Virginia-Congressional-map-2Passed in 1964 the Civil Rights act, among other things, aimed to help minority communities (particularly black) elect representatives of their own choice. Following the Civil Rights Act the Voting Rights Act was passed in 1965. The Voting Rights Act created a population formula for when a majority-minority Congressional or legislative district must be created.  Since the law’s initial passage a number of court rulings have sought to clarify any vague areas of the law (continually repassed).  Sections II and V give the federal government enforcement mechanisms to ensure state compliance.

But Section V is in the dustbin of history, eliminated by the Supreme Court in 2013.  Section II puts the onus on the federal government to prove a map is discriminatory as opposed to Section V where certain states and localities had to prove their maps met federal requirements (pre-clearance).  This combined with massive GOP victories in 2010 that saw numerous states pass GOP friendly maps has fueled the feeling among many minorities and Democrats that these maps violate the VRA for being created under racial premises.  But maps created under racial premises seems to be what the VRA seeks to have happen.

A number of lawsuits have made their way through the courts regarding racially gerrymandered maps.  The earliest was a lawsuit out of Florida in late 2013.  The lawsuit led a district judge to rule Florida’s map unconstitutional but a slightly tweaked map was approved under pressure from the upcoming 2014 elections.  Ironically, in this scenario, the Congressional black representation wanted to keep the current map while the state’s Democratic apparatus wants a revised map that put one or two more GOP districts in play y splitting the black vote.  The lawsuit is pending before the Florida Supreme Court.

Many minorities and Democrats believe Virginia is the perfect representation of redistricting gone to far.  The state twice went for Obama, has two Democratic Senators and a Democratic Governor.  The GOP controls the legislature.  When the GOP passed a redistricting map in 2011 they controlled the Governor’s mansion.  The current Congressional delegation of the state is 8R-3D and Democrats argue this is not representative of a purple state (definitely blue leaning in statewide races).  In October a federal panel struck down the state’s map and ordered the legislature to create a new map by April 1st creating the potential for the Republican 2nd, 4th and 7th districts to be made more competitive. However, Virginia’s election results have had significant variation.  While no Congressional member won by less than 16 points in 2014, Senator Mark Warner won by less than 1% at the same time.  Governor Terry McAuliffe won his Gubernatorial bid by less than 3% in 2013.  Thus, many of the map’s proponents argue that significant electoral variations have far more to do with candidates and turnout than the map itself.

Many of the above cases rulings may hinge on Alabama’s case that is before the Supreme Court.  In Alabama Black Legislative Caucus vs. Alabama, minorities contend that Republican officials created a map that packed blacks into districts that minimized their influence elsewhere.  The Democratic Party and black officials argue this is a violation of the VRA and is racial gerrymandering.  In November 2014 when the court heard the argument many of the court’s right leaning justices expressed skepticism and confusion over the plaintiffs arguments. The NYT’s notes “Justice Antonin Scalia told Richard Pildes, an attorney representing the Alabama Democratic Caucus, that he was making the same argument “the other side used to be making” when the demand then was for districts that could be won by minorities.”  Not surprisingly, liberal justice Elena Kagen came out and said she thought the map violated federal law (but of course she does).

This in essence is the contradiction the CRA and VRA create.  On the one hand the laws call for states to create maps that ensure maximum racial representation but not to do it based on race.  States have struggled to grapple with such requirements and partisan desires have entered the mix.  Some GOP arguments, particularly relevant to the South, have centered on the fact that race and partisanship are strongly intertwined and packing minorities in districts is the equivalent of packing Democrats into safe districts. In the past the Supreme Court has looked favorably at partisan map making. Democrats and minorities have threatened similar lawsuits in GOP controlled Ohio and Pennsylvania.  However, in those states, Congressional turnover has been much higher leading to stronger arguments for race and politics being less intertwined.

Perhaps the Supreme Court may fall on the side of state’s rights.  During redistricting disputes under the Robert’s Court the court has always sided with states over federal rulings.  In TX and WV the Supreme Court found that judges had overstepped their bounds and could not dictate to state lawmakers what state maps should resemble.  If the Supreme Court rules in a similar fashion in Alabama it could make the Florida and Virginia GOP’s arguments that much stronger.

Ultimately, minority and Democratic disputes with state maps, particularly in Virginia and Alabama, are a product of the Civil Rights and Voting Rights Act.  The laws aimed to increase minority representation (something that has occurred) by maximizing their representation in certain parts of the state.  But the downside was it limited their influence elsewhere.  Further, the laws created institutionalized racial map making.

When the laws were passed Democrats loved it because it allowed them to create majority-minority districts in strongly GOP Midwestern states while the party also dominated the white South.  Now, with the white South solidly Republican, Democrats need to eat into the GOP’s Southern and Midwestern Congressional delegation by allowing minority influence to be expanded as opposed to condensed.  However, not all Democrats and black members are on board with racially themed lawsuits aimed at undoing state maps. In Florida, Congresswomen Corrine Brown is opposed to having her district changed.  In Pennsylvania, black Congressional representation is also opposed to a lawsuit on racial grounds.

Thus, political and racial divisions exist even among Democrats.  Regardless, in both politics and public policy it is clear the CRA and VRA create a puzzling contradiction.

 

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