Redistricting Criteria: The Voting Rights Act
The Voting Rights Act
The Voting Rights Act is an important federal redistricting requirement that ensures our representatives reflect America's racial and ethnic diversity. It enjoys overwhelming bipartisan congressional support. The U.S. Department of Justice and the NAACP Legal Defense Fund's Redrawing the Lines are excellent sources of information about the Voting Rights Act. Please bear in mind that the law regarding the Voting Rights Act is intricate and cannot possibly be covered in full depth here. Here are some of the important highlights.
Why have a Voting Rights Act?
Following the Civil War, the United States adopted three important amendments to the U.S. constitution. Among these is the 15th Amendment, which states that "right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude."
Immediately following the Civil War, the North occupied the South during a period known as Reconstruction. The North enforced the U.S. constitution, and as a result, many African-Americans were elected to state offices across the South. When the North withdrew its forces, White Southerners regained political power at first through violent intimidation during elections to repress African-American voting. Once in power, Whites amended their state constitutions and adopted election laws designed to prevent African-Americans from voting. Some of these rules may be familiar, such as the poll tax or discriminatory application of voter registration and literacy tests. A more obscure discriminatory device was racial gerrymandering.
The Voting Rights Act addressed all of these discriminatory election rules to ensure that our legislatures at all levels of government reflect the racial and ethnic diversity of the people they represent. Provisions of the Voting Rights Act have been amended and reauthorized several times to address changing legal and political environments. The most recent reauthorization for another twenty-five years passed by wide bipartisan margins in 2007 -- when Republicans controlled the U.S. Congress and George W. Bush was president. The Voting Rights Act is seen as one of the most successful pieces of legislation, being credited with the election of 9,000 African-Americans, 5,000 Latinos, and numerous Native Americans to local, state, and national offices.
The Voting Rights Act applies to redistricting to prevent states and localities from drawing districts that deny minorities a chance to elect a candidate of their choice. There are two important provisions. Section 2 applies nationally, and Section 5 applies only to certain "covered jurisdictions" which are located primarily in the South. These provisions are discussed in detail below. To understand how Section 2 and Section 5 apply, it is first important to understand how racial gerrymandering works.
What is Racial Gerrymandering?
To understand how to do a racial gerrymander, consider a hypothetical state with thirty-six people in it, which we will call Gerryland. Sixteen Gerrylanders are of a racial minority (represented by tan colored circles) and twenty are the racial majority. There are four districts to be drawn. (Thanks for Justin Levitt, formerly at the Brennan Center for Justice at New York University Law School, for these diagrams.)
Racially polarized voting is when all the minorities always vote for their preferred candidate and all the majorities always vote for their preferred candidate. If racially polarized voting exists, it is possible to gerrymander with brutal efficiency to ensure minorities have little or no representation in a four-seat legislature. There are two gerrymandering strategies, known as cracking and packing. The same strategies apply to both racial and partisan gerrymandering.
Cracking is when the minority community is fragmented into several districts, none of which have a majority of minorities. When there is racially polarized voting, minorities will be unable to elect a candidate of their choice to the legislature in any district. The cracking strategy in Gerryland might look something like this.
Stacking is when the minority community is concentrated into a small number of districts so that their votes are wasted in a district that their preferred candidate will win by an overwhelming margin. The packing strategy in Gerryland might look something like this, where the minority community is concentrated into one district.
In practice, things are more complicated than the simple Gerryland example. Communities do not fit into nice squares, so the federal courts are fairly lenient on what minorities districts may look like. Some of the ugliest looking district ducklings are beautiful swans in the eyes of the courts. For example, the Illinois 4th Congressional District drawn in the 2000's decade is often called the "earmuff" district for obvious reasons. The western portion of this district actually travels along the southbound lanes of Interstate 294! But, this district has a very important purpose. The district was initially created in the 1990s to elect the first Latino representative to Congress from the Midwest.
The Illinois 4th congressional district has its funny shape because there is an African-American community sandwiched between two Latino communities. The African-American community is represented by the 7th Congressional district, which is designed to elect an African-American candidate of choice. The 4th district was wrapped around the 7th district so that both African-American and Latino communities could have congressional representation.
When Must a Minority Opportunity District Be Draw?
