February 09, 2020 HUMAN RIGHTS

Following the Blueprint: How a New Generation of Segregationists is Advancing Racial Gerrymandering

by Nancy G. Abudu

The Voting Rights Act of 1965 (VRA) is arguably the most important and successful piece of civil rights legislation ever passed. The U.S. Constitution already has more amendments, six to be exact, dedicated to the right to vote than any other fundamental right, but the VRA put actual teeth behind the protection of this principle by zeroing in on the most egregious forms of voter suppression. Many VRA cases have focused on challenging redistricting plans as racial gerrymanders specifically designed to entrench an incumbent’s political power and/or to deny or dilute the voting strength of people of color and economically disadvantaged populations. Although redistricting and gerrymandering, in and of themselves, are not necessarily problematic, they continue to be contorted into a nefarious tool that actually cements historical forms of segregation, especially in the areas of housing and education. 

This political cartoon was drawn in reaction to the newly drawn congressional electoral district of South Essex County drawn by the Massachusetts legislature to favor the Democratic-Republican Party candidates of Governor Elbridge Gerry over the Federalists.

How Segregation Robs Minorities of Their Vote

Unconstitutional redistricting methods like “packing” and “cracking” were and still are the primary means of ensuring that minority voters are either concentrated into a single area so that their political power is contained (packing) or divided up in ways to diminish their ability to ever coalesce behind a single candidate who advances their community’s shared interests (cracking). Annexations, de-annexations, and the incorporation of new cities have been a creative and, oftentimes, successful method of achieving racial gerrymanders.

Sadly, many white residents, whether in rural or urban communities, have tended to resist efforts at true integration. They tend to publicly express support for the dream of multicultural neighborhoods while at the same time do their best to make sure they live in predominantly white areas, their children go to predominantly white schools, and the opportunities for social interaction among the races remain low. The result can be seen in a casual Sunday drive through most cities in America—you know when you’ve gotten to the “black side of town” by the poor condition of the roads and homes, the lack of economic development, and the general feeling in the air of hopelessness or despair. The intentional creation of all-black and all-white communities, coupled with the diversion of financial resources and roadblocks for economic self-determination, result in the portrayal of black communities as “bad and dangerous” and white communities as “good and safe.”

Over the years, courts have struck down redistricting plans that deepen racially driven housing plans, mostly with the aid of Section 5 of the VRA, which requires a jurisdiction with a history of discrimination in voting to obtain federal approval, known as preclearance, before it can enact any voting change, whether as seemingly minor as relocating a polling place or the adoption of new voting laws. Section 5’s goal was to make sure that racial minorities’ political strength could be maintained and, where supported by the evidence, increased. If Section 5 proved unhelpful, then communities could turn to Section 2 of the VRA, which prohibits any voting practice, procedure, or policy that denies or dilutes minority voting strength (52 U.S.C.A. § 10301 (a), (b)). 

Louisiana: A Case in Point

Unfortunately, as a result of a 2013 U.S. Supreme Court decision that struck down the formula for identifying which jurisdictions need Section 5 preclearance, the protection against the use of housing discrimination as a form of vote denial or dilution has eroded. (See Shelby County, AL v. Holder, 570 U.S. 529 (2013).) The consolidated city/parish of East Baton Rouge, Louisiana, and the newly created and contested city of St. George are just the most recent examples of that continuing phenomenon. During Hurricane Katrina, Baton Rouge served as a refuge for the predominantly black population in New Orleans escaping the floods to save their lives. While the national outpour of empathy and support was heartwarming, the ultimate long-term reaction from many whites to their new black neighbors was to break away and create their own city—the city of St. George—by carving out a section on the southeastern portion of the parish.

Now, the original motivation behind St. George’s creation was to give wealthy, white parents an affordable alternative for primary and secondary education by taking their children and their tax dollars out of the predominantly black public school system and concentrating those resources into their own almost all-white enclave. (Adam Harris, “The New Succession,” The Atlantic, May 20, 2019.) (“According to a recent report from EdBuild, a nonprofit focused on public-school funding, 73 communities have split to form their own school districts since 2000, and the rate of places doing so has rapidly accelerated in the past two years.”) Efforts toward building their own school district began in 2012 with a bill that failed to get enough votes for passage. After a similar unsuccessful legislative effort in 2013, the white residents decided that instead of creating their own school district, they would just create their own city. The first attempt at incorporation was ineffective, in part because of the opposition they received from black residents who did not want to be cut off from the rest of the city of East Baton Rouge. The white residents, undeterred, simply drew another proposed city plan that carved out the black opponents, which helped to secure ultimate victory and incorporation in the November 2019 election.

