As Redistricting Begins, the Law Is Far from Settled

Vol. 37 No. 4

Thomasina H. Williams is an attorney licensed to practice in Florida. During the 2000 round of redistricting, she represented individual voters and Florida Democratic state legislators during the legislative process, as well as through the state and federal litigation. She can be reached at thwilliamslaw@gmail.com.

The Voting Rights Act, 42 U.S.C. §§ 1973−1973aa-6, is often heralded as the most effective civil rights law ever adopted. The law was enacted in 1965, during the height of the civil rights movement, when state-sponsored discrimination overtly and systematically denied blacks the right to vote. Today, there are those who cite the election of Barack Obama as the nation’s first black president as evidence that the act has served its purpose and is no longer needed.

Yes, Obama received the largest popular vote on record. And, yes, his electoral vote total was at the higher end of the spectrum. Despite these impressive vote totals, however, Obama lost every Southern state that is fully covered by the pre-clearance provisions of section 5 of the Voting Rights Act. Just as there are those who contend that Obama’s historic election is a sign that the nation has reached racial equality in politics, there are others who argue that Obama’s losing across the South is indicative of the racially polarized voting that still exists, and that the Voting Rights Act is still very much needed.

The onslaught of litigation by forces seeking to weaken voting rights protections for people of color suggests that, for some, the election of the nation’s first black president may be as much a reason to turn back the clock as it is for others a cause for celebration.

Key Provisions of the Voting Rights Act

Section 2 is the key provision of the Voting Rights Act that applies nationwide to prevent dilution of minority voting strength. Section 2 prohibits any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” 42 U.S.C. § 1973(a). Section 4(f)(2) of the act also prohibits discrimination on the basis of membership in a language minority group. 42 U.S.C. § 1973b(f)(2).

Section 5 is the temporary provision of the Voting Rights Act that requires that certain state and local jurisdictions—mostly, but not exclusively, in the South—are required to secure approval from the federal government before any change related to voting or elections can take effect. 42 U.S.C. § 1973c(a). Congress has reauthorized section 5 four times, most recently in 2006. See Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, 120 Stat. 577 (2006). Under section 5, covered jurisdictions must demonstrate to either the U.S. Department of Justice or a three-judge panel of the U.S. District Court for the District of Columbia that the proposed change does not have a discriminatory purpose and would not leave minority voters in a worse position than if the change did not occur. Section 5 applies to redistricting plans.

Redistricting is the process by which congressional, state legislative and local districts are redrawn after every decennial census to account for population shifts during the previous decade.

Reapportionment is the process by which the 435 seats in the U.S. House of Representatives are reallocated among the fifty states each decade, based on the official decennial census count. The 2010 census count confirmed that the nation’s population is continuing to trend toward growth in the South and the West, the two regions of the country where the largest numbers of people of color live.

Eighteen states are impacted by the 2010 reapportionment of congressional seats, and seven of those eighteen are subject in whole or in part to preclearance under section 5. All of the section 5 states that are gaining seats are in the South—Texas (gaining four seats), Florida (gaining two seats), and Georgia and South Carolina (gaining one seat each). And one of the states that is losing a seat (Louisiana) is also in the South. See Interactive map & tables at http://www.nytimes.com/interactive/2010/12/21/us/census-districts.html.

Redistricting and reapportionment are about the formal allocation of political power. As famed abolitionist and public intellectual Frederick Douglass is quoted as saying: “Power concedes nothing without a demand. It never has, and it never will.” This is why there has been redistricting litigation that ended up in the U.S. Supreme Court in every decade since the 1960s, most of it originating in the South.

Challenges of the Last Decade

While it had always been assumed that redistricting could happen only once a decade, immediately after each decennial census, in League of United Latin American Citizens (LULAC) v. Perry, 548 U.S. 399 (2006), the Court held that it was perfectly appropriate for the Republican-controlled Texas legislature to engage in mid-decade redistricting, even though the legislature clearly did so to gain partisan advantage.

Although the Court did not find the partisan manipulation in Perry unconstitutional, it did find in favor of the Latino plaintiffs on their vote dilution claim. The legislature had drawn a redistricting plan that dismantled an existing majority Latino district that had afforded Latinos an opportunity to elect their candidates of choice and created a new Latino district elsewhere by connecting two geographically distant areas. The population of the original district was more than 50 percent Latino citizens of voting age, while the new district was less than 50 percent Latino citizens, but more than 50 percent Latino total population. Latinos in the new district might be able to influence an election, but they could not elect their candidates of choice.

