[EL] message from Michelle Davis re: coalition districts"

[Elmendorf, Christopher]

Another, somewhat more legally speculative tack would be to focus in the first instance on the behavior and motivations (or stereotypes) of majority-group voters and/or legislators.  If it can be shown, at least to a "significant likelihood," that majority-group voters or legislators acted on the basis of racial biases, then one could plausibly argue for a relaxation of the other Gingles threshold conditions (here, specifically, the requirement of strong political cohesion among the minority community/communities, which as Michael points out may be hard to establish).  Note in this regard that Justice Kennedy in Bartlett pointedly reserved the question of whether vote-dilution plaintiffs who cannot satisfy the formal "majority-minority remedial district" requirement may bring a Section 2 claim if they make a showing of "intentional discrimination against a racial minority." 129 S.Ct. 1231, 1246.

For a rethinking of Section 2 in terms of subjective discrimination by voters as well as conventional state actors, see my paper "Revitalizing Section 2," forthcoming in the U. Pa. L. Rev, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1822642.    

--Chris

Christopher S. Elmendorf
Professor of Law
University of California at Davis
400 Mrak Hall Drive
Davis, CA 95616
tel: 530.752.5756
________________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Michael McDonald [mmcdon at gmu.edu]
Sent: Wednesday, July 20, 2011 10:24 AM
To: 'Davis, Michelle'; law-election at uci.edu
Subject: Re: [EL] message from Michelle Davis re: coalition districts"

A difficulty in establishing a Section 2 claim will likely lie in the racial
bloc voting analyses to demonstrate voting cohesion.

There are two potential scenarios I can imagine where there are three or
more minority communities where none have sufficient population for a
district in their own right.

First case, there are small, distinct concentrated minority communities.
Here, if there are near 100% minority percentages within a few precincts, it
may be possible to use homogeneous precinct analysis to determine the level
of cohesion. However, other statistical tests will likely fail to provide
meaningful statistics because there are too few data points to generalize
from. This will be your strongest case, since at least homogenous precinct
analysis will provide meaningful statistics to build an argument for voting
cohesion.

Second case, the minority communities are dispersed across several
precincts. In this scenario, there may be a few precincts in the 10 to 20
percentage point range of minority VAP.  Here, while there will be more
precincts to analyze, statistical tests will likely fail to produce
meaningful statistics since there will not be enough variation in the
minority percentage across the precincts.

An expert may try to argue that they aggregated all the minority communities
together and performed the requisite statistical analyses on the combined
data, but the strongest claim will be where separate analyses can be
performed for each minority group.  Imagine the case where the largest
minority community has strong patterns of racial bloc voting and the
smallest does not. A racial bloc voting analyses on the combined minority
communities will (essentially) average the racial bloc voting patterns for
all the communities, where the patterns of the largest community will
predominate.

I can imagine some scenarios where you may be able to generate meaningful
statistics to establish cohesion, such as there being three large minority
communities and the goal is to create an additional district out of
unassigned fragments. But generally, without knowing the specifics of this
situation, I believe that you will need to be prepared to defend these
analyses in court from the criticism that at least one of the three minority
communities is too small to reliably analyze.

============
Dr. Michael P. McDonald
Associate Professor, George Mason University
Non-Resident Senior Fellow, Brookings Institution

                             Mailing address:
(o) 703-993-4191             George Mason University
(f) 703-993-1399             Dept. of Public and International Affairs
mmcdon at gmu.edu               4400 University Drive - 3F4
http://elections.gmu.edu     Fairfax, VA 22030-4444

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick
Hasen
Sent: Wednesday, July 20, 2011 12:54 PM
To: Davis, Michelle; law-election at UCI.EDU
Subject: [EL] message from Michelle Davis re: coalition districts"

On 7/20/2011 9:49 AM, Davis, Michelle wrote:


Dear Colleagues,

As you know the Supreme Court briefly discussed “coalition districts” in
Bartlett, but have any lower courts considered coalition districts that are
made up of more than two minority groups? If there hasn’t been any court
test of this, what are your thoughts on the whether any successful section 2
claim can be made on behalf of a coalition district whether its made up of 2
or more minority groups. Could the totality of circumstances convince a
court to recognize a coalition district?




Michelle L. Davis
Senior Policy Analyst; Redistricting, Election Law
Maryland Department of Legislative Services
Office of the Executive Director
90 State Circle, Rm. 222
Annapolis, Md 21401




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