Subject: RE: Summary Affirmance in Cox
From: JMWice
Date: 6/30/2004, 10:42 AM
To: "Douglas Johnson" <djohnson@NDCresearch.com>
CC: "'election-law'" <election-law@majordomo.lls.edu>

Underpopulating effective minority districts to comply with Sections 2 and 5 of the VRA should still be a "compelling" reason as long as it is still done within the 10% window. I would also think that recognizing traditional long-standing jurisdictional boundaries as well as geographical land features and several other "traditional" criteria, if applied properly jurisdiction-wide, should all withstand at 10% challenge. The courts are now going to look at 10%  for other "invidious" (read, unfair partisan) advantage.

The Georgia court did not find such reasoning. It will be interesting to watch the Rodriguez v. Pataki appeal when it reaches the US Supreme Court (as well as the Texas case, although NY focuses more on the 10% standard, not an issue with congressional districting). The New York State Senate  used  same 10% "safe harbor" arguments when upstate, rural GOP leaning districts were underpopulated while downstate, Democratic leaning districts and minority districts were overpopulated (a reverse of the underpopulated minority district strategy you write about).

Jeff Wice
Adjunct Professor of Law
Touro Law School
Huntington, NY

Douglas Johnson wrote on 6/30/2004, 1:15 PM:

What are people's thoughts about the impact of this ruling on Voting Rights Act - related situations, where in order to meet perceived VRA requirements heavily minority districts are underpopulated.
 
Is that perceived VRA requirement (to underpopulate if necessary to create Section 2 and/or Section 5 - driven districts) now in doubt, and the VRA requirement could now become to do as well as possible with population-balanced districts?
 
- Doug
 
Douglas Johnson
Senior Research Associate
Rose Institute of State and Local Government
310-200-2058