by Dick Hall-Sizemore

After the population issue of “one man, one vote,” the next priority the Virginia Redistricting Commission must consider in the drawing of new election districts is compliance with the federal Voting Rights Act.  This post will lay out the main principles that need to be considered.

I need to make this caveat clear up front:  I am not a lawyer and I am certainly not an expert in the field of election law or the Voting Rights Act.  Election law is a complex and, at times, Byzantine, area.  In addition to the statutory language, there is a large body of case law, some of it conflicting, that has developed around the Voting Rights Act.  The following discussion is a distillation of the main points presented to the Virginia Redistricting Commission in a report by its consultants and a joint memo from its Democratic and Republican attorneys entitled:  Voting Rights Act Legal Primer.

As the attorneys note:  “Section 2 [of the Voting Rights Act] prohibits what is referred to as ‘minority vote dilution’—the minimization or canceling out of minority voting strength.”  It is important to note that the “dilution” need not be deliberate for there to be a violation of Section 2.  It is sufficient that there be a diluting impact, intentional or not.  In summary, Section 2 requires that members of a minority group have a fair opportunity “to elect representatives of their choice.”

Gingles test

The Supreme Court has devised a framework, or a series of tests, to be used to determine when and how a state must draw district lines to avoid diluting the voting power of a protected minority group.  The primary framework is what is known as the Gingles tests:

(1) Is the minority group “sufficiently large and geographically compact
to constitute a majority” in a single-member district?
(2) Is the minority group “politically cohesive?”
(3) Does the white majority vote “sufficiently as a bloc to enable it—in
the absence of special circumstances…—usually to defeat the
minority’s preferred candidate?

If the answer to any of these questions is “No”, then Section 2 does not require the state to create a majority-minority district.

Racially polarized voting

The second and third Gingles questions, taken together, are generally referred to as “racially polarized voting”.  To help avoid Section 2 challenges and adverse court decisions, states often conduct a racially polarized voting analysis.  The Commission contracted with Maxwell Palmer of the Boston University faculty and Benjamin Schneer, from the Harvard Kennedy School, to conduct such an analysis.

In their report, Palmer and Schneer define racially polarized voting as “the majority group and a minority group [voting] differently.”  To identify racially polarized voting, two questions need to be answered;  “First, is each group of interest cohesive in their voting behavior?  To determine this, we identify whether clear majorities of a minority group support the same candidate….Second, conditional on the existence of a candidate of choice for Minority voters, do White voters support or oppose this candidate and to what extent are they cohesive in doing so?”

Following is their summary of their findings:

“We find that while there is evidence of racially polarized voting in Virginia at the state level, there is significant variation in the level of polarization, including geographic areas where voting is not polarized. Minority voters, including African American, Hispanic, and Asian voters, vote cohesively for Democratic candidates. On the other hand, support for Democratic candidates by White voters varies across the state. Areas with no or very low levels of racially polarized voting include much of Northern Virginia and parts of Central Virginia and Hampton Roads.”

The remainder of the report consists of data identifying specific areas that have exhibited racially polarized voting, which can be “useful when drawing minority opportunity districts.”

Proportionality

In addition to the Gingles tests, there is one other general test applicable to redistricting with regard to Section 2.  As the Commission’s attorneys noted, “The court must still determine whether, under the ‘totality of circumstances,’ the minority group has less opportunity than whites to participate in the political process and to elect representatives of its choice.”  They went on to note that one factor is particularly important in deciding the answer to that question:  “the ‘proportinality’ , or lack thereof, between the number of majority-minority districts and the minority’s share of the state’s relevant population….Section 2 does not mandate that a state create the maximum possible number of manority-minority districts.”

How Much of a Majority?

Even with these various tests, there are always lots of questions.  One such question was “What constitutes a majority?”  The Supreme Court held “that in order to satisfy the first Gingles factor, a minority group must constitute more than 50 percent of the voting-age population in a proposed majority-minority district.”  How much more than 50 percent?  The answer:  it depends.  Such factors as the cohesiveness of minority voters, the cohesiveness of white voters, and voter turnout all need to be factored in.  The percentage of minority voters needed to satisfy the Gingles tests could vary from district to district.

Conversely, a state must be careful not to construct a district with a population of minority voters higher than needed to provide the minority “a practical opportunity to elect the candidate of its choice.”  In such a case, it could be found guilty of packing a majority-minority district.

Retrogression

Another issue that is likely to become a factor is “retrogression.”  This concept refers to the reduction of the number of mandatory-minority districts during the redistricting process.  The Voting Rights Act originally prohibited retrogression, but that provision was one of those struck down by the Supreme Court several years ago.  Nevertheless, it is a politically sensitive issue.

