February 2009 Vol. 107 No. 4 THE REVIEW

Causation or Correlation? The Impact of LULAC v. Clements on Section 2 Lawsuits in the Fifth Circuit

Elizabeth M. Ryan

Under section 2 of the Voting Rights Act, illegal vote dilution exists when an electoral standard, practice, or procedure results in a denial or abridgement of the right to vote on account of race or color. Plaintiffs demonstrate vote dilution by introducing evidence regarding a variety of objective factors, including whether voting in the jurisdiction in question is polarized along racial lines. In 1993, the Fifth Circuit adopted a new standard for section 2 plaintiffs trying to prove racially polarized voting. The Fifth Circuit held that demonstrating a mere correlation between race and vote was insufficient to establish racially polarized voting when some factor other than race might explain an apparent divergence in voter preferences. Instead, plaintiffs must show that race-based considerations caused the polarized voting pattern. Many commentators lamented the decision and predicted that the new standard represented the death knell for section 2 lawsuits in the Fifth Circuit. This Note examines the history of section 2 as amended and concludes that the Fifth Circuit’s standard is inconsistent with congressional intent and misconstrues Supreme Court precedent. This Note reviews Fifth Circuit case law applying the new standard and finds that it may be outcome determinative when applied, but that few cases actually turn on the application of the standard, which suggests that its impact has been less pervasive than commentators feared.

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