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Wednesday, June 28, 2006

Why Dems Are Really Screwed by the SCOTUS Redistricting Decision

Posted by DavidNYC

As you know by now, today the Supreme Court ruled that Tom DeLay's mid-decade redistricting scheme was mostly legal. The main holdings of the decision were:

• Mid-decade re-districting is permissible. Indeed, redistricting as often as humanly possible is probably legal.

• Redistricting on the basis of partisan gain is permissible. That means you can make 90% Dem-majority districts and 55% GOP-majority districts (or vice versa) to your heart's content.

• Some aspects of the Texas plan were unconstitutional because they violated the Voting Rights Act.

Those of you looking for a silver lining might point to #2 and say, "Well, at least we can screw the GOP, too." Indeed, some people are already ticking off a list of states where Dems could stick it to the Republicans: Illinois, California, New York, and so forth. Conceviably, if state legislatures show some spine, this kind of thing could happen.

But #3 is, perversely, what gets us. The Voting Rights Act is a very complex piece of legislation, and the litigation interpreting it is very, very hard to get a handle on. But at its core, the VRA says that redistricters must try to maximize the number of "majority-minority" districts - ie, districts where cohesive minorities constitute a sufficiently large bloc such that this group's will is likely to prevail at election time.

In essence, the VRA says you can't try to dilute minority voting strength by spreading minorities around. (Contrast this with what I wrote above - ie, that the SCOTUS today said you explicitly can try to dilute partisan voting strength.) As a WSJ article that came out before today's ruling was handed down put it:

But while Democrats have "made noises" about retaliating in their states, he says they will run into a problem peculiar to their own membership: Squeezing more Democratic-leaning districts from a map would almost certainly require splitting minority voters into multiple districts, undercutting their strength as a voting bloc. "They would really have to violate the Voting Rights Act to change the map," Mr. Carvin says.

Again I say, the jurisprudence on exactly how you're supposed to allocate minority voting strength under the VRA is a real jumble. So it may be possible to tweak things at the margins - it may be okay to reduce a 60% black district to 55%. But the bottom line is that if you have a state with, say, five majority-minority districts, you can't cut that number down to four to spread some of those Dem-voting minorities around. It would be pretty much flat-out unconstitutional. Of course, today it was the GOP which got nailed by the VRA, but in the future, it is much more likely to happen to our side.

So even if we want to go tit-for-tat with these jokers, our hands are, to a considerable extent, tied. I think there probably are changes out there we can make which don't violate the VRA, and make them we must. Unilateral disarmament is suicide. But even if state legislators do start caring about this kind of stuff, you can expect that further GOP efforts will outclass Dem plans in partisan audacity.

Posted at 05:19 PM in Redistricting | Technorati

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Comments

Obviously, the key won't be states like California, where the VRA really would constrain the drawing of more Democratic seats, but states like Ohio, Pennsylvania, and Florida, where the GOP has an overwhelming partisan edge in Congressional seats disproportionate to the current partisan situation in those states. If the GOP loses their edge in the state legislature in, lets say, Ohio, the VRA won't protect them.

BTW, even if the Democrats in Sacramento did violate the VRA, how many election cycles would go by before the courts would rule on the constitutionality of the new districts?

Posted by: Steven Smith at June 28, 2006 06:55 PM | Permalink | Edit Comment | Delete Comment

I posted this over a Dkos -- to little understanding but you never know which way things are going to ricochet. Who would have thought that the Voting Rights Act would not be reauthorized by now That is behind the thought I put down.

I think that this may endanger the Voting rights Act.

The Supreme Court said the map must be redrawn due to voting rights problems in CD 23. But once you start moving voters around there are potentially up to 4 districts --- CD 23, 28, 21 and 25 THAT may have to be redrawn because of deficiencies in minority representation as defined in the Voting Rights Act.

If there was no Voting Rights Act, SCOTUS would have no grounds to say that these maps must be redrawn.

What could happen depends upon whether the lines have to be redone before or after the 2006 election. So...depending upon when in the election cycle and who gets to redraw the map or maps, more Democrats may get elected. If Cuellar challenges Bonilla than Rodriguez may have a shot. I am no computer gerrymandering expert....but if Democrats could get back some seats, Republicans will decide to fight against that tooth and nail. Why spend your valuable time and energy trying to run the government well, when you can spend it trying to tear Dems to shreds?

