[EL] VA legislative plans precleared

Mon Jun 20 13:01:16 PDT 2011

Abby,

I appreciate your interpretation of the Georgia v. Ashcroft decision, though I think it's fair to say that Justice O'Connor's opinion was not nearly so clear about what a "coalition district" was, and how a new "coalition district" should be weighed against an existing "ability-to-elect" district.  (I won't rehash all the facts of the case, of which Abby cited a few, but black support for the plans was not nearly as unanimous as some suggest.  If anyone is interested, you can read my analysis of the case here<http://www.law.berkeley.edu/files/ch_9_becker_3-9-07.pdf>).  In fact, if anything, I think she was clear that a "coalition district" was NOT an "ability-to-elect" district - i.e., the minority candidate of choice was not getting elected.  However, in the hypothetical you seem to be posing (and please correct me if I'm wrong), the minority candidate of choice IS getting elected, albeit in a district where they form less than the majority, requiring some crossover voting.  Again, the key inquiry is not whether the percentage has been lowered (though that may be relevant), but whether the underlying ability-to-elect existed in the benchmark, and whether it's been diminished in the new plan.

And also for the record, I haven't looked at the Virginia districts, so I have no opinion on whether the ability-to-elect was diminished, but I agree with Abby's point (I and I hope I'm not misstating it) that a mere reduction of minority percentage in a district doesn't, in and of itself, mean that minority voters' ability-to-elect has been reduced.

David

David J. Becker
Project Director, Election Initiatives
The Pew Center on the States
901 E Street NW | 10th Floor
Washington, DC  20004
p: 202.552.2136 | f: 202.552.2299
e: dbecker at pewtrusts.org<mailto:dbecker at pewtrusts.org> | www.pewtrusts.org<http://www.pewtrusts.org/>

From: Abigail Thernstrom [mailto:thernstr at fas.harvard.edu]
Sent: Monday, June 20, 2011 3:44 PM
To: David Becker
Cc: Michael McDonald; 'Election Law'
Subject: Re: [EL] VA legislative plans precleared

            Okay, not quite a dark black line, but the main story is the VRARA's rejection of Ashcroft, which had sanctioned coalition districts in which the percentage of black voters had been reduced, although not below 50 percent.. As you will remember, ten out of eleven black state senators had supported the map submitted to the DC dist ct, along with thirty-three out of thirty-four black representatives in the Georgia House. John Lewis, in testimony, also defended the state's decision. But while Justice O'Connor argued that states should have the flexibility to choose substantive over descriptive representation, the decision was deeply opposed by the civil rights community, and its opposition was apparent in the congressional hearings leading up to the 2006 statute.

            Dealing with the Ashcroft problem was the whole point of the language I quoted from the '06 statute and the recently issued guidelines.  And my only objection to Mike's comment was the suggestion that it was noteworthy that DOJ had precleared the VA plan even though the black percentage had been lowered in some majority black districts -- although not to the point of making them minority-black. Had VA drawn a map in which majority-black constituencies had become coalition districts, less than 50 percent minority --  that would have been worth a heads-up.

            Abby

Abigail Thernstrom
Vice-chair, U.S. Commission on Civil Rights
Adjunct Scholar, American Enterprise Institute
www.thernstrom.com<http://www.thernstrom.com>

On Jun 20, 2011, at 2:49 PM, David Becker wrote:

For the record, it's not accurate to state that "the VRARA ... [blocked the] possibility [of reducing black vote to under 50 percent].  Since at least the 90s, 50 percent has not been a black line rule in assessing ability to elect under Section 5.  While it's relevant to the analysis, and it may be more difficult to demonstrate ability to elect if percentages fall below 50, there are districts where the DOJ has not objected where the minority percentage in one or more of the significant measurements (VAP, CVAP, REG) has dipped below 50, so long as ability to elect has been maintained (usually through reliable and consistent crossover voting).  There were such districts in the 2001 Georgia statewide legislative plans, for instance.

David J. Becker
Project Director, Election Initiatives
The Pew Center on the States
901 E Street NW | 10th Floor
Washington, DC  20004
p: 202.552.2136 | f: 202.552.2299
e: dbecker at pewtrusts.org<mailto:dbecker at pewtrusts.org> | www.pewtrusts.org<http://www.pewtrusts.org>

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Abigail Thernstrom
Sent: Monday, June 20, 2011 1:46 PM
To: Michael McDonald
Cc: 'Election Law'
Subject: Re: [EL] VA legislative plans precleared

            Gee, Michael, I don't see the significance here.  Would be noteworthy
if DOJ had precleared districts in which the black vote had been
reduced to under 50 percent.  But of course the VRARA superceded
Ashcroft, blocking that possibility.  And the new guidelines, tracking
the 2006 statutory language, explicitly state: "Any change affecting
voting that has the purpose of or will have the effect of diminishing
the ability of any citizens of the United States on account of race,
color, or membership in a language minority group to elect their
preferred candidates of choice denies or abridges the right to vote
within the meaning of section 5."

            DOJ stuck to the letter of the revised statute and new regs.

            Sorry for the delay in answer; Just catching up on my email.

            Abby

Abigail Thernstrom
Vice-chair, U.S. Commission on Civil Rights
Adjunct Scholar, American Enterprise Institute
www.thernstrom.com<http://www.thernstrom.com>

On Jun 17, 2011, at 6:31 PM, Michael McDonald wrote:

Both Virginia legislative plans were pre-cleared this afternoon by
DOJ. This
is significant because the Democratic state Senate plan reduced the
African-American voting-age population of 3 voting rights districts
(but
kept them above 50%).

============
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

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