totality of the circumstances, whether there is a Section 2 violation.[17] In doing so, courts must also consider the nine factors in the Senate Report accompanying the 1982 VRA amendments.[18] Courts have broadly interpreted Gingles as compelling states to create a majority-minority district in instances where the Gingles factors are met and a court finds a Section 2 violation.[19]

    For the purposes of this paper’s second legal argument, there are three particularly salient factors listed in the 1982 Senate Report. The fourth Senate factor is “if there is a candidate slating process, whether the members of the minority group have been denied access to that process.”[20] While neither the statute nor the Senate Report explicitly defines slating, courts generally view it as “a process in which some influential non-governmental organization selects and endorses a group or ‘slate’ of candidates, rendering the election little more than a stamp of approval for the candidates selected.”[21] The fifth Senate factor is “the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process.”[22] Finally, the seventh Senate factor is “the extent to which members of the minority group have been elected to public office in the jurisdiction.”[23]

    III. The Current Legal Structure Disproportionately Helps White Donors and Candidates

    [Campaign finance] is a civil rights problem, because it is a problem of political participation. . . . Because the people who call the tunes, who are the funders, are primarily white.[24]Guy-Uriel Charles, Director, Duke Law Center on Law, Race and Politics

    It is important to establish briefly two background claims: 1) there has been a significant growth in money in politics in the past several decades; and 2) libertarian campaign finance laws are at least partially responsible for this growth. Indeed, the cost of running for Congress has increased by 555 percent since 1984.[25] Outside group spending increased from $100 million in 2000 to $980 million in 2012 in inflation-adjusted amounts,[26] while political spending from outside non-disclosing groups increased from $5 million in 2006 to more than $300 million in 2012.[27] Outside spending—virtually nonexistent before 2008—made up $1.5 billion of independent expenditures in the 2016 election cycle, up 33 percent just from 2012.[28] Buckley’s 1976 prohibition on campaign finance reforms for political equality purposes has contributed greatly to the exponential growth in money in politics in the past four decades and has time and again prevented meaningful reforms, such as statewide expenditure limits.[29] More recently, Citizens United in 2010 extended Buckley’s claim that expenditures are protected speech under the First Amendment to corporations and unions, allowing them to spend unlimited amounts of money on elections.[30] The D.C. Circuit ruled later that year that if independent expenditures do not amount to quid pro quo corruption or its appearance, then contributions to groups who make those expenditures cannot amount to quid pro quo corruption or its appearance.[31] This spawned the creation of super PACs, heavily responsible for the recent dramatic rise in outside spending. There are two main ways that the recent spike in campaign spending—enabled by the libertarian regulatory environment—impacts communities of color.

    A. Top Donors, Who Have a Significant Influence on Policy, Are Far Whiter and More Conservative Than Average Americans

    Put simply, top donors—who are pouring more money into elections than ever before—are extremely white. Ninety-three percent of donors who gave more than $5,000 in the 2012 election cycle were white, as were 94 percent of donors who gave more than $5,000 in 2014.[32] Black people, who make up roughly 13 percent of the population, constituted just three percent of top donors in 2012 and two percent in 2014.[33] Campaign finance data from many state[34] and local[35] elections have found the same thing: top donors are heavily white. Thus, whites make up a disproportionate percentage of the so-called economic elites who dominate the donor class. These top donors have increased their influence considerably in recent years—nearly 42 percent of total campaign contributions in 2012 came from the top .01 percent of wealthiest donors, compared to 12.8 percent in 1990.[36]

    Additionally, several studies show that these top donors are more conservative than average Americans on a host of issues—educational equality, taxation, regulation, welfare, health care, the minimum wage, college affordability, racial justice, and whether government policies favor the wealthy.[37] Another study also shows that, while Democratic donors are fairly representative of average Democratic donors, Republican and independent donors are far more conservative than Republican and independent voters, respectively.[38] And while there is no clear data showing causation, there are strong indications that top donors wield considerable influence on policymakers to pursue these preferred policies. States that have stricter campaign finance laws spend a larger percentage of their annual budgets on public welfare spending and cash assistance programs, even when accounting for differences in ideology and legislature partisanship.[39] Martin Gilens and Benjamin Page have famously found that there is essentially no correlation between the policy preferences of average citizens and the likelihood that those policy preferences will be implemented, while economic elites “have a quite substantial, highly significant, independent impact on policy.”[40] Therefore, the data indicate that top donors, heavily white and conservative, exercise a more significant effect on policy than average voters.

    Importantly, several studies have found that nonwhite groups participate less in politics because they have fewer resources, not because of lack of interest or “voluntary abstention.”[41] These studies preemptively rebut those who would argue that communities of color have an equal ability to influence elections, but decline to do so. The disproportionately low contribution total in nonwhite communities is a problem of access, not voter apathy.

    B. Money in Politics Negatively Affects Minority Representation in Elected Office

    People of color are underrepresented in elected office. Blacks comprise 13.3 percent of the U.S. population, but make up 8.8 percent of the membership of the current Congress and 8.6 percent of state legislature membership.[42] Hispanics comprise 17.6 percent of the population, but make up 7 percent of Congress and 4.8 percent of state legislators.[43] Whites make up 90 percent of elected leaders despite comprising less than 62 percent of the population.[44]

    Candidates of color raise far less money than do their white counterparts.[45] For example, candidates of color in 2006 state legislature races raised 47 percent less than white candidates, even when controlling for all other factors.[46] Similarly, black candidates raised less than one percent of the total money raised by congressional candidates in 2000, despite making up about seven percent of Congress.[47] Data indicate that economic resources are a statistically significant “important factor” in determining how many black candidates will run for office,[48] and nearly two-thirds of both whites and blacks believe that fewer candidates of color run successfully for office because they lack the financial networks necessary to raise enough money for a run.[49] When big money is necessary to run for office, personal wealth (and access to personal wealth through social networks) becomes an important factor. Indeed, the median net worth for a member of Congress in 2013 was $1.03 million, 18 times that of the average American household.[50] Similarly, elected officials nationwide are vastly more likely to be millionaires and much less likely to have been raised in a working-class family than average Americans.[51] Relatedly, the institution of public financing or matching systems in Connecticut, Arizona, and New York City has coincided with greater candidate diversity and major increases in nonwhite state and local legislators.[52] States with stricter campaign finance laws also elect more legislators from poorer backgrounds and pursue more redistributivist policies.[53]

    Part III thus indicates that money currently plays a bigger role in elections than ever in modern American history, that the current libertarian campaign finance legal and regulatory environment is at least partially responsible for the importance of money in politics, and that people of color are disproportionately unrepresented among the major donors and elected officials in the modern political climate. Part III also indicates that candidates of color are unable to raise as much money as their white counterparts when they do run, and that people of color donate less to political campaigns because of fewer resources, not lack of interest. These facts all show that the current libertarian campaign finance legal system broadly prevents nonwhite communities from electing the candidates of their choice and from equally influencing the political process. With the findings in Part III as crucial evidence, this paper now moves to its two core Section 2 legal arguments designed to challenge libertarian campaign finance laws.

