As Louisiana embarks on redistricting, the lack of familiarity with the decennial process and the law involved can create much confusion. Hence, some words of clarity can help to explain the likelihood the chambers’ current plans coming to fruition.
First, unlike with the strict requirement of population equality for Congressional districts, that they have equiproportional populations “as nearly as is practicable” (stemming from Wesberry v. Sanders), making the courts very leery of any deviation in district populations, the standard for state and local districts has been of substantial equality, where there is “substantially equal state legislative representation” (from Reynolds v. Sims). In fact, the U.S. Supreme Court, in a series of cases since 1964, never has set down a hard-and-fast rule on acceptable population deviation but has created a locus of around 10 percent, with extenuating circumstances allowing for even greater deviations to be upheld and lesser ones overturned.
Louisiana lawmakers set an internal target of five percent. However, legally it could go as high as 10 percent, and higher still depending upon issues such as achieving compactness, respecting municipal boundaries, preserving cores of prior districts, avoiding contests between incumbent representatives, and providing representation to political subdivisions. While it’s likely the five percent standard will be enforced during the process, there is no legal reason that it must be.
Second, suggestions that some kind of derivation of voting strength be used instead of population count have no history as use for drawing districts and no legal pedigree. The question concerns drawing boundaries to create majority-minority districts where social science research suggests that blacks are less likely to register to vote and to vote than whites, and that voting age populations of blacks proportionally are lower than among all blacks than whites because a greater proportion of black populations typically are younger.
Therefore, for example, in a district where 60 percent of the population is black, only 55 percent of the electorate that turns out to vote is black, and drawing districts like this could be termed an attempt to dilute black voting forbidden by the Voting Rights Act. But this interpretation runs counter to the language of the Act and subsequent court decisions that promulgate that there is an affirmative right to the franchise, but not one to vote. Thus, there is no requirement for the state to draw districts to maximize black voting turnout (if some kind of justiciable standard could even exist to determine that, echoing Davis v. Bandemer), only that it draws districts with black majorities, where legally practicable, whose proportion of all districts echo roughly the state’s proportion of black population.
Third, this from the Voting Rights Act applies only to select states and other jurisdictions – to Louisiana in its entirety. The point is to avoid retrogression – an obvious dilution of black voting strength – unless is present compelling reasons related to those dealing with deviations from equiproportionality. That means, if Louisiana has a black population of 32.8 percent, you don’t have to have (rounded) 105 x .328 = 34 House seats or (rounded) 39 x .328 = 13 Senate seats with black majorities. As long as no intent appears to discriminate on the basis of race, it doesn’t matter how many seats there are – which includes the drawing of boundaries intentionally to maximize creation of majority-minority districts as the Supreme Court elucidated in Louisiana’s own U.S. v. Hays.
While the argument that the closer the number of black majority districts compared to all is to the proportion of black population in the state might lead to fewer legal problems is not incorrect, that does not mean that any plan with more majority-minority districts than any other, if both are below the proportional number, automatically is better or to be preferred. To draw on that basis in fact runs the risk of the unconstitutional practice of drawing predominantly on the basis of race.
Finally, these kinds of considerations are crucial in the process because they are checked by the U.S. Department of Justice or courts through a procedure known as “preclearance,” where states under the VRA must submit any changes to existing electoral administration before they may be ratified into law or regulation. Whatever Louisiana comes up with for its Legislature must get this clearance (within 60 days after submission if by Justice). However, a different part of the VRA than this Section 5, Section 2, allows subsequent legal challenges. In other words, successful preclearance does not immunize plans from legal action. As such, sometime in June when the state should be getting notification of successful preclearance, those dissatisfied with the plan still may try to block implementation of the plan – if not for this election cycle, then future ones.
As presently construed, the plans for both chambers emanating from them appear within judicial and VRA standards. The House plan would increase to 29 M/M districts from 27 and the Senate would one would go from 10 to 11. Of some concern may be that Justice under Pres. Barack Obama already has demonstrated an affinity to politicize the voting administration process. While a Section 2 suit would allow fall elections to proceed, failure to obtain Section 5 preclearance would cause chaos. Still, given that Justice rarely has objected to preclearance for a couple of decades now, the plans proposed by chamber leaders look worthy to pursue.
Posted by Jeff Sadow at 08:05