Bob Bauer’s
recent remarks supporting
the Georgia
v. Ashcroft case, while not novel (Rick Pildes and Sam Issacharoff have
made
similar statements), unfortunately rely upon and spread myths about the
case
that simply must be addressed to properly understand the pre-Ashcroft
Sec. 5
standard, the post-Ashcroft standard, and the effect of the currently
proposed
Ashcroft fix. I address all of these issues to much greater degree in
my
paper for Boalt Hall’s Warren Institute, which I understand will be
published later this summer, but in order to avoid this becoming the
longest
email in history (and I may have already approached that dubious
honor), I will
just make some brief summaries of the main points. I apologize for the
length of this post, and if anyone would like further information on
these
issues or about my soon-to-be-published paper, feel free to contact me
off-list.
MYTH #1:
THE PRE-ASHCROFT STANDARD
WAS RIGID AND MECHANICAL, AFFORDING NO OPPORTUNITY
FOR “FLEXIBILITY.”
O’Connor
relies
upon this canard, as have some of the commentators mentioned above. If
one were to believe these individuals, all Beer required, and all the
DOJ did,
once a redistricting plan came in was to tally up the number of
majority-minority districts in the old plan and in the new plan, and if
there
was a reduction, an objection was necessary. This is simply a grave
misunderstanding of the pre-Ashcroft standard. If this were true, it
would hardly have take the 60 days mandated by Sec. 5 to review a
plan. A
trained monkey could have done it 10 minutes. However, as the
pre-Ashcroft Guidance makes clear, demographics were but one of several
factors
considered when reviewing a plan pre-Ashcroft. Other factors such as
electoral history in the plan as a whole, and in individual districts,
racially
polarized voting in the districts at issue, minority legislators’
support
for the plan, minority voters’ and advocates’ support for the plan,
etc. In addition, multiple demographic measurements were reviewed –
in addition to minority VAP, DOJ analyzed minority POP and, perhaps
most
importantly, minority REG (where measurable, as it was in Georgia).
Indeed,
this is exactly what the DOJ and lower court did in Ashcroft. While
the
Court was correct to note that Georgia maintained the number of
BVAP-majority
districts (some reduced to majorities as small as 50.05%, counting all
multiple-race black respondents, so that some of these individuals were
black
in conjunction with many other races), the lower court and DOJ noted
that there
was an undisputed reduction of BREG-majority districts from 13 down to
8.
While there were 11 districts in the previous plan where black voters
were
electing their preferred candidates, there were serious doubts about
their
continued ability to elect those candidates in at least 3 (and perhaps
as many
as 5) of those 11 districts – doubts which Georgia introduced no
district-specific
evidence to rebut, despite their having the burden of proof.
The
whole basis of Rick’s hypothetical, and many advocates in favor of the
Ashcroft decision, is therefore flawed. One could not, and should not,
merely be able tally up majority-minority districts to determine
anything under
Sec. 5. Indeed, one of the so-called majority-minority districts in
the
GA plan, Senate District 12 in Albany,
was NOT electing a black-preferred candidate, despite having
approximately 55%
BVAP. However, in that district over time black voters had built their
strength up to the point where they were so close to electing their
candidate –
in an open seat election in 1998 between an established black candidate
with
political experience and a white candidate with no political
experience, black
voters came within less than 500 votes (less than 3%) of winning the
Democratic
primary (and likely the general election) in a district with extremely
racially
polarized voting. Then the state sought to reduce the BREG by several
percentage points – after working for so long to be able to elect their
preferred candidate, and on the cusp of being able to realize their
dream in
the face of extreme white RPV,
GA knocked them back to
square
one. The DOJ, the lower court, AND the Supreme Court all held that
this
was retrogression in this district, and correctly so in my view.
It’s
time to do away with the term “majority-minority” to indicate
anything in terms of ability to elect. It is a lazy shorthand, and it
tells us very little. There are majority-minority districts now which
still do not elect minority-preferred candidates due to a variety of
factors
(District 12 indicated above), and many STRONG ability to elect
districts where
minorities are not in the majority (McKinney’s and Scott’s
congressional districts in Georgia, for instance), again due to a
variety of
factors, including consistent white crossover. The pre-Ashcroft
standard
always sought to look comprehensively at all the data and evidence
which would
indicate the true ability to elect, and therefore the Ashcroft fix
merely
restores the exact same standard applied (and published in DOJ
guidance) before
the Ashcroft decision.