    IV. LEGAL ARGUMENT ONE: Campaign Finance Laws Subvert Nonwhite Political Influence in Majority-Minority Districts

    Part II established that courts have widely interpreted Gingles as stating that it is often a legally necessary remedy to create a majority-minority district in the event of a Section 2 violation.[54] In Part III, this paper noted that candidates of color, underrepresented in elected office, raise less money than white candidates[55]—an electorally significant finding given that better-financed candidates won at least 91 percent of congressional races in both 2012[56] and 2008.[57] Therefore, it is likely that current libertarian campaign finance laws can violate Section 2 by undermining the efficacy of majority-minority districts designed to ensure that communities of color can elect their preferred representatives.

    Given the significant historical and current overlap between race and party, majority-minority districts tend to skew heavily Democratic and do not often have competitive general elections.[58] As such, it is better to analyze congressional primaries in majority-minority districts. Primaries also provide an insightful look into campaign finance because candidates must raise a significant amount of money to be considered credible. (As this paper will explore later, there is natural overlap between the slating process and the wealth primary in the early campaign stages.)

    The ideal case study is as follows: a better-financed, white-preferred candidate that defeats (or narrowly loses to) the nonwhite-preferred candidate in a primary in a majority-minority district. Recent history provides some examples.

    Texas’ 29th District, which today is 75 percent Hispanic, has not elected a Hispanic member since the majority-minority district was created in 1991.[59] In 1992, Gene Green, who is white, defeated Hispanic Ben Reyes in the Democratic primary runoff by 180 votes.[60] Green received $180,708 from the National Rifle Association during the primary campaign, which the Washington Post would later say was a potentially decisive factor in Green’s narrow victory.[61] Former Houston Councilman John Castillo said of the race: “Green had all of the NRA money. The NRA spent more money on Gene Green than on any other incumbent or non incumbent Democrat running for Congress. Secondly, in spite of the fact that Ben carried all of labor’s water in the legislature, they turned on him. And went for Green simply because he is Anglo. . . . Ben [was] running without as much money.”[62] Green still represents the 29th District today.

    In Alabama’s 7th Congressional District runoff in 2002, the moderate Artur Davis defeated Earl Hilliard in a contentious primary between two black men. The runoff was, in many ways, centrally about race. Hilliard was a favorite of the black establishment and campaigned with civil rights leaders such as Al Sharpton.[63] Hilliard, who was endorsed by the Congressional Black Caucus, publicly questioned whether Davis was “black enough” to represent the district.[64] Davis, meanwhile, raised a significant amount of money from out-of-district white Jewish donors who criticized Hilliard’s stance on Israel;[65] Davis received more than $133,000 from private fundraisers in New York City alone.[66] Indeed, Davis outraised Hilliard, which helped him reduce the incumbent’s early lead.[67] The premier local organization of black Democrats complained about Davis’s out-of-district contributions from pro-Israel groups[68] and, after the race, Hilliard also commented: “My opponent had a massive amount of money. I don’t know what that means for the future for other persons who are similarly situated.”[69] Davis, who became the only CBC member to vote against the Affordable Care Act, famously later joined the Republican Party.[70]

    Finally, David Yassky—a white Democrat who moved to New York’s then-majority-black 11th District to run for the open seat[71]—only narrowly lost to black candidate Yvette Clarke in the 2006 primary.[72] Black leaders criticized Yassky for being an opportunist and trying to win a majority-black district.[73] Just months before the primary, Yassky had raised more money to that point than all his primary challengers—all black—combined.[74]

    These case studies all underscore a similar point: the unregulated way that money has flooded into politics greatly impedes the ability for communities of color to elect the candidates of their choosing. These examples are particularly potent because they show how money in politics can distort two core voting rights principles. First, they demonstrate that citizens of color do not have an “equally effective voice” in electing their representatives—as the Supreme Court guaranteed in Reynolds v. Sims[75]given that the preferences of a smaller, well-financed group of people can trump the preferences of the nonwhite majority. The fact that Davis, for example, received big money from individuals and groups outside his district further underscores this point. The free flow of unregulated big money allows top white donors around the U.S. to pool money with an individual district’s wealthy white minority to outraise a nonwhite group’s preferred candidate. Second, these cases—while somewhat rare—demonstrate how money in politics imperils one of the guarantees and hallmarks of Section 2: majority-minority districts. If money in politics prevents a nonwhite majority from electing its preferred candidate, the state in question has not executed a proper remedy for a Section 2 violation under Gingles.

    To be sure, there are many complications with a legal challenge based on the majority-minority district theory. For one, it may be difficult to prove decisively who the “minority-preferred candidate” is—as this paper will show later, Section 2 does not consider the race of the candidate to be a defining factor in this equation.[76] Additionally, plaintiffs likely must show that the white-preferred candidate’s fundraising advantage was a causal factor in his victory. Still, if litigation can successfully prove that a white-preferred candidate’s fundraising advantage contributed significantly to a victory in a majority-minority district, that would create a compelling and wide-ranging claim that the current libertarian campaign finance system imperils Section 2’s core remedy to ensure its promise of effective representation.

    V. LEGAL ARGUMENT TWO: The Libertarian Campaign Finance Legal System Dilutes Nonwhite Political Influence, as Evidenced by Three Senate Factors

    A political process based on private money gives wealthier white communities disproportionately large influence in determining all candidates, and, like the lines drawn for some electoral districts, it effectively excludes poorer minorities from meaningful participation in the selection of their representatives.” – Spencer Overton[77]

    Part IV worked within the Gingles framework to argue that money in politics neutralizes the power of majority-minority districts to ensure nonwhite groups can elect the candidates of their choice. That argument states that money in politics unlawfully nullifies the mandated remedy when a Section 2 violation has already been established using the Gingles test.

    This section instead focuses on a slightly different framework. Districting cases, after all, are factually different than campaign finance questions—Gingles’ stringent three-part threshold test need not necessarily apply to Section 2 challenges to the libertarian campaign finance system. Generally, Gingles states that Section 2 guarantees remedies for unequal access to the political process: “The essence of a §2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.”[78] Thus, some lawyers[79] have begun exploring Section 2 money-in-politics challenges that do not abide by the formulaic Gingles test, whose factors make more sense for a districting fact pattern. The argument in this section focuses on Section 2’s broader promise of a political process that ensures equal opportunity for nonwhite groups to participate and elect preferred representatives. This section will now look at three of the 1982 Senate Report factors to demonstrate how unregulated money in politics violates these three factors such that it could constitute a Section 2 violation.