If they think under this ruling that they can keep the map the same or even get rid of Democrat Lloyd Doggett then they will rush to redraw the lines now under the color of minority representation fairness. The Dems should fight them.

Redoing the lines could be done by a court or the legislature... but in which cycle? Would there be more Dems in the Texas legislature in the next session? Texas experts could try to answer that. Would a Texas court be friendly or fair to Dems.? I think not, but you don't know.

However...the big however is if the Republicans think that having to redraw the lines of these (potentially) 4 districts means that they will lose seats to the Democrats and it's after the 2006 election and they have an even narrower majority than they have now....THEN they will take the new maps to court and NOT REAUTHORIZE THE VOTING RIGHTS ACT.

That's why I think this could redound not to our benefit. This is what happens when you neglect for too long institutional and infrastructural needs of party building. We have only fought them inisolated places, wehad to fight them everywhere.

I still damn the the Democratic Texas State Senator who returned from Arizona while the Dems were trying to wait out the session so that they didn't have time to redraw the map. He was trying to maintain civility...hah...he was just gulled. But that is split milk..

The Republicans can almost always squeeze lemonade out of lemons.

http://www.offthekuff.com/...

Posted by: debcoop at June 28, 2006 07:29 PM | Permalink | Edit Comment | Delete Comment

The solution is not to try and continue "screw me, screw, you."

The solution is for each state to adopt a fair and non-partisan plan for drawing districts and at long last put an end to Eldridge Gerry"s madness.

Posted by: Ohanon at June 28, 2006 08:48 PM | Permalink | Edit Comment | Delete Comment

Concur with Ohanon and David at this point. This SCOTUS decision really affects the playing field; and we need to find a way out of mutually assured redistricting insanity. That way will likely involve a bipartisan appeal for "fair and non partisan" standards. Beware, however, of "abstract standards" that do nothing more than box Democrats into urban districts and leave the GOP with a slight edge over the rest of any given State. That is how we are getting whupped in OH, PA, MI and FL.

The SCOTUS seems to be giving State legislatures huge leeway here and at the same time using the VRA to hamstring Democrats in a perverse twist of its intent. (Now, White GOPer's actively create heavily minority districts to maintain, effectively, the same power White Democrats had pre-VRA.)

Jeffrey Toobin had a great New Yorker piece years ago on how this worked:

Key graf:

"The unholy alliance—between black Democrats and white Republicans—shaped redistricting during the eighties and nineties. Republicans recognized the value of concentrating black voters, who are reliable Democrats, in single districts, which are known in voting-rights parlance as “majority-minority.” As Gerald Hebert, a Democratic redistricting operative and former Justice Department lawyer, puts it, “What you had was the Republicans who were in charge for every redistricting cycle at the Justice Department—’81, ’91, ’01. And there was a kind of thinking in the eighties and in the early nineties that if you could create a majority-minority district anywhere in the state, regardless of how it looked and what its impact was on surrounding districts, then you simply had to do it. What ended up happening was that they went out of their way to divide and conquer the Democrats.” The real story of the Republican congressional landslide of 1994, many redistricting experts believe, is the disappearance of white Democratic congressmen, whose black constituents were largely absorbed into majority-minority districts."

Posted by: kid_oakland at June 29, 2006 12:25 AM | Permalink | Edit Comment | Delete Comment

I think the only answer that does not involve continued escalation is an interstate compact among all the states (or, the 43 states which have more than one seat in the House) to switch to non-partisan, Iowa-style districting plans.

Otherwise, if blue states adopt such plans while red states don't, we put Congress further out of our reach. I refuse to play that way.

And Hebert is, of course, exactly right. He was one of the lead lawyers in the LULAC case (and, as it happens, a former prof of mine).