MYTH #2:
THE GEORGIA PLAN AT
ISSUE IN ASHCROFT REPRESENTED A
GRAND BARGAIN BETWEEN THE DEMOCRATS AND BLACK LEGISLATORS TO CONTINUE
DEMOCRATIC
POWER IN GEORGIA,
WHICH WOULD ULTIMATELY BENEFIT BLACK VOTERS.
Again, many
have relied
upon this idea to justify their support for the Ashcroft decision, and
to
retroactively support their mistaken idea of how the pre-Ashcroft
standard
worked. Unfortunately, based on the undisputed evidence introduced in
Ashcroft, there simply was no “bargain” in the Ashcroft case.
First of all, the idea that there was a conscious bargain made between
black
legislators and other Democrats to trade black ability-to-elect
districts in
exchange for in increase in “influence” is an ex post fact
rationalization for the redistricting that occurred. Georgia never
asserted that it had increased “influence” districts, and asserted
to the end that its plan was not retrogressive because they had not
decreased
the number of districts in which black voters had at least an equal
opportunity
to elect their preferred candidates (this suggested standard, which had
never
been applied in the past and seems to incorporate Sec. 2 elements, was
rejected
by the DOJ, rejected by the lower court, and unanimously rejected by
the
Supreme Court). The idea of an exchange of “influence” for
abilty-to-elect districts was never raised during the redistricting
process, so
black legislators most certainly did not make a knowing bargain for
such an
exchange. Indeed, Georgia
did not raise the idea of such a bargain during the entire litigation.
Not one of their briefs argues for or suggests a standard whereby
ability-to-elect could be traded for some measure of “influence.”
Nothwithstanding the fact that not one party suggested such a standard,
O’Connor
created the standard out of whole cloth, in perhaps one of the most
remarkable
displays of judicial activism seen in the last decade. Georgia had
introduced so little evidence regarding allegedly increased “influence”
(none, in fact), that despite O’Connor’s opinion, the lower court
ruled that the record had to be reopened, and a new trial date set, so
that
Georgia could meet its burden of introducing some, any, evidence of
increased
influence to meet their burden of proof (as many know, this trial
ultimately
did not happen, as the Larios case intervened and required a complete
redistricting anyway).
Additionally,
with all
but a couple of exceptions, black legislators were shut out of the
redistricting process in Georgia, which was dominated by a small cabal
of
Democratic party operatives, and conducted largely in secret. Most
black
legislators saw the plan only days, and in some cases hours, before the
plans
were introduced into the legislature. A majority of black state
senators were
so disappointed with the plan when they saw it that many of them spoke
out in
public and private AGAINST the plan. Indeed, several spoke out
passionately from the well of the legislature, specifically stating
concern
that the plan “diluted” the black vote, and violated the Voting
Rights Act, and several members of the Georgia Legislative Black Caucus
wrote a
letter only days before the final vote on the plan expressing their
concern as
well. Several black legislators then testified that after speaking
out,
they were the targets of intense pressure on the part of Democratic
officials,
including the Governor, to support the plan. They testified that they
voted
for the plan NOT because they were convinced that it was not
retrogressive, but
because they were offered chairmanships if they voted for it, they were
offered
support for important legislation (like a bill outlawing predatory
lending) if and
only if they voted for it, and they were even promised that the
Democrats would
give them an opportunity to fix all the flaws in the plan later, if
only they
voted for it now. As a result of all this horse-trading, none of which
had anything to do with legislators’ assessment of the plan’s
benefit to minority voters, all but one of the black senators voted for
the
plan. However, it’s important to note that the one black senator
who voted against the plan represented one of the three districts
(District 2,
in Savannah) which the DOJ asserted was retrogressive – in the other
two,
one (District 26, in Macon) was represented by a black senator who
supported
the plan, and the other was District 12, which was represented by a
white
Democrat who was undeniably NOT the black-preferred candidate.
Georgia
introduced only one piece of district-specific evidence with regard to
any of
the DOJ-challenged districts – the testimony of the black senator from
District 26. In comparison, the DOJ introduced evidence from around 20
witnesses (in addition to other expert, statistical, and historical
evidence) –
all black elected officials and community leaders in the districts at
issue –
expressing grave concern about their continued or maintained ability to
elect
in these districts given the state’s reductions. Many expressed
outrage over what the state had done, and a feeling of betrayal in some
cases –
betrayal that their black elected officials had let them down.
