Article

Judicial Ideology and the Transformation of Voting Rights Jurisprudence

Adam B. Cox

Assistant Professor of Law, The University of Chicago

Thomas J. Miles

Assistant Professor of Law, The University of Chicago

We are grateful to Rosalind Dixon, Heather Gerken, Rick Hasen, Sam Issacharoff, Jonathan Masur, Rick Pildes, Adam Samaha, Max Schanzenbach, Josh Sellers, Cass Sunstein, Emerson Tiller, Dan Tokaji, and Fred Vars for helpful comments and conversations. We would also like to thank the workshop participants at Northwestern University School of Law, University of Toronto Faculty of Law, Yale Law School, the Searle Symposium on Empirical Studies of Civil Liability, and the Conference on Empirical Legal Studies. Carolyn Sha and Annabelle Yang provided invaluable research assistance.

The history of Voting Rights Act litigation is usually told as a tale of formal jurisprudential change. The history divides voting rights litigation into two periods separated by a sharp break—a break marked by an amendment to the text of the statute and by the introduction of a new doctrinal framework. The amendment occurred in 1982, when Congress recast § 2 of the Act as the central judicial tool for enforcing minority voting rights. The Supreme Court responded to this revision a few years later by forging a new doctrinal framework in the seminal case of Thornburg v Gingles. This transformation by Congress and the Court ushered in the modern era of vote dilution litigation. Lawsuits brought under § 2 became a centrally important mechanism for the enforcement of minority voting rights. And the framework laid down in Gingles became the linchpin of this litigation. This Article argues that the standard history is incomplete. The focus on the formal features of voting rights doctrine, while important, leaves out the actual practices of lower courts that decide voting rights cases.

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