    A. Slating (Factor Four)

    First, the so-called wealth primary creates an informal slating process that disadvantages minority-preferred candidates and effectively disallows members of a nonwhite group from participating in the candidate selection process. Ellen Katz has classified four different types of slating that courts have considered in Section 2 challenges since the 1982 amendments; the wealth primary qualifies as what Katz calls “private slating” or informal slating.[80] Katz defines this type of slating as “conduct by private organizations [denying] minority candidates access to slating processes.”[81] The wealth primary is not an example of “official slating,” which would constitute formal barriers to slating processes for minority-preferred candidates, or “unofficial party slating,” implicating decisions made by party officials.[82] Instead, because minority-preferred candidates either do not have contact with many top donors or because they do not support the policy positions of those top donors,[83] these candidates are often informally but effectively shut out from the slating process that “[controls] effective access . . . to the ballot.”[84]

    This principle perhaps was best summarized recently in Missouri State Conference of the NAACP v. Ferguson-Florissant School District, a case involving the school district where Michael Brown lived.[85] The court found that there were two powerful slating organizations that endorsed more white candidates than black candidates, which was predictive of electoral success.[86] As such, the court stated that “African Americans have much less success than white candidates in receiving the established slating groups’ endorsements, and in that sense, they are largely denied meaningful access to those slating groups.”[87] In other words, while nonwhite-preferred candidates were not formally denied access to the slating process, they were effectively denied meaningful access such that they had less ability to launch a successful campaign. This case provides a perfectly analogous argument for how the wealth primary excludes nonwhite communities from the slating process. In Part III.B, this paper showed that nonwhite candidates struggle to raise as much money as white candidates, regardless of merit. And given the modern reality of the libertarian campaign finance environment, raising money is increasingly important—successful House candidates in 2012 raised on average $1.6 million, 344 times more than what was required in 1986.[88] Thus, if nonwhite candidates are disproportionately denied access to top donors, and those donors are disproportionately comprised of white people (whose interests largely diverge from those of non-white voters[89]), unregulated campaign finance mechanisms act as a significant barrier toward the election of nonwhite-preferred candidates and the political influence of nonwhite voters.

    Courts have found other informal slating violations. In Citizens for a Better Gretna v. City of Gretna, the court found a discriminatory slating process when black candidates were not invited to a meeting with members of a nonpartisan candidate recruiting group.[90] Another case in Texas objected to a slating practice in which influential advocacy group made significant donations disproportionately to white candidates.[91] The latter case in particular, Perez, explicitly connects slating, endorsements, and contributions—after all, what is a campaign contribution other than a way to support a candidate that an individual or group has endorsed?[92] Given the evidence documented in Part III, it is clear that nonwhite groups do not have meaningful access to candidate slating processes, in violation of factor four.

    B. Effects of Discrimination (Factor Five)

    Second, the legacy of discrimination and segregation has resulted in economic disparities that prevent nonwhite voters from participating equally in the political process, both through campaign contributions and other activities. Senate Report factor five mostly concerns the phenomenon addressed in Part III.A—that top donors, who wield significant authority in candidate selection and policy influence, are disproportionately white. Courts across the U.S.—in Virginia,[93] Tennessee,[94] Georgia,[95] Missouri,[96] Texas,[97] and elsewhere—have found that legacies of housing and economic discrimination have prevented nonwhite voters from amassing the wealth necessary to contribute meaningfully to candidates. These courts have often noted that nonwhite-preferred candidates had received far fewer campaign contributions, in large part because the nonwhite communities did not have as much money to donate.[98] In this way, courts often draw direct connections between economic inequality and political participation, provided that plaintiffs can point to some evidence of historical or current discrimination.[99]

    Senate Report factor five, though, also implicates the problem in Part III.B.—that nonwhite candidates are underrepresented in elected office in large part because they raise less money than white candidates. In Chisom v. Roemer, the district court found a Section 2 violation for voter dilution in Louisiana judicial elections, stating: “The relatively lower economic status of local black residents further affects accessibility to better education and such practicalities as campaign funding. . . .black candidates have considerable difficulty raising campaign funds and [generally], the better funded candidates win.”[100] Courts in Tennessee[101] and Texas[102] have also found that historical and continuing economic and employment discrimination prevented nonwhite candidates from being able to run successful political campaigns. In one particularly intriguing opinion, a Virginia court found that the long history of segregation along social lines in Nottoway County—at church, in Little League, in social clubs—still existed such that blacks and whites had little contact with one another.[103] The court found that this “societal separation” impaired black candidates’ ability to earn white support.[104] Similarly, a South Carolina court found that housing, religious, business, and social segregation “makes it especially difficult for African-American candidates seeking county-wide office to . . . communicate with the predominantly white electorate from whom they must obtain substantial support.”[105]

    It is this last point in particular that draws an important link between slating (factor four) and effects of discrimination (factor five). Neal, Charleston County, and Terrell in particular note how voters are segregated in Little League, churches, clubs, housing, and civic organizations. This sort of “social segregation” is an offshoot of economic segregation—potential nonwhite candidates are often not included in the informal social circles of top donors from whom they must earn support to raise a sufficient amount of money.

    Once plaintiffs establish that past discrimination is responsible for socioeconomic disparities along racial lines, the burden shifts to defendants to prove that depressed nonwhite political participation is based on voter apathy or other reasons not related to those disparities.[106] Plaintiffs need not show a “causal connection between depressed socioeconomic status and decreased opportunity to effectively participate in the political process.”[107] The Ninth Circuit has also found that “structural barriers” to electoral participation are not required for plaintiffs to prove a factor five violation.[108] Accordingly, there is a significant amount of case law stating that economic disparities related to discrimination preclude nonwhite groups from participating meaningfully in the electoral process. This argument is directly transferrable to a Section 2 challenge based on campaign finance regulations.