The legislature’s purpose in eliminating the original district and drawing the new one was to protect a Latino incumbent who was no longer favored by Latino voters in the original district. The Court held that the new district was not a constitutionally permissible substitute for the original district. The impact of the Perry decision for racial vote dilution claims is twofold: (1) the minority group must be geographically concentrated and (2) it is not enough that a district affords a minority group an opportunity to influence elections, the district must afford the group an opportunity to elect its candidate of choice.

Another case in North Carolina will impact how district lines are drawn this cycle. In Bartlett v. Strickland, 129 S. Ct. 1231 (2009), the Court held that to prevail on a section 2 vote dilution claim, the plaintiff’s racial or ethnic minority group must constitute a numerical majority of the voting age population of the district in question. After Bartlett, those districts where a minority group is less than 50 percent of the population but can still elect its candidate of choice are not protected by the Voting Rights Act. The potential impact of this reinterpretation of section 2 is readily apparent when considering that fifteen of the forty members of the Congressional Black Caucus (in the 111th Congress, 2009–10) were from districts where the black population is less than 50 percent.

A second Texas case of note from the last decade is Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder, (2009). The NAMUDNO case was filed the day after the last reauthorization of section 5. To the surprise of many, the Court declined to hold section 5 unconstitutional. It did so because it disposed of the case on a narrower ground. The case is nevertheless important because, although the Court did not decide the issue, it raised serious questions about the constitutionality of section 5.

Current Challenges

Among the major issues that will impact this round of redistricting are (1) the constitutionality of section 5 and (2) whether total voting age population or citizen voting age population is the dataset used to draw districts.

Section 5 Still Under Attack

Shortly after the NAMUDNO case, three cases were filed in the federal district court in the District of Columbia challenging the constitutionality of section 5: Georgia v. Holder, Case No. 10-1062; Shelby County, Alabama v. Holder, Case No. 10-00651; and Laroque v. Holder, Case No. 10-0561.

The Georgia case was settled after the attorney general agreed to pre-clear the state’s proposed change. The Laroque case, which involves a local jurisdiction in North Carolina, was dismissed on the grounds that the individual plaintiffs lacked standing. However, the plaintiffs have appealed. As of January 31, 2011, cross-motions for summary judgment were pending in the Alabama case. It remains to be seen whether either the Laroque or the Alabama case reaches the Supreme Court and, if either does, whether it will be in time for a decision that impacts this redistricting cycle. Clearly, this is the plaintiffs’ goal.

During the proceedings for reauthorization of Section 5, voting rights advocates argued that the mere fact that the law exists prevents many jurisdictions from adopting procedures that they otherwise would have. If the Court declares section 5 unconstitutional, many voting rights advocates are concerned that covered jurisdictions throughout the South and elsewhere will revert to tactics that keep voters of color from electing their candidates of choice.

As the then-president of the American Civil Liberties Union testified while explaining the litigation report on the 293 voting rights cases in thirty-one states that her organization had participated in since the 1982 reauthorization, “in the absence of section 5, minority voters would become increasingly marginalized during the redistricting process and elected officials would be more inclined to adopt voting changes that disadvantage minority voters.” Voting Rights Act: Evidence of Continued Need, Hearing before Subcommittee on Constitution of House Committee on Judiciary, 109th Cong., 2d Sess., at 40 (2006) (testimony of Nadine Strossen); see also id. at 47 (testimony of Honorable Joe Rogers, Comm’r, National Commission on the Voting Rights Act & former lieutenant governor of Colorado).

Anti-immigrant Sentiment InfectsVoting Rights

Other pending litigation is challenging the use of total voting age population data to draw districts and arguing that only the citizen voting age population (CVAP) should be considered. Last year, in Lepak v. City of Irving, Case No. 10-0277 (N.D. Tex.), individual voters sued, alleging that the city’s newly created majority Latino district violated the principle of one-person one-vote because the CVAP in the district was substantially less than the CVAP in each of the other districts. The city had created the Hispanic district in response to earlier litigation that found that its at-large system of elections diluted Hispanic voting power. As of January 31, 2011, cross-motions for summary judgment are pending.

During the last decade, Texas experienced the largest population growth of any state in the nation—4.2 million new residents. Nearly two-thirds (63.1 percent) of this increase was due to an increase in the Latino population. The 2010 Reapportionment and Latinos, Pew Hispanic Ctr. at 5, 7 (Jan. 5, 2011) http://pewhispanic.org/files/reports/132.pdf.