Indeed,
there is not now a single black official in Georgia
that I know of that now
supports the Ashcroft decision. Every single black legislator who
voted
for the plan, and who has spoken publicly about the decision since, has
spoken
in favor or reversing Ashcroft (Tyrone Brooks, Bob Holmes, etc.). One
of
the only two black legislators who testified in favor of the state
during the
Ashcroft case – Senator Robert Brown of District 26 – now stands
publicly
opposed to the Ashcroft standard (and I don’t believe the other --
Charles
Walker of District 22 in Augusta
– has taken a public position). And perhaps most importantly, John
Lewis, whose testimony in Ashcroft has been so abused by opponents of
the
Voting Rights Act and supporters of the Ashcroft decision (and I
realize these
are two very different groups), has firmly and publicly rejected the
Ashcroft
decision, and supported the Ashcroft fix in HR 9.
Thus,
the only “bargain” that took place in Georgia in 2001 was Democrats’
arm-twisting, back-scratching, and payoffs to black legislators to get
them to
vote for a bill that they knew to be retrogressive for black voters,
and
against which black legislators had begun to publicly revolt. Black
legislators’ support for this plan is one of the great lies about the
Ashcroft case. The only support they showed for the plan was in their
votes, which represented a variety of calculations, none of which
related to
retrogression, and their well-supported concerns about the plan was
documented
in a variety of other ways. Additionally, black voters and community
leaders were nearly unanimous in opposing the plan at the time, and
opposing
the Ashcroft standard now. If those who support the Ashcroft decision
believe that black support is nearly dispositive in these cases,
indicating
some sort of bargain on their part to maintain political power in
other,
undefined and nebulous ways, then how can they so easily discount the
near unanimity
in the black community, including those who supported the state in the
Ashcroft
case, who now seek to overturn Ashcroft, adopt the Ashcroft fix, and
thus
(theoretically at least) tie their hands to limit their ability to make
such “bargains”
in the future. If they really believed they stood to benefit from such
supposed “bargains,” and believed that Ashcroft increased their
flexibility, wouldn’t they be the first to support the Ashcroft
decision? The very fact that those black legislators and leaders who
know
the Ashcroft case best support reversing the decision and restoring the
pre-Ashcroft standard by implementing the proposed Ashcroft fix should
be at
least as dispositive on this issue as their mere vote on a bill one day
back in
August, 2001.
MYTH #3:
THE PRE-ASHCROFT STANDARD
REQUIRED MAINTENANCE OF PACKED DISTRICTS, AND PREVENTED REDUCTIONS OF
MINORITY
PERCENTAGES IN PACKED DISTRICTS.
This
is one of the most frustrating myths about Sec. 5, and the Ashcroft
case in
particular. To my knowledge, the DOJ has never (recently, at least)
taken
the position that minority percentages in ability-to-elect districts
must be
frozen in place. Indeed, due to demographic and population shifts, it
is
often impossible to freeze such percentages in place, even if it were
desirable
(which it isn’t). The state’s plans in Ashcroft are a perfect
illustration of the true policy regarding packed districts.
It
is often forgotten, but there were actually three redistricting plans
at issue
in Ashcroft – the state senate plan (which the DOJ challenged), the
state
house plan, and the congressional plan (both of which the DOJ did not
challenge).
In the congressional plan, there were three benchmark districts
election
black-preferred candidates – Sanford Bishop’s district (which was
below 40% BVAP), Cynthia McKinney’s district (which was around 45%
BVAP),
and John Lewis’ district (which was over 57% BVAP). The state
complied with Sec. 5 beautifully in this plan. It slightly increased
the
BVAP’s in Bishop’s and McKinney’s
districts (which was not required, but solidified black prospects in
those
districts), and decreased the BVAP in Lewis’ district by about 4-5%
(giving much of it to McKinney’s
district. While Lewis’ district was reduced to about 52% BVAP,
there was no legitimate claim that there was retrogression in that
district,
given the strong level of consistent white crossover. Clearly, Sec. 5
was
not interpreted to freeze packed districts in the case of the
congressional
plan (and in addition, the state created new districts for black
opportunity in
the plan, in newly-created districts like David Scott’s district,
which,
though only around 40% BVAP, is consistently electing black-preferred
candidates).
Similarly,
the state house plan contained many seriously packed districts with
BVAPs of
more than 80%, most of which were in the Atlanta metropolitan area (no
district
in the state senate or congressional plan had a BVAP of greater than
65% in the
benchmark plan, but since there are 180 house seats in Georgia, the
house
districts were quite small, and it was nearly impossible not to pack
single-member districts). The state came up with an intriguing, and
successful, way of addressing this packing. They created multimember
districts that radiated out from Atlanta, encompassing more white
areas, thus
reducing BVAPs in many of these districts from 80%+, to less than 65%
(and in some
cases, less than 60%), where every member elected from these districts
would be
black-preferred. This innovative approach was looked upon favorably by
DOJ, and the courts.