    C. Election to Public Office (Factor Seven)

    Third, as seen in Part III.B, the disproportionately low rate at which nonwhite candidates are elected to office is a strong indicator that nonwhite groups do not have a meaningful or equal opportunity to elect the candidates of their choosing. Factor seven does have some problematic elements that perhaps make it a less optimal fit than factors four and five. For one, Section 2 itself states explicitly that nonwhite groups are not entitled to any specific proportion of elected officials based on population.[109] Several courts have cited this provision to reject proportionality arguments, which can reduce the potency of a factor seven claim.[110] Perhaps more importantly, Section 2 only refers to nonwhite-preferred candidates, while factor seven refers to nonwhite candidates—there is an important distinction in those two phrases (i.e. Artur Davis in Part IV) because the failure to elect nonwhite candidates does not necessarily constitute a Section 2 violation. Libertarians can also argue that white candidates are elected at higher rates due to the incumbency advantage, not race.[111]

    But in a limited way, factor seven can be helpful in addressing a documented representation problem: minority and minority-preferred candidates are elected to office at lower rates than demographics would indicate. Courts have used factor seven in particularly egregious underrepresentation cases—for example, when no minorities had ever been elected to county-wide office[112] or when a sizeable minority group had been unable to get one person elected onto the City Commission for more than 70 years.[113] Also, while Section 2 does not protect strict proportionality, several courts have found a factor seven violation by appealing to minority representation far lower than the jurisdiction’s nonwhite population.[114] Some courts also have been sympathetic to the argument that fewer nonwhite candidates run for office because they rightly perceive that financial barriers would likely preclude them from winning.[115]

    Ultimately, this last point is particularly crucial for the campaign finance context. To win on factor seven grounds, reformers will have to argue—marshaling the case law in this section and the data in Part III.B—that nonwhite candidates both run for office and win at significantly lower rates because they have less access to capital. This argument, of course, links up nicely with factors four and five, which concern nonwhite groups’ and their preferred candidates’ inability to mount successful campaigns in the current campaign finance environment.

    For these Part IV cases, reformers can be more adventurous with jurisdiction. Part IV.C noted some states and districts had particularly egregious underrepresentation of nonwhite individuals; it would be beneficial for reformers to target some of those places where nonwhite candidates are excluded from informal slating processes or where white candidates dramatically outraise nonwhite candidates. Given that these legal arguments are new and experimental, it would be beneficial to bring cases in jurisdictions that are friendly to racial justice and/or campaign finance claims. California, for example, has its own statewide VRA that protects nonwhite groups’ ability “to elect the candidate of its choice or its ability to influence the outcome of an election” and lists many of the 1982 Senate Report factors, including factor five.[116] As such, California courts might be more receptive to adopting “meaningful electoral participation for nonwhite groups” as a legitimate governmental interest to restrict First Amendment-protected speech, either according to the state or federal VRA.

    VI. Remedies

    There are two main options with regard to potential remedies. The easier but less satisfying approach is litigation aimed at existing statutes—either striking down statutory increases in contribution limits or defending current campaign finance restrictions. For example, lawyers at Free Speech for People recently filed an amicus brief with the Ninth Circuit in Lair v. Motl, a case on appeal after a district court in Montana ruled that the state’s campaign finance regulations violated the First Amendment.[117] The brief, in part, stated that the regulations served a legitimate government interest in ensuring that the Native American population could participate meaningfully in the electoral process in Montana.[118]

    The second, more adventurous approach would be to seek injunctive relief for courts to mandate that states institute some form of public financing or matching system. Plaintiffs would need to prove that public financing systems improve opportunities for meaningful nonwhite political participation. While the merits of public financing are beyond the scope of this paper, data show that public financing can diversify the donor pool,[119] increase the number of nonwhite candidates and elected officials,[120] increase the financial significance of small donors,[121] and prompt legislatures to pass more redistributivist policies preferred by nonwhite communities.[122]

    Courts, of course, are reluctant about creating policy on the bench. That said, the Supreme Court has ruled that federal courts can grant prospective injunctive relief against a state even if it requires the state to spend money in the future.[123] Indeed, the Supreme Court has on several occasions compelled state legislatures to institute civil rights policies that would necessitate the state spending money. In Graham v. Richardson,[124] the Court mandated that two states provide welfare benefits for resident aliens. The Supreme Court also famously stated in the mid-1970s that federal courts could compel states to institute forced integration policies, within certain limitations.[125]

    Reformers would do well to look to court-enforced busing as a model while pursuing their own affirmative remedies like court-enforced public financing systems. In both busing cases and the current campaign finance environment, there is formal legal neutrality—states did not institute formal school segregationist policies in the 1970s, just as libertarians have not instituted formal barriers to nonwhite candidates or nonwhite donors participating in the political process. Yet courts forced states to appropriate funds to implement busing programs because there was blatant segregation and inequality despite formal legal neutrality. It is incumbent on reformers to make a similar argument that, despite the absence of per se discriminatory campaign finance laws, the current libertarian legal structure has significant discriminatory effects.

    VII. Conclusion

    Section 2 will not change the state of money in politics tomorrow. The Roberts Court has sided decisively with the libertarians on campaign finance issues, and the First Amendment remains as significant an impediment to reform as it did immediately following Buckley in 1976. That said, it is possible that libertarians have overplayed their hand. The spike in income inequality in the U.S. has coincided with a corresponding spike in big money in politics, which increasingly underscores significant racial disparities in political contributions and ability to influence the political process. As presented particularly in Part III, there are very stark and real racial inequalities among political contributors and elected officials. Section 2 provides several enticing legal arguments—that go far beyond the narrow governmental interest of corruption—to attack a libertarian campaign finance system that disallows nonwhite voters from participating meaningfully in the political process and electing their preferred representatives.

     


    [*] J.D. Candidate, Harvard Law School; B.A., Brown University.

    [1] Clayton Harris, Campaign Finance as a Civil Rights Issue, 43 How. L.J. 7, 9 (1999).

    [2] 424 U.S. 1, 52 (1976).

    [3] See Citizens United v. FEC, 558 U.S. 310, 340 (2010) (“Laws that burden political speech are subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.”) (internal quotations omitted).

    [4] Buckley, 424 U.S. at 48–49 (“[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”).

    [5] See, e.g., McCutcheon v. FEC, 134 S. Ct. 1434, 1441 (2014) (“Any regulation must instead target what the Court has called ‘quid pro quo’ corruption or its appearance. That Latin phrase captures the notion of a direct exchange of an official act for money. The hallmark of corruption is the financial quid pro quo: dollars for political favors.”) (internal citations omitted); Citizens United, 558 U.S. at 359.

    [6] Lawrence Lessig, a Harvard Law professor, former presidential candidate, and campaign finance expert, has stated that “Buckley created an incredibly difficult regulatory environment” in which it would be difficult for any regulations to pass legal muster. Interview with Lawrence Lessig, Professor, Harvard Law Sch., in Cambridge, Mass. (Mar. 31, 2016).

    [7] The Supreme Court has not found a legitimate governmental interest to justify campaign finance restrictions beyond “preventing corruption or the appearance of corruption.” McCutcheon, 134 S. Ct. at 1450. Still, the Court has not ruled out the possibility that there might be other potential interests that could justify campaign finance restrictions. See id.

    [8] See Shaw v. Hunt, 861 F. Supp. 408, 438 (E.D.N.C. 1994) (“[T]he Voting Rights Act is a direct exercise of Congress’ broad constitutional power to enforce the provisions of the Fourteenth and Fifteenth Amendments”); see also South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966).

    [9] 52 U.S.C. § 10301(a) (2014).

