Do racial disparities in the use of voting procedures — even disparities of recent vintage — prove that those procedures, or any changes to them, are voter suppression in violation of the Voting Rights Act? That is the position implicit in the Justice Department’s lawsuit against Georgia. One of the problems with this theory that it opens laws to unpredictable legal challenges based solely on voter behavior that can easily change and may be specific to particular candidates. Consider survey data from New York City’s introduction of ranked-choice voting, used for the first time in the June 22 Democratic primary:
The survey of nearly 1,700 New Yorkers as they left the polls reveals that 42 percent of New Yorkers used all five choices on their ballot to cast their vote in the contest for the Democratic Party’s nomination . . . white voters were the most likely to take full advantage of ranked-choice balloting, with 45 percent using all five spots; black voters were the second-most likely at 43 percent. However, pollsters also reported that 25 percent of black voters cast ballots with just one mayoral candidate, which is more than double the 10 percent of ballots cast by whites with just one vote.
Given how ranked-choice voting works, you could read this different ways. On the one hand, black voters were much more likely to cast a vote for only one candidate (in many cases, undoubtedly, front-runner Eric Adams, who is black and was the first choice in many of the city’s black neighborhoods). On the other hand, white voters were more likely to mark the lower spots on the ballot, thus giving them a greater say than black voters in the ranking of all candidates. Arguably, the latter means that introducing ranked-choice voting diluted the voting power of black voters. But is that really an effect of the new rule, or just how voters happened to exercise their choices in one particular election? If there is no Voting Rights Act violation because this is just one election, would it retroactively become one if the pattern persists over time? To ask the question is to reveal the problems with such an open-ended reading of the statute.