Posted by: DavidNYC at June 29, 2006 01:06 AM | Permalink | Edit Comment | Delete Comment

Having been involved in actual redistricting, I know that many people have a very deep misunderstanding of the Voting Rights Act and it's requirements. READ IT! It does not require the creation of majority-minority districts as a general rule. In fact, the only time such districts may be required to be created is in jurisdictions that have been proven to violate the voting rights of a legally identified and recognized class of persons (a protected class). In those instances, a jurisdiction may be required to provide protected classes that have been historically or institutionally discriminated against in their voting rights with voting districts that may bolster their ability to vote. However, the VRA also specifically refuses to guarantee that any class, regardless of majority or minority status, has a right to be represented by a member of their own class. Contrary to popular belief among many - liberal and conservative, politician and layman - no racial or ethnic group is automatically a protected class. For example, a black minority anywhere in the US is not automatically a protected class. However, blacks in many southern states are protected classes because of proven, historical voting rights violations in those jurisdictions. Since Texas is one of several states with that proven history, it is required by the VRA to have its redistricting approved by the federal Department of Justice to conform with the VRA. That was a basis for the Texas case by the Dems and a basis for the finding regarding the one latino district. (I'm finding it hard to believe that only one district was affected by the Republican redistricting on this basis.)

I'm unaware of any state outside of the South that has been found to historically or institutionally discriminate against any class, racially or ethnically, of voters. So most state jurisdictions outside of the South do not have to created majority-minority districts or protect them. (This is why southern Republicants don't want the VRA to be extended; historically, they're the only ones who have been in violation of it.) In fact, the Supreme Court has found unconstitutional redistricting based on race or ethnicity to create majority-minority districts, though redistricting based on partisan behavior is constitutional. (See the two Supreme Court redistricting cases involving the NC-12 Congressional District in the '90s)

Back to the real topic at hand: redistricting. Redistrict the hell out of the Republicans. Why not? California redistricting in 2001 was actually done to be nice to California Republicans and avoid a nasty redistricting fight. ALL involved signed off on it, especially Republicans because they could (and should) have been screwed big time. That's what Republicans did elsewhere to Dems. But keep the VRA out of the discussion. It has nothing to do with it.

Posted by: phonatic at June 29, 2006 02:10 AM | Permalink | Edit Comment | Delete Comment

Thank you phonatic! I thought this whole post was not the greatest. It smacks of Democratic sky-is-falling rhetoric.

Pay closer attention to what Kennedy was actually saying yesterday everybody. If it was all about pack-and-crack, then maybe the VRA would be a curse in disguise. But to Kennedy, he was more interested in minorities electing a representative of THEIR choice. Which Bonilla obviously wasn't. So correct me if I'm wrong, but if Dems were to marginally split a minority district so that as to maximize partisan strength, there is a very good chance that the new district would still represent the choice of the minority constituents. I would certainly expect Dems to argue this in court, should it ever come up.

I'm not a lawyer, but I'd like to get all you lawyers out there opinions on this....namely, couldn't the Dems even argue that it is constitutional and lawful by the standards of the VRA to maximize THEIR partisan advantage because a Democratic house would represent the will of the VRA population?

Posted by: nada at June 29, 2006 10:51 AM | Permalink | Edit Comment | Delete Comment

"Reduction in electoral competition and voter turnout:

The most immediate and obvious effect of gerrymandering is for elections to become less competitive in all districts, particularly packed ones. As electoral margins of victory become significantly greater and politicians have safe seats, the incentive for meaningful campaigning is reduced. Similarly, voter turnout is likely to be adversely affected as the chance of influencing electoral results by voting becomes greatly reduced and, correspondingly, political campaigns are less likely to expend resources encouraging turnout.Gerrymandering also has significant effects on the representation received by voters in gerrymandered districts. Because gerrymandering is designed to increase the number of wasted votes among the electorate, the relative representation of particular groups can be drastically altered from their actual share of the voting population. This effect can significantly prevent a gerrymandered system from achieving proportional and descriptive representation, as the winners of elections are increasingly determined by who is drawing the districts rather than the preferences of the voters."
(Wikipedia)

To allow legislators to manipulate district lines for their own personal political gain or the gain of their party is contrary to the intent of democractic process. So, bravo to the supreme court for undermining justice and fairness and siding with a system recognized as disenfranchizing the public in favor of special interests, and giving the voters a severly limited base of choices.The SC basically said screw intent. The intent was that redistricting occur every 10 years on the census cycle.
A pathetic decision siding with political hacks and impacting competition, against the general public's best interests.
I believe we would be better off with a non-partisan system of redistricting, until then we can only hope the DNC will shift focus to gaining State Houses and Legislatures, otherwise....

