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349 THIS ESSAY IS INTENDED as an empirical complement to Grofman (2006). That essay considered the evolution of the non-retrogression standard used in Section 5 of the Voting Rights Act (VRA), and proposed a new and very specific three-part operationalization of what I took to be the majority views in the Supreme Court’s 2003 decision in Georgia v. Ashcroft on the meaning of “retrogression.” Here, I show the kind of expert witness testimony that could have been presented in the D.C. district court had the Supreme Court remand of the 2001 Georgia Senate plan gone to trial—an event that never happened because it was mooted by the decision in Larios v. Cox (D. Ga., 2004) to invalidate the Georgia legislative plans on grounds of violations of “one person, one vote.” Contrary to what appears to be the expectations of the Supreme Court majority, I argue that the 2001 Georgia Senate plan, even had it satisfied one person, one vote scrutiny, would not necessarily have passed muster under the new Section 5 retrogression test set forth by the Court majority in Georgia v. Ashcroft. Even looking only at retrogression in minority influence, I find the State of Georgia’s defense of the 2001 plan as non-retrogressive to be flawed. Nonetheless, I view the outcome of a remand trial as “too close to call.” It would have depended upon the persuasiveness of attorneys and experts, and on a handful of key factual issues about whose resolution I can now only speculate given the limitations of the empirical evidence from the public record I had available to me while writing this essay. In any case, regardless of what legal standard may ultimately be adopted, the flow chart model offered in this article (taken from Grofman, 2006), with its enumeration of a carefully sequenced set of factual questions that need to be answered, offers a powerful tool to assist courts to make best use of expert witness testimony to determine compliance with the VRA, and illustrates how this standard can be empirically implemented with real world data. And, perhaps even more importantly, it provides a roadmap to think sensibly about the complicated question of minority political influence which is germane well beyond the litigation context.

Thinking about Minority Political Influence: Did Georgia v. Ashcroft Get It Right and, If Not, Why Not?