The ideal district has just the right percentage of minorities to elect a minority candidate of choice. The percentage of minorities cannot be too low, lest cracking occurs, and cannot be too high, lest packing occurs. Determining the legally acceptable minority percentage requires the following steps:
First, perform a statistical analysis of election results to determine the degree of racially polarized voting.
Second, draw a district with enough minority population to elect a minority candidate of choice, given the statistical analysis.
The Supreme Court ruled in Bartlett v Strickland that in order for a district to be constitutionally required, minorities must constitute at least 50% of a minority opportunity district's voting-age population. Some have further interpreted this to mean that minorities must constitute at least 50% citizen voting-age population of a minority opportunity district.
Although to have a claim, plaintiffs must show that they can draw a 50% minority voting-age population district, a court may order the creation of a new district that does not have a population greater than 50% of the voting age population,
There are two important sections of the Voting Rights Act that apply to the creation of minority opportunity districts, Section 2 and Section 5.
Section 2 applies nationally. Essentially, Section 2 requires that if there is racially polarized voting and if a minority opportunity district can be drawn, then it must be drawn. (There is a further consideration, known as the "totality of the circumstances," which involves the history of past discrimination in the jurisdiction in question.)
Section 5 is no longer functionally operative following the Supreme Court's 2013 Shelby County v Holder ruling.
Section 5 used to apply only to "covered jurisdictions." Section 4 of the Voting Rights Act defined the covered jurisdictions as those that had a past history of using discriminatory voting laws and had low turnout in the 1964, 1968, and 1972 presidential elections. In Shelby County, the Supreme Court essentially said that there was no rational basis for these historical elections to govern which jurisdictions should be covered today, and invalidated the Section 4 coverage formula.
When Section 5 was operative, covered jurisdictions had to clear any electoral change -- from moving a polling place to redistricting -- with the Department of Justice or the District Court of DC before it can take effect. (The Department of Justice was the overwhelming pathway of choice.) This federal oversight was intended to ensure that a change does not have a discriminatory effect. In the context of redistricting, Section 5 required that the number of minority opportunity districts cannot decrease during redistricting. This is called retrogression.
Section 5 could be reinvigorated if the federal government adopts a new Section 4 coverage formula. Some states, such as California and Florida, have adopted amendments to their state constitutions that have language similar in nature to Section 5, and thus require similar protections for districts in their states that used to exist in federal law.
What Is Required in Practice
In practice, Section 2 essentially requires that at least the same number of minority opportunity districts in a previous redistricting plan must be drawn in a new redistricting plan. There are two exceptions:
In areas where minority populations have grown, such as Latino communities in Texas, more minority opportunity districts may be required under Section 2. The Supreme Court has ruled that it is permissible for states and localities to draw such districts to avoid litigation.
In areas where minority populations have decreased, it may be impossible to draw a minority opportunity district. In this case, a minority opportunity district may not be required.
How and where minority opportunity districts must be drawn will not become clear until racial polarization analyses are conducted, districts are draw, and in certain circumstances, the courts review the evidence.
It is beyond the capabilities of most ordinary citizens -- and sometimes even redistricting authorities! -- to comply with all the intricacies of the Voting Rights Act. To provide clues as to whether or not your districts are in compliance, on the statistics sidebar on the righthand side of the DistrictBuilder plan editor, we typically report the number of districts with more than 50% minority voting-age population (VAP) in the plan used for the previous decade and the number of such districts in the plan you are drawing. Typically, you should have at least the same number in your plan as in the previous plan.
When Is There Too Much Consideration of Race or Ethnicity?
If a state or locality draws a district while considering race or ethnicity, then the jurisdiction must abide by the equal protection considerations of the 14th Amendment. The state or locality must provide a rational basis for drawing the district at its percentage of minority voting-age population. This typically involves an analysis of racial and ethnic voting patterns within the area a district is drawn in order to determine what percentage of minority population is needed to elect a candidate of their choice.
One size does not fit all, as patterns of racial and ethnic voting, and the willingness of white voters to support the minority candidate of choice, may vary. In the past decade, courts invalidated plans in states like Alabama, Texas, and Virginia for adding more minorities than needed to elect their candidate of choice. That is not to say that a district can't have more minorities than needed to elect a candidate of their choice. However, the reason for doing so has to be some basis other than race or ethnicity, such as following local county or locality boundaries.