[EL] VA legislative plans precleared
Gaddie, Ronald K.
rkgaddie at ou.edu
Tue Jun 21 10:12:51 PDT 2011
If simultaneous submission is the causal factor, the same circumstances prevailed in Louisiana's state house preclearance. The state went to DCDC and DOJ simultaneously, and in this case, the black legislative caucus did not support the map for lack of a 30th opportunity district (the baseline was 25, the map has 29).
DOJ approved the map yesterday.
Louisiana has never had a statewide assembly map precleared on the first try, as I recollect.
Keith
Ronald Keith Gaddie
Professor of Political Science
Editor, Social Science Quarterly
The University of Oklahoma
455 West Lindsey Street, Room 222
Norman, OK 73019-2001
Phone 405-325-4989
Fax 405-325-0718
E-mail: rkgaddie at ou.edu
http://faculty-staff.ou.edu/G/Ronald.K.Gaddie-1
http://socialsciencequarterly.org
________________________________________
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: Tuesday, June 21, 2011 11:54 AM
To: 'Election Law'
Subject: Re: [EL] VA legislative plans precleared
My initial e-mail was to let people know that DOJ had precleared a statewide
redistricting plan. Abigail was perplexed why I said approval of the three
Democratic-drawn Senate districts were significant. I apologize in that
should have provided more context than my brief e-mail. DOJ questioned me
specifically about those three districts. (As someone else pointed out, all
five African-American majority VAP districts were drawn with a lower
percentage, but DOJ appeared to have concerns about only those three
districts.) DOJ did *NOT* appear interested in the Republican-drawn House
plan during my questioning, despite that plan was the subject of my public
comment regarding an additional African-American majority VAP district that
I drew for Gov. McDonnell's advisory commission -- and was adopted as an
optional plan by that body -- and the House failed to create.
A few days ago, Rick linked to a posting by Christian Adams stating:
"Yesterday, Virginia’s state redistricting plan was approved by Eric
Holder’s Justice Department. Why? Because Virginia Attorney General Ken
Cuccinelli simultaneously sought approval from a federal court. The Voting
Rights Act gives covered states both options, and Cuccinelli chose both.
Smart move. His decision derailed preordained DOJ plans to engage in a wide
array of behind the scenes mischief in the administrative review of
Virginia’s house and senate plans."
http://pajamasmedia.com/tatler/2011/06/18/virginia-takes-eric-holder-for-a-r
ide-florida-about-to-learn-why/
Christian's analysis is far off-base. There is no evidence that AG
Cuccinelli seeking approval from the court changed DOJ's decision-making.
DOJ appeared concerned about the Democratic Senate map, not the Republican
House map. I gave DOJ a legally viable reason under the VRARA strengthened
"discriminatory purpose" language of Section 5 to oppose the House plan, but
they declined to do so. I find this "significant" in that it means that
demonstrating an additional voting rights district is not sufficient to
force DOJ action under the new Section 5 language.
Furthermore, the choice to petition for Section 5 preclearance
simultaneously from DOJ and the US District Court for DC offers more
opportunities for DOJ to play politics, not less. If DOJ really wanted to
play politics with Virginia's Section 5 submission, they would have withheld
their approval of the Republican House of Delegates plan -- while approving
the Senate plan, where they had concerns -- and let the court continue. DOJ
knew that they would preclear the House map. It is unknown what action the
court would take. If the court appeared it would approve the map, then
belated DOJ approval of the House map would provide circumstantial evidence
to support Christian's claim. If the court entertained the discriminatory
purpose argument and would not approve, or their approval would be delayed
by the process, DOJ could make a strategic decision at that point how to
proceed given the court's likely remedial action.
Christian's argument depends on what action the court would take. Perhaps
someone could point the list to the US District Court for DC documents
related to Cuccinelli's petition. A casual search does not reveal to me any
court documents or a calendar date for a hearing.
What now? Does the US District Court for DC continue its obligation to
review the Virginia plans? If so, what happens if the court reaches a
different conclusion than DOJ? If there is a procedure to withdraw a court
Section 5 submission, does Cuccinelli only withdrawing the House petition,
and let review of the Senate plan continue?
============
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
> -----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: Tuesday, June 21, 2011 11:36 AM
> To: Chambers, Hank
> Cc: David Becker; 'Election Law'
> Subject: Re: [EL] VA legislative plans precleared
>
>
> 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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