Texas also has the second largest number of unauthorized immigrants in the nation, behind California. Unauthorized Population Trends, National and State, 2010, Pew Hispanic Ctr. 14, 15 (Feb. 1, 2011) http://pewhispanic.org/files/reports/133.pdf.

The focus on citizenship in Lepak is not coincidental but is being driven, at least in part, by the anti-immigrant sentiment plaguing much of the country. While all noncitizen residents obviously are not unauthorized, and all unauthorized residents are not Latino, most unauthorized residents in Texas, and nationally, are in fact Latino.

Because the Constitution requires that reapportionment must be based on total population, CVAP cannot be used for this purpose. However, an analysis of reapportionment using CVAP for illustration purposes only is instructive as to the impact of using CVAP, instead of total population data, to draw districts once the number of districts is determined.

Texas’ record growth earned it four new congressional seats, the most of any state. Although the 2010 census did not ask about citizenship, estimates based on other U.S. Census Bureau data are that if citizenship is taken into account, Texas would have gained only two new congressional seats, not four. Instead of keeping the same number of congressional seats, California would have lost five seats, and the apportionment would have been different for twelve additional states. See http://www.polidata.org/census/st010nca_cit.pdf. Thus, whether total population data or CVAP data are used has huge implications for those jurisdictions that have substantial numbers of residents who are not citizens.

Reform Efforts

Litigation may also result this cycle from changes in the manner in which redistricting is done. While redistricting is done in most states by legislators, a few states have other procedures in place—and most of these states have relatively small minority populations. (For state-by-state information, see  Nat’l Conference of State Legislatures, Redistricting Law, 2010, at Appendices A−D (Nov. 2009).)

Some reform advocates fault redistricting for the hardened partisanship and lack of competition in elections that characterize much of the current political context. They argue that because legislators draw their own districts in most states, these legislators are driven by self-interests and not the interests of voters. However, there is a substantial body of evidence that refutes these assertions. See, e.g., Raymond La Raja, Redistricting: Reading Between the Lines, 12 Ann. Rev. Pol. Sci. 203 (June 2009), available at http://www.annualreviews.org/doi/abs/10.1146/annurev.polisci.10.071105.095822; Alan I. Abramowitz, Brad Alexander & Matthew Gunning, Incumbency, Redistricting and the Decline of Competition in U.S. House Elections, 68 J. Pol. 75 (2006), available at http://journals.cambridge.org/action/displayAbstract;jsessionid=5F3640532550102ED93D808DD8E
DABFA.tomcat1?fromPage=online&aid=1962772
; Keiko Ono, Electoral Origins of Partisan Polarization in Congress: Debunking the Myth, Extensions, Fall 2005, at 15, available at http://www.ou.edu/special/albertctr/extensions/fall2005/Ono.pdf; Thomas Brunell & Bernard Grofman, Evaluating the Impact of Redistricting on District Homogeneity, Political Competition and Political Extremism in the U.S. House of Representatives, 1962–2002, Paper Presented at Annual Meeting of American Political Science Association, Washington, DC (Sept. 1, 2005).

Nonetheless, reform advocates have been successful in changing the way redistricting will be done in two of the nation’s largest states, which also have among the largest populations of people of color.

In 2008, California voted by the narrowest of margins (50.9 percent) to create a citizens commission to draw its state legislative districts. Last fall, Californians voted to extend the commission’s authority to draw congressional districts as well. Redistricting reform advocates in Florida tried several years ago to create a commission to draw district lines but failed to get it on the ballot. Last fall, however, they were successful in having voters adopt criteria that legislators must follow in drawing congressional and state legislative districts.

Observers across the country will be watching to see how the process unfolds in California and Florida. Opponents of California’s commission view it as fundamentally antidemocratic to place redistricting decisions in the hands of private citizens who are not elected by, and therefore not accountable to, voters. Other activists question the intense push for reforms just as the numbers of legislators of color who would otherwise be making redistricting decisions are reaching critical mass.

Many are also concerned that, while Florida’s new criteria may be neutral on their face, the combination of competing criteria and the lack of definitions for these criteria may result in redistricting plans that infringe on the ability of minority voters to elect their candidates of choice. One thing that many observers do agree on: The reforms adopted in California and Florida increase the likelihood of litigation.

In short, as the country enters this redistricting cycle, voting rights law and applicable procedures remain unsettled. If history is any predictor of the future, at least one of the cases likely to result from this redistricting cycle will end up in the Supreme Court.

 

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