Posted by: Predictor at June 29, 2006 12:54 PM | Permalink | Edit Comment | Delete Comment

A nonpartisan panel of judges drew the district lines in Minnesota in 2002 when the parties reached a stalemate. All things considered, it hasn't been a bad arrangement, particularly at the legislative level where some truly competitive districts were drafted. In 2002, I was less than pleased with the reconfiguration as the Republicans made tremendous gains, but two years later, the swing was just as fierce the other direction. In other words, the map appears to be working the way it's supposed to, allowing voters to choose their politicians rather than politicians choosing their voters, and forcing most legislators to keep in touch with their constituent interests lest they'll be voted out. Having seen this volatile climate for incumbents play out in my home state's legislature, I expect Congressional elections would be much more competitive cycle to cycle if the districts were drawn by nonpartisan panels. I don't see it happening any time soon, but who knows.

Posted by: Mark at June 29, 2006 02:53 PM | Permalink | Edit Comment | Delete Comment

Since the Supreme Court has ruled that Henry Bonilla’s district (TX-23) violates the Voting Rights Act since minority representation was diluted, Virginia voters should immediately march into court and demand that the redistricting in that state be declared in violation of VRA.

Blacks account for approximately a fifth of the population of Virginia, and since there are eleven seats, there ought to be two that they have at least some chance of winning. Bobby Scott does represent one such district (VA-3), an ameba-shaped monstrosity that includes Black neighborhoods in Richmond, Norfolk, Hampton and Newport News. In the 2000 census, this district was 56% Black.

During the 1990s, the Petersberg-centered district (VA-4), represented by Norm Sisisky was the closest thing to the second opportunity. It was 39% Black. When Sisisky died, Republican Randy Forbes was elected to replace him, defeating Louise Lucas, an African American woman, by a vote of 52%-48%. All facets of reapportionment in Virginia were controlled by Republicans and to ensure that Forbes was reelected, the map drawers reduced the percentage of Blacks in VA-4 from 39% to 33% without a peep from the Department of Justice. Because of this reduction and a bankroll of more than $1 million, no Democrat at all challenged Forbes in 2002.

Posted by: Vadranor at June 29, 2006 10:06 PM | Permalink | Edit Comment | Delete Comment

The Repubs currently control the NY State Senate so we cannot pull a Texas here, at least not yet. It is looking like a great year for Dems in NY but we must win the State Senate before we can even consider redrawing the NY Cong lines.

Posted by: John Mills at June 30, 2006 12:42 AM | Permalink | Edit Comment | Delete Comment

One of the sad things about adhering to the VRA re: redistricting for minority-majority districts is that creation of these minority-majority districts robs dem votes from adjacent districts.

The creation of VA-03 turned VA-01, VA-02, VA-04 & VA-07 much more republican. In an effort to create more representation for African-Americans the end result was creating more republican (and white controlled) seats.
I had a conversation with Cong Bobby Scott in 1995 regarding his opinion of having the Afram majority in his district reduced, he was more than willing to have his district "diluted" as he never had a problem winning his majority white House of Delegates and Senate seats, however, he felt his hands were tied by VRA sanctions and a Gop controlled process more than favorable to loading his district.
VA-03's Afram majority could be reduced as could VA-07(I wouldn't tamper with VA-02)with advantages given to VA-04.
Candidate Louise Lucas-D-Portsmouth was an underfunded and weak (and locally controversial)candidate who could not overcome RNC $$ support for the more popular Forbes, now Forbes is sitting without opposition as the 33% African-American population of this district is not enough to overcome the election of a white well-funded republican congressman.
Kilgore carried VA-04 by 1.37%, the more liberal Indy candidate got 2.05% keeping Kilgore under a 50% win here. There is no doubt that even taking VA-03 down to a 51% majority Afram would help in the 4th. Based on Virginia's large Afram population, a case could be made that they should be holding more than 1 seat in the Commonwealth.

Posted by: Predictor at June 30, 2006 01:38 PM | Permalink | Edit Comment | Delete Comment

"VA-03's Afram majority could be reduced as could VA-07(I wouldn't tamper with VA-02)with advantages given to VA-04."
re-write:
VA-03's Afram majority could be reduced and Afram areas from VA-07 could also be added to shore up the 4th, however, I wouldn't tamper with VA-02.

Posted by: Predictor at June 30, 2006 01:48 PM | Permalink | Edit Comment | Delete Comment