Does the South still practice vote denial and dilution based on issues of race and ethnicity? Part I: Race/Ethnicity and the redistricting dilemma

In my last blog, I ended by asking: does the South still practiced vote denial and dilution based on issues of race and ethnicity?   In other words, do the fact- and historical-based justifications adopted by the Supreme Court in 1966 upholding the Voting Rights Act of 1965 still apply today?  

The short answer is yes.  Race and ethnicity still play major roles in who votes in America and in shaping the impact of those votes.  And we do find some of the most extreme cases of this effect in those territories covered by Section Five of the VRA.  The long answer that explains the short answer gets very complicated very quickly, however.  

In 1966, when the Supreme Court decided South Carolina v. Katzenbach, the problem at hand was race-based vote denial.  Poll taxes; unfairly administered constitutional understanding, moral fitness, and literacy tests to register to vote; and overtly complicated registration procedures all excluded large numbers of minority voters from the polls.  In the decades that followed, negative court decisions, vehement executive orders, and extensive congressional revisions of the law forced recalcitrant Southern governments to open the polls to all eligible voters and to end their obstruction of minority voting rights.  The resulting reconstruction of southern political power structures brought on by minority voting was so profound that -- in the words of Sociologist Chandler Davidson and Political Scientist Bernard Grofman -- it constituted nothing less a “quiet revolution in the South.”

Vote denial was only part of the picture, however.  Just as prevalent, and in many ways more effective in their exclusionary intent, were electoral rules and procedures that diluted minority voting patterns.  The use of such vote-dilution techniques as at-large elections, majority vote requirements, and the creation of voting districts gerrymandered to submerge minority voters in a larger pool of white voters, had the effect of denying minority voters a valid voice in the electoral process.  Yes, they could vote, but so long as the majority population voted as a bloc and so long as facially-neutral rules and procedures submerged minority voters in a majority sea, those minority voters rarely saw their votes producing the results they desired.

In 1969, the Supreme Court took up these matters in Allen v. State Board of Elections.  The case’s core was a challenge to election law “reforms” enacted by Virginia and Mississippi, following passage of the VRA of 1965, which mandated the shift to at-large county elections.  Writing for the Court, Chief Justice Earl Warren held that Section 5 of the Voting Rights Act encompassed vote dilution as well as vote denial discriminations.  Invoking the one person-one vote requirement of Reynolds v Sims, Warren concluded: 

the right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot. . . . Voters who are members of a racial minority might well be in the majority in one district, but in a decided minority in the county as was whole.  This type of change could therefore nullify their ability to elect the candidate of their choice just as would prohibiting them from voting.

With this fact in mind, the Court rejected all efforts to read Section 5 narrowly:  “the Voting Rights Act was aimed at the subtle, as well as . . . obvious, state regulations which have the effect of denying citizens their right to vote because of their race.”  

By extending the coverage of the VRA to include vote dilution, the Court radically extended the VRA’s reach.  It also linked the issue of minority vote dilution to laws and precedents that had not originally been enacted or decided with race in mind.  In particular, Chief Justice Warren’s linking of the “one person, one vote” standard of the reapportionment cases (Gray v. Sanders [1963], Wesberry v. Sanders [1964], and Reynolds v. Sims [1964]) to the VRA’s prohibition of minority vote dilution significantly complicated the reapportionment process.  

As originally declared, the “one person, one vote” standard dealt only with protecting the value of an individual’s vote.  Vote dilution, however, involved the collective impact of election procedures on a racial group’s vote.  In fact, the most common form of race-based vote dilution, at-large elections, did not conflict on its face with the one person-one vote requirement.  As structured, at-large voting actually came very close to the abstract ideal behind one person-one vote -- every voter in a particular jurisdiction voted for or against every candidate running.  Under such regimes, considered one-on-one, a black voter had an equal chance to influence the election’s outcome as compared to a white voter under such regimes.  Even race-conscious gerrymandering specifically designed to submerge concentrated black communities into white majorities did not explicitly conflict with “one person, one vote” standard if the districts so created were of equal size.

Yet, because the Justices went beneath the surface of voter-dilution mechanisms, their ruling in Allen transformed the reapportionment process.  Suddenly reapportionment was not just about creating equal sized districts.  Now those drawing new legislative maps also would have to consider the impact that these new legislative districts would have on minority voting strength.  This new requirement placed the states in the difficult position of proving a negative: that their newly-drawn districts would not dilute the electoral ‘voice’ of minority voters.  By the end of the 1970s, the answer to this dilemma was found in the intentional creation of legislative districts in which the voters were primarily members of a minority group – the so-called “minority-majority”districts.  

Minority-majority districts raised two further problems, however.  The first was the convolutions that legislators had to adopt in drawing their legislative maps to pull together enough minority voters from physically-distant communities to create a minority-majority distinct.  The second was determining the number of majority-minority districts necessary to assure that the minority vote was not diluted.  A collateral problem, interacting with the first and second problems, was the pressure that partisan political considerations put on the redistricting process (that is, the tendency of the majority party in power to adopt political gerrymanders either to strengthen their own electoral prospects or to weaken those of their opponents); although this problem was separate from those caused by the effort to create minority-majority districts, it nonetheless affected that process of district creation .

All these issues are present in the consolidated Texasredistricting cases being argued before the Supreme Court today.  Over the last decade, Texas’s population has increased by more than 20 percent, or about 4.2 million people.  Hispanics account for 2.8 million, or 86 percent, of this increase.   As a result of this growth, Texas was assigned four new congressional seats, giving it a total of 36.  The Texas Legislature’s proposed redistricting maps created only one new heavily Hispanic district out of the four, however.  Their reasons are largely political.  The Texas Legislature is controlled by Republicans; Texas Hispanics tend to vote Democratic.  On seeing the redistricting maps, Texas Latinos cried foul.  They argued that the proposed districts diluted Hispanic voting strength in violation of the VRA.  Texas, fearing that its maps would not be pre-cleared by the Justice Department, chose the statutory alternative of seeking pre-clearance from a three-judge court of the U.S. District Court for the District of Columbia.  Such court proceedings, however, tend to take more time than pre-clearance by the Justice Department.  With the 2012 election just around the corner, at the suggestion of the D. C. Court, a three-judge panel from the Western District of Texas was given the task of drawing ‘interim’ legislative maps for use in 2012.  These maps, in turn, took into account the rapid growth in Texas’s Hispanic population and created three of the four new districts with Hispanic majorities.  Texas then cried foul, arguing that the ‘interim’ maps should show more deference to the choices made by the state legislature.  In December 2011, the U.S. Supreme Court placed a stay on the ‘interim’ maps and held the whole matter over for today’s argument – after which, presumably, the Court will decide which map drawing approach is appropriate. 

As the Texas redistrict example makes clear, questions of intent and even of effect in minority vote dilution become quite complicated when the issue of vote dilution must interact with the tensions already existing among the individualistic “one person, one vote” requirement of the redistricting cases, the collective imperatives behind the VRA’s prohibition of minority vote dilution, and the dictates of partisan politics.  Were Texas Republicans’ actions aimed at Hispanics as minority voters or as Democrats?  If the former, then the Texas Legislature’s actions clearly were a case of minority vote dilution forbidden by the VRA.  If the latter, then one can make the case that this is nothing more than a partisan political gerrymander – something that the Supreme Court has never declared unconstitutional. Then there is the question of whether intent matters at all when it comes to minority vote dilution. How the Justices answer these questions will largely determine how they rule in the Texas redistricting case – and incidentally, shape similar battles in states across the Union (if not in this year, then in ten years).