Last week, the issue of redistricting was on the minds of the Washington elite and election law practitioners across the country as the Supreme Court heard arguments, in an unusual two hour session, in the Texas mid-decade redistricting case. The plaintiffs argument in the case was that the only reason the unusual redistricting was done was for purely political reasons. As a result of the Texas case and the 2004 Vieth case which dealt with partisan gerrymandering in Pennsylvania, a renewed interest in the methodology of drawing district lines has become fashionable in certain circles. Rep. John Tanner (D-TN) has introduced in the House of Representatives, the Fairness and Independence in Redistricting Act (H.R. 2642). It will be an utter and abject failure because it fails to legislatively retract what has become the greatest intellectual fraud in voting rights litigation, the claim of vote dilution and retrogression under the Voting Right Act.
This article has gotten quite long and thus will come in three parts. This first part deals mainly with retrogression. The second part will deal with vote dilution. Finally, in a third and final part, I will argue that redistricting reform is possible, but not without a major rebuttal of the VRA as it is currently interpreted.
Tanner's bill, which includes a provision that would require states to create an bipartisan, independent redistricting commission modeled on the Arizona model created in by constitutional amendment in 2000 for the drawing of congressional districts. The commission would be composed of an equal number of Republicans and Democrats named by the majority and minority leaders of each state's legislatures who then name a chairman who would act as a tie-breaker. Each member of the commission cannot be an officer holder, a staff member or officer in a political party and cannot run for office in the districts the commission will draw--thus they have to wait 10 years to run for office.
All of this structure is well and good, but it fails to account for challenges under the Voting Right Act. In 2002, the first plan put forward by Arizona's redistricting commission failed Justice Department review because the plan reduced by a couple of percentage points the number of Hispanics in a couple of districts. (See, for example, Rhonda Barnes' article in the Arizona State Law Journal, Redistricting in Arizona Under the Proposition 106 Provisions: Retrogression, Representation and Regret, (35 Ariz. St. L.J. 575 (2003) for more details). Essentially, the "retorgression" or reduction in the number of Hispanic voters in a couple of districts invalidated an otherwise legitimate and accepted plan.
The Voting Rights Act has done much to improve access to voting for minorities in this country, and the basic premise of the law remains sound and should be renewed next year. However, the problem with the VRA as it has been interpreted to include remedies for retrogression and vote dilution. Retrogression describes the result of reducing the number or percentage of minority voters in a district, particularly a majority minority district, exactly what happened in Arizona.
The logical fallacy of retrogression is that once a decision is made to create a majority minority district, you can't go back without running a legal gauntlet, the presumption of which is against the state. If a state, trying to comply with the dictates of the Voting Rights Act as currently interpreted, creates a majority minority district, it cannot undo the district, but under the doctrine of retrogression must continue, at a minimum, to maintain that district, even if it means drawing tortured district lines (which is what we are trying to avoid) in order to maintain the district as a majority minority district.
For example, state A has a population large enough for five U.S. representatives. The state is 45% white, 20% black, 30% Hispanic, and 5% other races. In order to satisfy the dictates of the Voting Rights Act, state A in 2000 created a majority black district, where 55% of the district is black and a majority Hispanic district, where 58% of the district is Hispanic. As a result of these district lines, the state's House delegation is made up of two white, one black, one Latino, and one Asian representatives. The black and Latino representatives serve in the black and Hispanic districts respectively.
In 2010, in response to the Tanner bill, State A creates an independent redistricting commission (IRC). The commission begins its work and follows the rules and regulations laid out by Congress and the Election Assistance Commission. Demographic and labor forces have dispersed the population of state A in various ways. An influx of Asians has entered the state and a large percentage of blacks have moved out. The population in State A today is 40% white, 15% black, 35% Hispanic, and 10% Asian. Using the criteria laid out in the Tanner bill, the independent commission submits a plan which contains five compact districts, two of which are majority white, one is majority Hispanic and the remaining two have no racial majority at all. Political scientists in the state believe three of the districts to be highly competitive, a fourth moderately competitive, and the fifth to be safely Democratic in nature. The IRC sends the plan to the legislature, which, very happy with the result of the IRC's work, adopts the plan on the first vote. Everyone is happy, right?
Not so fast, because of the reduction of the black population and the dispersal of that population group within the state, the black majority minority district no longer exists. The dispersal of the Hispanic population is such that while the Hispanic majority minority district still exists, only now with 52% Hispanic population. No elections have been held, but in the now requisite lawsuit, a federal district court rules that the state cannot reduce the percentage of Hispanic voters in the Hispanic district and cannot eliminate the black majority minority district. The court invalidates the plan and orders the sate and the IRC to come up with a new plan.
In order to satisfy the concerns of the VRA, a state is all but compelled to create majority minority districts when possible. While I disagree with the necessity, that is a policy decision left to the legislature. But the drawback is, once done, the state is chained to that idea, they cannot easily escape the bonds that such a policy decision creates.
The doctrine of retrogression prevents states from addressing both internal and external population shifts, that is people moving within the state and people moving in and out of the state. If the purpose of districting is to ensure, as close as possible, numeric equality between districts, then the states must be free to address those issues with the presumption of validity. Independent redistricting commissions must have the presumption of validity in their plans, if the process is properly followed, regardless of the outcome. Otherwise, these IRCs will constantly be bombarded with claims that this racial group or that racial group has been slighted because the number of minority voters has gone down.
The stated purpose of the Tanner bill is to insulate the redistricting process from partisan interference to the extent possible. But without freeing the IRCs of the retrogression restrictions imposed upon them, the IRCs will be hamstrung by the decisions of past redistricting efforts and unable to draw lines in a manner required by the Tanner bill, that is compact, contiguous, and within the confines of the VRA.
Next up: Vote Dilution.
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