Race in Redistricting
Racial considerations in the redistricting process are unavoidable. Racial demographics are included in census data and even if they were not included, many line-drawers still have first-hand knowledge of the racial demographics of the neighborhoods they redistrict. Because of this, courts have warned that line-drawers must be mindful of how district boundaries affect race. Since each decision to place a boundary line directly affects a community, colorblind line-drawing can be just as harmful to a racial group as conscious manipulation.
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The federal legal framework addressing race in redistricting has evolved considerably since the sixties. The Voting Rights Act of 1965 and Supreme Court precedent make up the bulk of the rules on race in redistricting. The court and certain provisions of the VRA work to balance the tension between political goals in redistricting and protecting the representational rights of minorities. The court has worked to protect not only minority voters but voters of every race from the diminution of their representational rights. Specific legal rules, however, do address intentional and unintentional minority vote dilution.
Voting Rights Act Sec. 5 (Preclearance): As an aggressive response to pervasive racial discriminatory practices against minority voters in many places in the country, the VRA was enacted to prevent minority disenfranchisement such as poll taxes, literacy tests, and many other tactics to discourage minority voters from exercising their 15th amendment right to vote. The most aggressive response was section 5 of the VRA, which required specific jurisdictions in the states to obtain prior approval, or preclearance from the Dept. of Justice (DOJ) or court—for any change in voting procedure. The reasoning was that these practices had been too effective at muting the vote of minority populations and that any system to check this behavior would have to prevent it from happening altogether. Redrawing political maps was an included activity under the preclearance regime.
Under preclearance, covered states and local jurisdictions had to submit redistricting maps to either the DOJ or the Federal District Court for Wash. DC. Most took the more convenient route of submitting map changes to the DOJ. Generally speaking, the newly drawn map could not dilute the political power of any protected minority group when compared to the existing map. In other words, a minority group could not fare worse under the new map.
As one might expect, many of these covered jurisdictions disputed the DOJ’s assessment and sued in court. As a result, there is a good 30 years or so of court precedent that interprets the provisions of section 5.
Section 5 No Longer Enforceable: Most importantly, the Supreme Court’s decision in Shelby County v. Holder, ended the preclearance regime until congress acts to update the terms of section 5. Put simply, section 5 applied to a list of jurisdictions around the country (some whole states and some local jurisdictions). The list was determined by a specific coverage formula outlined in section 4 of the statute. That formula had not been updated since the 1970’s and the Court was reluctant to assume that the same jurisdictions involved in discriminatory behavior nearly 50 years before, were still culpable in 2015. The practical solution to making section 5 enforceable again would be for Congress to update the formula it used. It has not done so to date.
Voting Rights Act Sec. 2 (Minority Vote Dilution): Section 2 of the VRA applies to the entire nation and prohibits any state or political subdivision from imposing any voting qualification, standard, practice, or procedure that results in the denial or abridgment of any U.S. citizen’s right to vote on account of race, color, or status as a member of a language minority group. The provision says in part:
[a violation occurs if] the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of . . . [a racial, color, or language minority class] . . . in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected . . . is one circumstance which may be considered: Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.[1]
The text of Sec. 2 targets voting procedures that “diminish the ability of citizens to elect their preferred candidates.” Corralling supermajorities of voters of the same race in an electoral district (packing) or separating significant concentrations of voters (cracking) has been found by courts as meeting the definition of minority vote dilution. The text of section 10304(a) reads;
Any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color, . . . to elect their preferred candidates of choice denies or abridges the right to vote . . ..
Of course the devil is in the details, and courts have long struggled with rules, standards and measures that determine when a group’s vote has been diluted in violation of the Act. The rules are complex and have evolved through the decades, but generally speaking, courts offer protection under section 2 if it is clear through past elections that the racial group is compact enough to be in its own district and votes cohesively for a preferred candidate but the districting scheme is such that white voters in that district consistently vote in a bloc to defeat the minorities preferred candidate. These elements makeup part of the proof for a successful claim under section 2 and are called the Gingles factors, named after Thornburg v. Gingles. The actual analysis is complex and detailed and much has been written about legal analysis under Gingles.
14th Amendment (Racial Gerrymandering): Because race is considered a “suspect class” by the courts in 14th amendment Equal Protection cases, redistricting maps cannot be drawn primarily on the basis of race; Just as employment decisions cannot be made on that basis. While state and local jurisdictions must consider race to ensure that district maps do not unfairly dilute minority voting strength under the VRA, they must simultaneously ensure that their line-drawing decisions are note predominantly based on the race of the population within these districts.
The Supreme Court encapsulated this balancing principle in a line of cases beginning with Shaw v. Reno in 1993. That case, was among others in which state legislatures, either at their own discretion or at the behest of the Justice Department’s oversight under preclearance – overzealously created black majority-minority districts for fear of running afoul of the VRA. Put simply, in some jurisdictions, if it were at all possible to create a black-majority district, line-drawers created one. In Shaw, a group of white voters challenged this strategy and the court sided with them in circumstances where there was no justifiable reason under the VRA to create a minority district, the district is geographically irregular, and where it was evident that race was the overriding factor in creating the district.
Today, defendants in a racial gerrymandering case may use the VRA as a defense, however, if a court finds that the VRA did not call for a minority district, the defendants will likely have difficulty proving that the district lines were not drawn using race as the primary consideration.
[1] 42 U.S.C. § 1973 (b) (2006).
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