[EL] VA legislative plans precleared
Abigail Thernstrom
thernstr at fas.harvard.edu
Tue Jun 21 08:36:15 PDT 2011
Translation: Black incumbents thought they were in no danger with the
new map, and indeed, believed white Democrats would be aided by black
votes dispersed more widely.
Abby
Abigail Thernstrom
Vice-chair, U.S. Commission on Civil Rights
Adjunct Scholar, American Enterprise Institute
www.thernstrom.com
On Jun 20, 2011, at 7:56 PM, Chambers, Hank wrote:
> It is fair to say that the Virginia districts are all about
> politics, in the inoffensive sense of the word. That is, the
> districts were likely about the best that Democratic legislators
> thought they could get given that Democrats control the state Senate
> and Republicans control the House of Delegates and the
> Governorship. That arguably is borne out by the substantial voting
> support that African American legislators gave to the precleared
> districts.
>
> -Hank
>
> Henry L. Chambers, Jr.
> Professor of Law
> University of Richmond
> 28 Westhampton Way
> Richmond, VA 23173
> 804-289-8199
> ________________________________________
> From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu
> ] On Behalf Of Abigail Thernstrom [thernstr at fas.harvard.edu]
> Sent: Monday, June 20, 2011 6:08 PM
> To: David Becker
> Cc: 'Election Law'
> Subject: Re: [EL] VA legislative plans precleared
>
> 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<http://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<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
> > [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<mailto:mmcdon at gmu.edu> 4400 University
> Drive - 3F4
> http://elections.gmu.edu Fairfax, VA 22030-4444
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