[EL] VA legislative plans precleared

[Abigail Thernstrom]

	David --

	Oh, I agree.  If a federal law guaranteeing minority voters “the  
ability to elect the candidates of their choice” was still essential  
in 2003, Ashcroft was no guide. It provided no coherent legal  
standards to govern the preclearance process. It tried to solve one  
definitional problem (the unsettled meaning of the “effective exercise  
of the electoral franchise”) only to create others. When was an  
“influence” district influential? When did a white incumbent hold  
committee or other legislative power that was truly invaluable to  
black constituents? Etc.

	I do think Bob Bauer was right in pointing to one virtue of Ashcroft,  
however.  He said: "There is something there worth taking seriously,  
which is respect for politics — for ‘horse-trading’ and the like by  
those elected to do precisely that and to answer for it.”  In other  
words, the Court had said, in effect, let legislators be legislators.  
And let black legislators make the deals they see as politically  
beneficial to their constituents. In 1965, politics as usual in a  
state like Georgia could not be trusted, but the black establishment  
had been a partner in the state’s post-2000 redistricting process,

	I will read your own analysis of the case soon.  Thanks for citing.

	I haven't looked at the Virginia districts either, btw.  (-:

	Abby


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


On Jun 20, 2011, at 4:01 PM, David Becker wrote:

> 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).  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 | 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
>
> 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 | 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
>
>
> 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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