    [10] 52 U.S.C. § 10301(b) (2014).

    [11] Thornburg v. Gingles, 478 U.S. 30, 47 (1986).

    [12] See generally, e.g., Cofield v. City of LaGrange, 969 F. Supp. 749 (N.D. Ga. 1997) (at-large voting); McDaniels v. Mehfoud, 702 F. Supp. 588 (E.D. Va. 1988) (reapportionment plan); Neal v. Coleburn, 689 F. Supp. 1426 (E.D. Va. 1988) (single-member districts).

    [13] 52 U.S.C. § 10301(b) (2014).

    [14] See McNeil v. Springfield Park Dist., 851 F.2d 937, 945 (7th Cir. 1988).

    [15] See 478 U.S. at 50–51.

    [16] Id.

    [17] See id. at 43. See also Sensley v. Albritton, 385 F.3d 591, 595 (5th Cir. 2004) (outlining the Gingles “two-part framework” of assessing the Supreme Court’s first three factors as a threshold test and then conducting a totality-of-the-circumstances analysis using the Senate factors).

    [18] See Gingles, 478 U.S. at 43–45.

    [19] Claudine Gay, Pub. Pol. Inst. of Cal., The Effect of Minority Districts and Minority Representation on Political Participation in California 8 (2001), http://www.ppic.org/content/pubs/report/R_601CGR.pdf [https://perma.cc/U9QR-JLGP].

    [20] S. Rep. No. 97-417 (1982).

    [21] Westwego Citizens for Better Gov’t v. Westwego, 946 F.2d 1109, 1116 n.5 (5th Cir. 1991).

    [22] S. Rep. No. 97-417.

    [23] Id.

    [24] freespeechpeople, Money in Politics as a Civil Rights Issue: What Can We Learn from North Carolina, YouTube (Jan. 10, 2016), https://www.youtube.com/watch?v=wi98X7PmCjQ [https://perma.cc/B3BW-357V].

    [25] Michael Scherer, Pratheek Rebala & Chris Wilson, The Incredible Rise in Campaign Spending, Time (Oct. 23, 2014), http://time.com/3534117/the-incredible-rise-in-campaign-spending/ [https://perma.cc/3AMV-HE2E].

    [26] Thomas B. Edsall, Can Anything Be Done About All the Money in Politics?, N.Y. Times (Sept. 16, 2015), http://www.nytimes.com/2015/09/16/opinion/can-anything-be-done-about-all-the-money-in-politics.html [https://perma.cc/DRX2-X5FA].

    [27] Outside Spending by Nondisclosing Groups, Cycle to Date, Excluding Party Committees, OpenSecrets, https://www.opensecrets.org/outsidespending/disclosure.php [https://perma.cc/Y7HN-Y7NU].

    [28] Outside Spending by Cycle, Excluding Party Committees, OpenSecrets, https://www.opensecrets.org/outsidespending/fes_summ.php [https://perma.cc/FA3H-7CSG].

    [29] See Randall v. Sorrell, 548 U.S. 230, 246 (2006) (finding Vermont’s expenditure limits violated the First Amendment).

    [30] See generally Citizens United v. FEC, 558 U.S. 310 (2010).

    [31] See generally Speechnow v. FEC, 599 F.3d 686 (D.C. Cir. 2010).

    [32] Sean McElwee et al., Demos, Whose Voice, Whose Choice? The Distorting Influence of the Political Donor Class in Our Big-Money Elections 10 (2016), http://www.demos.org/sites/default/files/publications/Whose%20Voice%20Whose%20Choice_1.pdf [https://perma.cc/W3CY-8G6B].

    [33] Id.

    [34] Ninety-five percent of North Carolina’s largest donors for 2014 congressional races were white, while less than one percent were black. Alex Kotch, Inst. for S. Studies, The Face of Election Money in North Carolina: The Disconnect Between Changing Demographics and the Political Donor Class in a Battleground State 1–2 (2015), http://www.southernstudies.org/sites/default/files/ISS_Face-of-NC-Donors_2.pdf [https://perma.cc/FU8F-B38T]. In 2008, nearly 82 percent of contributions to New York State Assembly and Senate candidates came from zip codes that are predominantly white, where less than 70 percent of the state’s population lives. Pub. Pol’y & Educ. Fund, The Color of Money in New York: Contributions by Race, Ethnicity and Wealth 2006-2008 4–5 (2009), http://ppefny.org/wp-content/uploads/2009/11/07192009RJColorofMoney.pdf [https://perma.cc/EZ5P-GBH3].

    [35] In Chicago, whites make up 39 percent of the total population but were responsible for 88 percent of donations of more than $1,000 in the city’s 2015 mayoral race. Sean McElwee, Demos, How Chicago’s White Donor Class Distorts City Policy 1 (2016), http://www.demos.org/sites/default/files/publications/ChicagoPublicFinancing%20(Sean)_6.pdf [https://perma.cc/MT9D-WBB2]. Top donors to Miami’s 2016 mayoral and local elections were also disproportionately white and male. See Sean McElwee, Demos, Miami-Dade’s White Donor Class: How Big Donors Distort Democracy 4–5 (2016), http://www.demos.org/sites/default/files/publications/Miami-Dade%20White%20Donor%20Class_short%20acknowledgment.pdf [https://perma.cc/G36X-QHTT].

    [36] CrowdPAC, How Much Do the 1% of the 1% Control Politics? (Apr. 21, 2015), https://www.crowdpac.com/blog/the-1-percent-of-the-1-percent [https://perma.cc/7HL3-L26F].

    [37] See Benjamin I. Page, Larry M. Bartels & Jason Seawright, Democracy and the Policy Preferences of Wealthy Americans, 11 Persps. on Pol. 51, 55–64 (Mar. 2013), http://faculty.wcas.northwestern.edu/~jnd260/cab/CAB2012%20-%20Page1.pdf [https://perma.cc/4DDS-MEF2]; Adam Lioz, Demos, Stacked Deck: How the Racial Bias in Our Big Money Political System Undermines Our Democracy and Our Economy 15–18 (2014), http://www.demos.org/sites/default/files/publications/StackedDeck2_1.pdf [https://perma.cc/FB5Q-3K8T]; July 2013 Washington Post-ABC News Poll: Obama, GOP, Immigration and Health Care, Wash. Post (July 24, 2013), https://www.washingtonpost.com/politics/polling/july-2013-washington-postabc-news-poll/2013/07/24/0dceb4ba-f387-11e2-81fa-8e83b3864c36_page.html [https://perma.cc/D7CG-FCG2].

    [38] Sean McElwee, Demos, Whose Voice, Whose Choice? The Disturbing Influence of the Political Donor Class in Our Big-Money Elections 43 (2016), http://www.demos.org/sites/default/files/publications/Whose%20Voice%20Whose%20Choice_2.pdf [https://perma.cc/3XY6-T753].