The key question in considering retrogression is: Reduction from what?  To illustrate, assume that, after the 2011 redistricting, there were five majority-minority districts created.  However, over the course of the ensuing decade, population growth and movement resulted in the minority group no longer constituting more than 50 percent of the population in one of those districts and the Gingles test no longer indicated that the district should be a majority-minority one.  For retrogression purposes, should the Commission consider the make-up of that district in 2011 or its make-up based on the 2020 census? Both sets of the Commission’s attorneys said that the 2020 census data should be the basis of measurement.  Therefore, a new plan with four majority-minority districts would not constitute retrogression.

In a forewarning of possible tension, Sen. Mamie Locke (D-Hampton) declared that this talk of retrogression greatly concerned her and served notice that she would not support any plan that constituted retrogression.  It was not clear whether she was using the 2011 plan or the 2020 census data as her base for determining retrogression.

Influence Districts

As if the questions swirling around majority-minority districts were not enough, there are issues regarding areas in which a majority-minority district cannot be created, but the minority constitutes a large enough bloc to “influence the politics of the district in some way or to influence the representatives that will ultimately be elected from the district.”

There are two types of such “influence” districts:  cross-over and coalition.  A cross-over district is one in which a significant number of white voters are supporting the minority community’s preferred candidate.  A prime example would be Virginia’s Third Congressional District, which has a White majority and which Bobby Scott, a Black legislator, has represented for almost 20 years.  A coalition district is one in which two minorities, when combined, would constitute a majority.  An example would be a district in which 40 percent of the voting age population were Black and 15 percent were Hispanic, resulting in a district in which the minority population constituted 55 percent of the voting age population.

This was the one area in which the attorneys were not in agreement.  Both sets did agree that Section 2 permitted the creation of cross-over districts, but did not require a state to do so.  However, they diverged on the issue of coalition districts.

The Democratic attorney contended that, in a geographic area, in which 40 percent of the voting age population was Black and 15 percent were Hispanic, if an analysis revealed racially polarized voting, “then the Commission is legally required to draw such a district to avoid violating Section 2.” (Emphasis added)

Not so, countered the Republican attorney.  His position was that “if a single racial category is less than 50%, then Section 2 does not require that district to be drawn, even if racially polarized voting exists.  While the Commission can certainly choose to draw a district like this, it is not required to do so by Section 2 and thus cannot allow race to drive the decision making to create a 55% minority district that involves coalitions among minority groups.”

There was a motion to instruct the map drawers to make a conscious effort to create coalition districts where feasible.  Regarding that motion, the Republican attorney warned that, by instructing the map drawers to use race as a criteria in this manner, the Commission would be inviting litigation under the 14^th Amendment.    The voting on what instructions to give the map drawers on this issue was inconclusive and thus put off to a later meeting.

What’s Next

The map drawers have presented a set of statewide maps to the Commission.   Those maps were accompanied by data on the racial makeup of each district.  In describing the districts they had drawn. It was obvious that the map drawers had attempted to draw majority-minority districts where they were obviously called for.  However, that data was for the entire population.  Voting Rights Act criteria are related to voting age population.

After all the election data is loaded into their computers, along with the voting age populations, the Commission needs to decide on their guidance to the map drawers regarding creating districts that will satisfy the Voting Rights Act requirements.

At some point, the Commission will add the political factors, i.e. voting patterns and incumbent addresses into the mix.

The resulting maps will likely look considerably different than they do now.

My Soapbox

I was skeptical of this process from the beginning, specifically how the Commission was constituted, with a super majority of legislators needed to approve any plan.  That skepticism may prove in the end to have been justified, but, so far, I have been favorably impressed with the whole process.

The biggest difference and advantage, of course, has been transparency.  Every meeting is open to the public and members are prohibited from communicating with the attorneys and map drawers separately from the other Commission members.  Not only is every meeting open to the public, but they are recorded and citizens can watch the videos at times that suit them.

Every map that is under consideration by the Commission is loaded onto the Commission’s web page and is available to citizens, while it is being discussed.  Furthermore, citizens have the capability to enter comments on the maps, regarding general topics or specific district lines.

The Commission is making a conscious effort to solicit public input.  Such input has already influenced some decisions.

The Republican and Democratic co-chairs seem to be working together smoothly.

Frankly, I was expecting a lot of clashing between the two sets of attorneys.  Instead, with the exception of the issue of coalition districts discussed above, the attorneys have been in agreement.  Sometimes, they are obviously searching for position statements that accommodate the perspectives of both sides and that is impressive.

All the Commission members seem serious about what they are about and they are putting in a great deal of time on this endeavor.  And, as they get closer to crunch time, they will be putting in more time.

All that being said, as they get down to actually deciding specific district lines, I expect there will be more tension and more sparks will fly.  That has already begun to happen to some extent.