Redistricting: Legal arguments complicate drawing the maps

Among elected officials and politicos, the conversation about California’s redistricting has focused on the Commission process, membership, staff, structure, possibly 50 outreach meetings, and one seemingly endless flowchart. However, the most important factors could be two provisions of the Voting Rights Act that are far off most people’s radar screen: Section 2 and Section 5.

Section 2 provides a broad prohibition on voting discrimination. A voting practice, including the drawing of district lines, is discriminatory if it provides minorities with less opportunity than other members of the electorate to participate in the electoral process and to elect representatives of their choice. District lines cannot be drawn so that densely populated minority communities are prevented from electing members of their subgroup. In California, Latinos have been the only minority group at the legislative level that have reached “majority-minority” status and merit consideration under Section 2. The 2010 census and particularly the calculation of Citizen Voting Age Population could extend this to African Americans in one or two districts.

Based on population estimates there are more than a dozen districts that have majority-minority status. Under Section 2, the Commission will need to be cognizant of these minority groups in these districts, and make sure that district lines do not reduce the voting power of these groups.

This isn’t to say that the state under Section 2 minority power is everything. The courts have been clear that a state or locality can follow traditional redistricting practices like keeping cities and counties together or creating geographically dense districts as long as those rules were not created to discriminate or to reduce a minority group’s voting rights. In short, minority voting power should be preserved within districts and within the entire state redistricting plans, but that does not have to come at the expense of the other rules.

Section 5 is similar in its intent, but it is specifically applied to several states and counties that have had a history of discrimination. Section 5 establishes preclearance requirements for certain states and counties, and anything done to change the mechanics of voting in these states and counties must be pre-cleared in DC. If a polling place moves across the street it must be pre-cleared. If a redistricting plan changes any district lines, the changes must be pre-cleared too.

In California there are four counties that fall under this requirement: Kings, Merced, Yuba and Monterey. Changes in district lines involving these counties will inevitably alter other surrounding districts. So, as a practical matter, obtaining pre-clearance for these four counties will have a considerable influence on the entire state plan.

Pre-clearance cannot be done based on a draft map – it must be done on the final maps that are to be approved by August 15th.  The pre-clearance takes 60 days, with a 60 day automatic extension.  And if pre-clearance is denied for just one of these counties, the entire state plan would be blocked. Surprisingly, the drafters of Propositions 11 and 20 didn’t create a process for the Commission to make changes after August 15th. If it was blocked, it appears that the courts would intervene and redraw until pre-clearance was granted.

In attempting to create districts that follow city and county lines, are geographically compact, and avoid the odd shape of some of the current seats, the Commission is going to have to pay special attention to the California counties that are subject to the Section 5 pre-clearance procedures. Looking specifically at Merced County, there is a Section 5 protected Congressional seat that has all of Merced, half of Stanislaus, and fingers that reach up to Stockton and down through Fresno. The Senate District hops over a mountain range with an appendage that grabs a base of Latinos in Monterey County. These districts are not only oddly shaped; they cut up big counties of San Joaquin and Monterey, making additional districts into odd contorted shapes. Balancing Proposition 11 guidelines and Federal Voting Right Act considerations in these areas will be difficult.

While the Voting Rights Act is not intentionally partisan, without Section 2 and 5 the legislature and local government would no longer have to bend over backwards to create minority, meaning more Democratic, seats. 

This is why a Republican led law firm in Sacramento is working to get a Section 5 bailout for Merced County, and why Republican-funded American Enterprise Institute is bringing a suit against Section 5 in Alabama. Former Senator Norm Coleman outlined the conservative view in a recent interview when he said that we should reconsider Section 5 of the Voting Right Act nationally.

Interestingly, this is the first time in the history of the Voting Rights Act that redistricting will be done with a Democratic president and Attorney General.  Initial guidelines released last week suggest a zealous enforcement of the law, likely in a way that will maximize benefits for Democrats.

Republicans may seek relief from some of these requirements and focus on the Commission rules that favor their candidates, while Democrats will keep aggressively protecting voting rights laws and will likely be filing suits if any minority populations have their numbers reduced.

These conflicts over redistricting rules and interpretation of the Voting Right Act will put complex legal issues at center stage of the redistricting process for the next seven months, and it will likely result in heated battles in the months after the plans are approved.

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