    [39] Patrick Flavin, Campaign Finance Laws, Policy Outcomes, and Political Equality in the American States, 68 Pol. Res. Q., 77, 81 (2014), https://www.followthemoney.org/assets/Uploads/Flavin-2015-PRQ.pdf [https://perma.cc/EVR6-PBN4].

    [40] Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 Persps. on Pol. 564, 572–73 (2014), https://www.cambridge.org/core/services/aop-cambridge-core/content/view/62327F513959D0A304D4893B382B992B/S1537592714001595a.pdf/div-class-title-testing-theories-of-american-politics-elites-interest-groups-and-average-citizens-div.pdf [https://perma.cc/5MM8-W8N5].

    [41] Sidney Verba, Kay Lehman Schlozman, Henry Brady & Norman H. Nie, Ethnicity and Political Resources: Participation in the United States, 23 Brit. J. Pol. Sci. 453, 467–69; 494 (1993). See also Verba et al., Voice and Equality: Civic Voluntarism in American Politics 235 (1995) (“When it comes to giving time, minority activists are not less active than their [white] counterparts. . . . .The situation is entirely different with respect to money.”).

    [42] Jennifer E. Manning, Cong. Research Serv., R43869, Membership of the 114th Congress: A Profile 7 (2016), https://www.fas.org/sgp/crs/misc/R43869.pdf [https://perma.cc/44FK-X7RD]; Quick Facts, United States Census Bureau (July 1, 2016), https://www.census.gov/quickfacts/table/PST045215 [https://perma.cc/85UL-B3QM]; Legislators’ Race and Ethnicity 2015, Nat’l Conference of State Legislatures, http://www.ncsl.org/Portals/1/Documents/About_State_Legislatures/Raceethnicity_Rev1.pdf [https://perma.cc/YPQ4-V5EF] (last updated Apr. 7, 2016).

    [43] See supra note 42 and accompanying text.

    [44] Adam Lioz, Demos, Stacked Deck: How the Racial Bias in Our Big Money Political System Undermines Our Democracy and Our Economy 1 (2014), http://www.demos.org/sites/default/files/publications/StackedDeck2_1.pdf [https://perma.cc/FB5Q-3K8T].

    [45] Jason P. Conti, The Forgotten Few: Campaign Finance Reform and its Impact on Minority and Female Candidates, 22 B.C. Third World L.J. 99, 109 (2002) (citing Jamin Raskin & John Bonifaz, Equal Protection and the Wealth Primary, 11 Yale L. & Pol’y Rev. 273, 279 n.26 (1993) (“[W]hen compared across districts and within districts, minority candidates, particularly challengers, are likely to raise much less money than white candidates and have less electoral success because of it.”).

    [46] Laura Merrifield Albright, Am. Pol. Sci. Ass’n, Not Simply Black and White: The Relationship between Race/Ethnicity and Campaign Finance in State Legislative Elections 16-17 (2014).

    [47] Robert Moore, Black Candidates See Little of the Millions Their Parties Raise, Ctr. For Pub. Integrity (Sept. 15, 2000, 7:23 PM), https://www.publicintegrity.org/2000/09/15/3269/black-candidates-see-little-millions-their-parties-raise [https://perma.cc/U2J4-F8W2]. It is worth noting that black candidates often represent safer districts, in large part because many represent majority-black districts. Given that political parties and donors in general prioritize competitive races, part of the reason that black incumbents raise less money is likely because they have disproportionately large margins of victory compared to their white counterparts.

    [48] Paru Shah, It Takes a Black Candidate: A Supply-Side Theory of Minority Representation, 67 Pol. Res. Q. 266, 272 (2014).

    [49] See generally Lioz, supra note 44.

    [50] Alan Rappeport, Making it Rain: Members of Congress Are Mostly Millionaires, N.Y. Times, FirstDraft (Jan. 12, 2015, 5:54 PM), http://www.nytimes.com/politics/first-draft/2015/01/12/making-it-rain-members-of-congress-are-mostly-millionaires/ [https://perma.cc/RB8K-VXXF].

    [51] Nicholas Carnes, White-Collar Government: The Hidden Role of Class in Economic Policy Making 4–6, 12 (2013).

    [52] The number of Hispanic Connecticut state legislators increased by 33 percent in 2012, reaching its highest level in state history. J. Mijin Cha & Miles Rapoport, Demos, Fresh Start: The Impact of Public Campaign Financing in Connecticut 13 (2013), http://www.demos.org/sites/default/files/publications/FreshStart_PublicFinancingCT_0.pdf [https://perma.cc/6KED-SVB7]. Hispanic and Native American candidates in Arizona nearly tripled after two election cycles of implementation. Steven M. Levin, Keeping It Clean: Public Financing in American Elections, 95 Nat’l Civic Rev. 7 (2006). New York City in 2009 had a majority of nonwhite city councilmembers for the first time in its history. Angela Migally & Susan Liss, Small Donor Matching Funds: The NYC Election Experience, Brennan Ctr. for Justice 21 (2010), http://www.nonprofitvote.org/documents/2011/03/levin-keeping-it-clean.pdf [https://perma.cc/944Y-KL96].

    [53] Patrick Flavin, Campaign Finance Laws, Policy Outcomes, and Political Equality in the American States, 68 Pol. R. Q., 77, 81–84 (2015), https://www.followthemoney.org/assets/Uploads/Flavin-2015-PRQ.pdf [https://perma.cc/EVR6-PBN4]

    [54] See supra note 19 and accompanying text. See also Bartlett v. Strickland, 556 U.S. 1, 13 (2009) (citing Voinovich v. Quilter, 507 U.S. 146, 154 (1993) (“In majority-minority districts, a minority group composes a numerical, working majority of the voting-age population. Under present doctrine, § 2 can require the creation of these districts.”) ).

    [55] See supra notes 42–49 and accompanying text.

    [56] Wesley Lowery, 91% of the Time the Better-Financed Candidate Wins. Don’t Act Surprised, Wash. Post: The Fix (Apr. 4, 2014), https://www.washingtonpost.com/news/the-fix/wp/2014/04/04/think-money-doesnt-matter-in-elections-this-chart-says-youre-wrong/ [https://perma.cc/6NWX-AUB7].

    [57] OpenSecrets, Money Wins Presidency and 9 of 10 Congressional Races in Priciest U.S. Election Ever (Nov. 5, 2008), http://www.opensecrets.org/news/2008/11/money-wins-white-house-and/ [https://perma.cc/5XFV-AL8G].

    [58] See, e.g., Nate Silver, Hispanic-Majority Districts: Boon or Burden for Democrats?, FiveThirtyEight (Dec. 23, 2010, 11:26 PM), http://fivethirtyeight.com/features/hispanic-majority-districts-boon-or-burden-for-democrats/ [https://perma.cc/YWY9-BKXN] (“In general . . . majority-black districts create an inefficient distribution of Democratic votes and cost them seats in Congress.”).

