I’m opting to leave the field to Michael Li on the bulk of this topic since he’s doing some ace coverage of redistricting as it goes through the courts. But there’s one point I’ll make for the time being that I think may bear some attention during all of this.
First things first, some backgorund reading. I think if you only want/need/are forced to read only one legal document on redistricting this year, it should be the San Antonio court’s explanation of how they came about their State House map: http://tinyurl.com/dysdbka.
What’s of particular interest to me in that document is how they treat minority coalition districts. Those type of districts have been falling out of legal favor as increasingly Republican judiciaries have chipped away at different aspects of the Voting Rights Act. As Michael Li offers in a backgrounder:
This issue lies perhaps at the crux of the dispute about whether more minority opportunity districts must be created under section 2 of the Voting Rights Act.
In Bartlett v. Strickland, the Supreme Court held that additional minority opportunity districts do not need to be created under section 2 of the Voting Rights Act until a minority group’s voting age population in a given region passes 50%. However, the Strickland case involved an area of the country (North Carolina) where at the time Anglos and African-Americans were the only two major ethnic groups. What the case left undecided is whether in a tri-ethnic society like Texas, African-Americans and Hispanics can be aggregated for purposes of the 50% threshold.
The plaintiffs contend that Fifth Circuit case law clearly allows such aggregation where, as they argue is the case in Texas, the two minority groups vote cohesively, at least in general elections.
The state argues that such coalition districts are merely a variant of the Anglo majority ‘minority influence districts’ it contends have been disfavored by courts and would inject politics into the redistricting process.
As the San Antonio court describes the State House map, however, they take issue with the word “create.” They do, however, leave intact districts such as HD149 and HD26 which were both points of dispute and where each district had been either re-sliced or fully eliminated in a manner that reduced the ability of minorities to have an impact on the outcome of the election. In each of those two particular districts, the demographic dynamics are either three or four distinct minority groups and each of the districts were drawn to be electorally competitive. HD54 in Killeen is similar in that it was drawn in a way that it is electorally competitive and there are essentially three demographic groups at work within that district.
The explanation offered by the court is that it did not “create” these districts. Instead, they explain, they looked at the 2001 version of the map (drawn by the GOP-controlled Legislative Redistricting Board), the 2011 legislatively passed map, and sought to repair the dispute by making those districts more compact and drawn in a way that did not undo their present minority coalition status. That’s not quite the same as “create”, but it’s a point that will be interesting to see how the Republican-controlled US Supreme Court handles that question.
The reason I think this has potential for something big is this: the Texas Attorney General is essentially crying foul whenever there is an unfavorable district that happens to be under 50% Anglo. The Voting Rights Act doesn’t necessarily require a minority district to be 50% African-American or Hispanic, but the reality is that African-American politicians are getting increasingly nervous as they see their districts have a higher total population of Hispanics despite their district still having a CVAP population that is close to 50% African-American. Hispanic districts are the toughest nut of them all, with citizenship leading to very different needs in how Hispanic districts in Dallas and Houston are composed, versus those in San Antonio or South Texas.
But the takeaway from all of this – to me, at least – is that we now live in a world where at least more and more urban areas are becoming increasingly integrated in terms of demographics. That leads us to a relatively new phenomenon. While there still exist concentrated clusters of individual demographic groups, we are seeing a critical mass develop where more multicultural areas are seen down to the Census block level. A case in point from southwest Harris County:
That’s the same standard color scheme used for all of the other demographic majority maps: red is majority Anglo; black is majority African-American; orange is majority Hispanic; green is majority Asian; and yellow is where there is no majority at all.
If the view in creating politically-driven districts is that you have to have 50% of something, then there’s an increasing amount of the world where we live in that this view ignores. What do you draw in Alief? What do you draw in Sharpstown? What do you draw in Sugar Land? What do you draw in Mission Bend?
To be sure, that’s not to suggest that the majority of America is like that now. Nor do I expect it to be over the course of this decade. But the phenomenon is seen in more and more locations where you have three or four distinct demographic groups defining a community of interest.
I’m not naive enough to think that this particular Supreme Court will go so far as to outline a protected status for minority-coalition areas such as these. But the San Antonio court’s logic offers an interesting possibility of how they may be able to defend themselves from the more partisan cross-currents that insist on these areas being drawn majority-something. It’s likely a smarter bet that the Supreme Court may strike down Section 5 (if not the VRA in its entirety) at some point this decade and leave everything up for partisan spoils. But even if it comes to that, I don’t see the issue of voting rights being legislated in some variety going away entirely.
All of this, of course, reminds me to get back on track mapping out the rest of the county down to the block level and maybe even get around to adding Fort Bend to the mix of that task. In the meantime, happy reading of the San Antonio court’s explanation. Here’s a sampling if you still need any convincing …
The dissent also wrongly alleges that the interim map “creates” coalition districts that are not required by the Voting Rights Act. Once again, the dissent misstates the Court’s approach to drawing the interim map. This Court has not made any merits determinations as to whether coalition districts are required under the Voting Rights Act. Rather, like the minority opportunity districts discussed above, when these districts were restored to their baseline configuration and population shifts were taken into account, these districts resulted quite naturally.
For example, House District 26, situated in Fort Bend County to the southwest of Houston, increased from 44 percent minority population to 60.6 percent minority in 2010. The image below shows that the enacted plan substantially reconfigured HD26 in a way that made it irregularly shaped. Evidence presented at trial indicates that this reconfiguration may have been an attempt by the State to intentionally dismantle an emerging minority district. As the images below demonstrate, the interim plan attempts to take this district back to its original configuration in the benchmark while making slight adjustments for population changes.
The dissent’s incorporation of the State’s bizarrely shaped House District 26, despite alleged constitutional violations, constitutes an improper merits determination regarding the validity of that claim. In contrast, the Court’s decision to return the challenged district to its original configuration is simply a method of preserving the status quo until the D.C. Court has made a preclearance determination.