In addition to severe criticism for its gerrymandered plan that carved out a black population to make the city even more white, there was a public outcry regarding the exclusion of voters in the city of Baton Rouge from the incorporation vote. The primary arguments of those living outside of the new city were that: (1) Non–St. George residents would be directly and negatively impacted by the loss of the tax base in terms of meeting the financial needs of the city and parish; (2) The new city was ill-equipped to handle the infrastructure needs it now has and, as a result, would still be relying on Baton Rouge’s services; and (3) Any incorporation should be voted on by all of the residents of the parish who are directly impacted by the departure of such a significant segment of its population.

Notably, even though only one-third of the residents of East Baton Rouge Parish now constitute the new city of St. George, those same residents represent about two-thirds of the Parish’s tax base. (Stephanie Riegel, “After St. George Vote, Baton Rouge Must Determine New Fiscal Reality,” Business Report, Oct. 14, 2019.) Consequently, it is estimated that with the incorporation, the city-parish budget will shrink by $48 million. Moreover, according to July 1, 2019, census data, 47.8 percent of the population in East Baton Rouge Parish is white and 47 percent is black (www.census.gov/quickfacts/eastbatonrougeparishlouisiana). However, by cutting out a significant chunk of the black population, proponents of the new city ensured that the community would be overwhelmingly white (at about 70 percent), and the black percentage barely reaches 15 percent.

These arguments are fleshed out in the complaint that the mayor of Baton Rouge and residents filed soon after the vote for incorporation to block the city’s creation. That case is still pending in the circuit court, and the prospects for success remain uncertain. Louisiana law does provide that in an election on incorporation, only “qualified electors residing within the area proposed for incorporation shall be entitled to vote.” La. Stat. Ann. § 33:3 (A).

The Courts Remain Divided

On the one hand, courts have recognized that annexation plans, for example, drawn specifically to eliminate or reduce a minority population and to increase the prospect of the measure passing are unconstitutional. City of Birmingham v. Community Free District, 336 So.2d 502 (Ala. 1976). This is in regard to setting aside votes in favor of annexation based on evidence that supporters of annexation specifically drew opponents of the measure out of the districting plan to ensure adoption. On the other hand, courts have upheld similar plans on the ground that it is not unlawful or a form of vote dilution or suppression to restrict the vote to only those living in the proposed new city or district. Broyles v. Texas, 618 F. Supp. 2d 661, 665 (S.D. Tex. 2009), aff’d, 381 F. App’x 370 (5th Cir. 2010).

This ruling determined that a government unit may legitimately restrict the right to participate in its political processes to those who reside within its borders and that such a restriction does not violate the Equal Protection Clause. (See also Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 68–69 (1978) (“[O]ur cases have uniformly recognized that a government unit may legitimately restrict the right to participate in its political processes to those who reside within its borders.”)) Given the lack of uniformity and clarity in terms of the cases, places like the city of St. George essentially are getting away with a modern form of racial and economic discrimination, one that has a direct impact on the political strength, economic base, and future success of minority communities.

Where Do We Go from Here?

One solution is to continue pursuing these issues through litigation; another solution is to pressure and shame elected officials who represent these racially gerrymandered communities into doing right by their neighbors and making sure that every person has access to a great school, decent affordable housing, and other basic human needs. Regardless of which approach communities adopt, we all have to play a role in stemming a tide that is all too reminiscent of a racist, marginalized, and hostile world that the VRA was enacted to help topple.

Nancy G. Abudu is the deputy legal director at the Southern Poverty Law Center, which is dedicated to ensuring the voting rights of minorities and other vulnerable populations, primarily in the Deep South. She was previously the legal director for the American Civil Liberties Union of Florida and has also served as a senior staff attorney with the ACLU’s Voting Rights Project.