    [59] Theodore Schleifer, Houston Most Hispanic Part of Country Without Hispanic in Congress, Hous. Chron. (Sept. 6, 2014), http://www.houstonchronicle.com/news/politics/texas/article/Houston-most-Hispanic-part-of-country-without-5738987.php [https://perma.cc/XX9B-ZGMY].

    [60] Id.

    [61] Dwight Morris, The NRA: Political Behemoth or Overblown Player?, Wash. Post (July 6, 1998), http://www.washingtonpost.com/wp-srv/politics/campaigns/money/archive/money070698.htm [https://perma.cc/T2H8-KPKF] (“Without the NRA’s support, [Green] might very well have lost.”).

    [62] Interview by José Angel Gutiérrez with John Castillo, former Houston Councilman, in Houston, Tex. (June 26, 1996), http://library.uta.edu/tejanovoices/xml/CMAS_050.xml [https://perma.cc/8H7M-XW9K].

    [63] Bob Edwards, Transcript: Factors Contributing to Earl Hilliard’s Loss in Alabama’s Democratic Primary, NPR Morning Edition (July 2, 2002), http://www.npr.org/programs/morning/transcripts/2002/jul/020702.lohr.html [https://perma.cc/G6CK-UAN6].

    [64] Kristi Keck, Davis Loss in Alabama a Sign of Black Establishment’s Clout, CNN (June 2, 2010, 12:42 PM), http://www.cnn.com/2010/POLITICS/06/02/alabama.gubernatorial.primary.davis/ [https://perma.cc/2UWE-VD3R].

    [65] Juliet Eilperin, Davis Ousts Rep. Hilliard in Alabama Runoff, Wash. Post (June 26, 2002), https://www.washingtonpost.com/archive/politics/2002/06/26/davis-ousts-rep-hilliard-in-alabama-runoff/8829d148-a9b3-4f07-80ce-3c112576c784/?utm_term=.f49930ecb72f [https://perma.cc/WLA6-VDHH].

    [66] Michael Wilson, In Alabama Politics, How New Kid Won the Bloc, N.Y. Times (July 3, 2002), http://www.nytimes.com/2002/07/03/us/in-alabama-politics-how-new-kid-won-the-bloc.html [https://perma.cc/8EJH-SYEX].

    [67] Id.

    [68] Id.

    [69] Eilperin, supra note 65.

    [70] Cynthia Gordy, Artur Davis: Why I Left the Democratic Party, The Root (June 6, 2012), http://www.theroot.com/articles/politics/2012/06/artur_davis_republican_partys_new_member_explains_his_switch [https://perma.cc/L39P-6XLL].

    [71] Jonathan P. Hicks, A Congressional Seat in Play, and a Son Eager to Claim It, N.Y. Times (July 10, 2006), http://www.nytimes.com/2006/07/10/nyregion/10brooklyn.html [https://perma.cc/E5NU-87S7].

    [72] Michael Cooper, Councilwoman Wins Primary for House Seat, N.Y. Times (Sept. 13, 2006), http://www.nytimes.com/2006/09/13/nyregion/13cong.html [https://perma.cc/3KPG-3LKG].

    [73] Id.

    [74] See Hicks, supra note 71.

    [75] 377 U.S. 533, 565 (1964).

    [76] See infra Part V.C.

    [77] Spencer Overton, But Some Are More Equal: Race, Exclusion, and Campaign Finance, 80 Tex. L. Rev. 987, 1037 (2002).

    [78] Thornburg v. Gingles, 478 U.S. 30, 47 (1986).

    [79] Many thanks to Ron Fein and John Bonifaz at Free Speech For People, whose work and time speaking with me about a potential Section 2 challenge to our current money in politics regulatory landscape was extremely helpful as I began exploring this project.

    [80] See Ellen Katz et al., Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act Since 1982, 39 U. Mich. J.L. Reform 1, 34 (Dec. 2005), https://www.law.berkeley.edu/files/kats_discrimination_in_voting.pdf [https://perma.cc/67MN-YZ6J].

    [81] Id.

    [82] Id. at 33–34.

    [83] See supra notes 37–39 and accompanying text.

    [84] Overton v. City of Austin, 871 F.2d 529, 534 (5th Cir. 1989).

    [85] Mo. State Conference of the Nat’l Ass’n for the Advancement of Colored People v. Ferguson-Florissant Sch. Dist., 201 F. Supp. 3d 1006, 1076–78 (E.D. Mo. 2016).

    [86] See id. at 1076.

    [87] Id.

    [88] Paul Steinhauser & Robert Yoon, Cost to Win Congressional Election Skyrockets, CNN (July 11, 2013), http://www.cnn.com/2013/07/11/politics/congress-election-costs/ [https://perma.cc/J8EF-QTU8].

    [89] See supra Part III. A; Jamin Raskin & John Bonifaz, Equal Protection and the Wealth Primary, 11 Yale L. & Pol’y Rev. 273, 279 n.26 (1993) (noting overlap between white candidates and white interests, and that private financing benefits those candidates and interests over those preferred by nonwhite individuals).

    [90] 636 F. Supp. 1113, 1123 (E.D. La. 1986) (“[A]lthough no formal recruiting process exists, there does exist a more informal slating process.”).

    [91] See Perez v. Pasadena Indep. Sch. Dist., 958 F. Supp. 1196, 1223–24 (S.D. Tex. 1997).

    [92] See, e.g., Buckley, 424 U.S. at 246 (Burger, C.J., concurring in part and dissenting in part) (noting significant overlap between campaign contributions and endorsements).

    [93] McDaniels v. Mehfoud, 702 F. Supp. 588, 595 (E.D. Va. 1988) (“The median income for black families in the county is $19,824 versus $23,202 for white families . . . .These differences adversely affect the ability of black citizens to participate in and influence the political process in Henrico County. For example, while black candidate Thornton received slightly over $20,000 in contributions to his 1987 supervisory campaign, his white opponent, Waldrop, received slightly over $40,000 . . . participation in the political process is positively correlated with socioeconomic status.”).

    [94] Rural W. Tenn. African Am. Affairs Council v. Sundquist, 29 F. Supp. 2d 448, 459 (W.D. Tenn. 1998), aff’d, 209 F.3d 835 (6th Cir. 2000) (“The economic and educational isolation of African-Americans . . . limits their ability to fund and mount political campaigns. In this sense therefore, blacks are not able to equally participate in the political process.”).

    [95] Cofield v. City of LaGrange, 969 F. Supp. 749, 768 (N.D. Ga. 1997) (“The economic disparity between the races in LaGrange translates into a disparity in the ability to impact the local political process. For example, in the 1995 elections for City Council, none of the African-American candidates received more total monetary contributions than any of the white candidates. The African-American candidates received an average of $825.12 in contributions, and the white candidates received an average of $2,825.90 per candidate.”).

    [96] Ferguson-Florissant, 201 F. Supp. 3d at 1072 (citing expert testimony stating that that “recruiting candidates [and] coordinating” is costly and plaintiff testimony showing that “[b]lack voters in [the school district] may have fewer resources to volunteer or donate to Board campaigns.”).

    [97] Political Civil Voters Org. v. Terrell, 565 F. Supp. 338, 342 (N.D. Tex. 1983) (“The effects of those official, discriminatory acts clearly [linger] in the housing patterns. Those housing patterns, in turn, greatly impede the ability of blacks to enter the political system in Terrell.”).

    [98] See generally, e.g., supra note 96.

    [99] See infra notes 106–08 and accompanying text for more information on the burdens issue.

    [100] No. 86–4057, 1989 WL 106485, at *8 (E.D. La. Sept. 19, 1989), rev’d on other grounds by 917 F.2d 187 (5th Cir. 1990), rev’d by 501 U.S. 380 (1991).

    [101] Cousin v. McWherter, 904 F. Supp. 686, 710 (E.D. Tenn. 1995), vacated on other grounds by Cousin v. Sundquist, 145 F.3d 818 (6th Cir. 1998) (“Blacks in Hamilton County . . . remain a socioeconomically depressed minority with a limited ability to fund and mount political campaigns.”). The Sixth Circuit affirmed that court’s specific finding with respect to Senate Report factor five, even as it vacated the ruling. See 145 F.3d at 833.

    [102] Williams v. Dallas, 734 F. Supp. 1317, 1403 (N.D. Tex. 1990) (“The . . . commission found significant disparities in the education, employment, housing, and political opportunities available to minorities in Dallas. Credible testimony established that these socioeconomic disparities adversely affect political participation by blacks and Hispanics, and that they are ‘a reflection of prior discrimination in the community.’ These disparities provide a distinct advantage to white at-large candidates in terms of financial and other support.”).

    [103] Neal v. Coleburn, 689 F. Supp. 1426, 1429 (E.D. Va. 1988).

    [104] Id. at 1430. The court also noted that white control of political processes—including the fact that most polling places were in white neighborhoods staffed by white polling officials—was a relevant factor in determining a factor five violation. See id.

    [105] United States v. Charleston Cty., 316 F. Supp. 2d 268, 291 (D.S.C. 2003).

    [106] See Kirksey v. Bd. of Supervisors, 554 F.2d 139, 144–46 (5th Cir. 1977).

    [107] Gretna, 636 F. Supp. at 1134 (internal citations omitted).

    [108] See United States v. Blaine Cty., 363 F.3d 897, 914 (9th Cir. 2004).

    [109] 52 USC § 10301(b) (2014) (“[N]othing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”).

    [110] See, e.g., Earl Old Person v. Brown, 312 F.3d 1036, 1048 (9th Cir. 2002) (“[W]e do not read section 2 of the Voting Rights Act to require any precise mathematical calculation of percentages of success in election.”); Terrazas v. Clements, 581 F. Supp. 1329, 1356 (N.D. Tex. 1984) (“A lack of proportional representation has no independent constitutional or statutory significance.”).

    [111] I might argue that the problem of incumbency exacerbates the problem of nonwhite representation and allows critics to attribute disproportionately high white representation simply to the power of incumbency without considering race. Yet, Professor James Snyder reports that initial evidence shows that most of the incoming money since Citizens United has gone to challengers, which has somewhat decreased the incumbency advantage. James Snyder, Professor, Harvard Univ., Lecture at Election Law Class Eight at the Harvard Law School (Nov. 7, 2016). In this way, defenders of the current campaign finance system could potentially use this initial data to argue that restricting money would disproportionately burden nonwhite voters.

    [112] Arbor Hill Concerned Citizens Neighborhood Ass’n. v. Cty. of Alb., No. 03-CV-502, 2003 WL 21524820, at *13 (N.D.N.Y. July 7, 2003); Mehfoud, 702 F. Supp. 588, 590 (E.D. Va. 1988).

    [113] Buchanan v. Jackson, 683 F. Supp. 1515, 1535 (W.D. Tenn. 1988).

    [114] See, e.g., Mississippi State Chapter, Operation Push v. Allain, 674 F. Supp. 1245, 1265 (N.D. Miss. 1987) (noting that black people made up about 35 percent of the population but less than ten percent of elected officials); Major v. Treen, 574 F. Supp. 325, 341 (E.D. La. 1983) (noting that black people made up more than 29 percent of the population but just seven percent of Louisiana’s elected officials).

    [115] See, e.g., Blaine Cty., 363 F.3d at 914 (stating that Americans Indians declined to run for office because they felt they could not win in an at-large election); Clark v. Calhoun Cty., 88 F.3d 1393, 1398 (1994); LaGrange, 969 F. Supp. at 776. Ironically enough, the Fifth Circuit has said that a nonwhite candidate’s inability to raise money is a potential proxy to argue that the candidate was not credible or serious enough to merit a factor seven finding—without considering that a candidate might be unable to raise money precisely on account of his race. See Rollins v. Fort Bend Indep. Sch. Dist., 89 F.3d 1205, 1215 (5th Cir. 1996).

    [116] Cal. Elec. Code §§ 14027–28 (2002).

    [117] Brief for Free Speech for People et al., as Amici Curiae Supporting Appellants, Lair v. Motl, (9th Cir. Oct. 5, 2016) (No. 16-35424).

    [118] See Id. at *19–20

    [119] The participation of low-income and minority voters giving small-dollar campaign donations was significantly higher in the 2009 New York City Council Elections than in the 2010 State Assembly elections. Sundeep Iyer et al., Brennan Ctr. & Campaign Fin. Inst., Donor Diversity Through Public Matching Funds 14 (2012), http://www.brennancenter.org/sites/default/files/legacy/publications/DonorDiversityReport_WEB.PDF [https://perma.cc/Z43T-8YLF]. New York City had a small-dollar matching public financing system, whereas New York State did not. See id. at 6.

    [120] See supra note 52 and accompanying text.

    [121] Small-dollar donations from minority neighborhoods were more significant financially to New York City Council candidates—where there was a public financing system—than were donations from those neighborhoods to State Assembly candidates. See Iyer, supra note 119.

    [122] See supra note 53 and accompanying text.

    [123] See, e.g., Edelman v. Jordan, 415 U.S. 651, 677 (1974).

    [124] 403 U.S. 365 (1971).

    [125] Milliken v. Bradley, 433 U.S. 267, 291 (1977).

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