Finally,
even in the senate plan, districts were not required, under the
pre-Ashcroft
standard, to freeze their BVAPs in place. Of the 11 districts where
black-preferred candidates were being elected, the state reduced the
BVAPs and
BREGs in 10 of them. These were not packed districts to start with –
many were in the 55%-60% range in the benchmark. Nevertheless, the DOJ
only challenged 3 of these 10 districts, and of the 7 reduced districts
regarding
which DOJ consented to the reductions, at least 2 saw their BVAPs
reduced to
below 51%. The difference between these, and the challenged districts
was
that comprehensive review of all the evidence and expert testimony led
to the
inescapable conclusion that continued black ability-to-elect was put in
peril
in the 3 challenged districts, whereas evidence was not conclusive that
ability-to-elect was reduced, or it indicated it was not reduced, in
the other
districts.
Consequently,
application of the pre-Ashcroft standard actually ENCOURAGED the
development of
so-called “coalition” districts – districts where minority
voters did not make up the majority, but were nevertheless able to
consistently
elect their preferred candidates due to consistent white crossover and
cohesion
with other minority voters. Such districts were nurtured by Sec. 5 –
where minority voters were able to elect their candidates of choice
consistently, regardless of their demographics, those districts were
protected
(or in the case of the proposed plans, credited) by Sec. 5.
MYTH #4:
THE EXISTENCE OF SUCH A
THING AS “INFLUENCE” DISTRICTS.
I
think this is the much greater issue surrounding this debate.
Personally,
I don’t believe in influence. I don’t think it really exists.
First, we must define “influence” districts. While it’s
difficult to define exactly what an influence district is (and O’Connor
is all over the map on this, at different points insinuating that a
20%, 25%,
or 30% BVAP district would be an influence district), it’s clear what
an
influence district is NOT – it is NOT a district where minority voters
are electing their preferred candidates (otherwise, no matter the
demographics,
such a district, under the pre-Ashcroft standard, would be considered
an
ability-to-elect district, like Bishop’s district). Thus, let’s
start with the idea that influence districts are those where minority
voters
cannot elect their candidates of choice, yet where there is some other
measure
of minority “influence.”
In the case
of Georgia,
the state did not introduce evidence of a single district where black
voters
could not elect their preferred candidates, and yet where they had some
kind of
influence (hence the lower court reopening the record after the
Ashcroft
decision). In the senate plan, the evidence strongly suggests that
O’Connor’s
idea of influence is simply unrealistic. For instance, there were 16
senate districts in 2002 with BVAPs between 25% and 50%, and almost
half of
them were represented by white Republicans after the 2002 elections
(and these
white Republicans were undisputedly the LEAST-preferred candidates
among black
voters). Every one of the 16 districts was represented by whites, and
there was no evidence introduced anywhere that any of these whites were
particularly receptive or sympathetic to their minority voters. To
further document that such a doctrine of “influence” is not
well-grounded in political reality, one need look no further than the
highly-publicized vote to remove the Confederate battle emblem from the
Georgia
state flag. While the GLBC was unanimous in its support for the
changing
of the flag, twelve of the nineteen white senators elected from
districts with
more than 25 percent BVAP voted in 2003 AGAINST the changing of the
flag.
I have yet
to see any
evidence of an actual “influence” district – a district where
minority voters do NOT prefer the elected candidate, but where that
elected
candidate is nevertheless tangibly sympathetic to minority interests.
I
believe David Canon has done some very interesting analysis of this
with regard
to Congressional elections. It is my belief that most of these
districts
where there are undeniably minority sympathies are districts which are
actually
ability-to-elect districts – i.e., districts where minorities are
electing their preferred candidates, but those preferred candidates
happen to
be white. For an example of this, see Martin Frost’s district in Texas (before
DeLay’s
re-redistricting). There certainly were no districts where evidence
suggested tremendous sympathies to minorities in the face of cohesive
minority
opposition in Georgia, and I’d be interested to hear from others on the
list if they can suggest a district where minorities are not electing
their
candidates of choice, but where those minorities have an unusually high
degree
of influence over the candidate they are opposing (realizing that this
opposition will usually occur in the Democratic primary, with minority
support,
though perhaps lukewarm, in the general election for the white
Democrat).
However,
even if such
influence DOES exist, I think it’s incredibly paternalistic and
patronizing for white legislators to say that, though minority voters
are
consistently preferring their own candidates, and those candidates are
NOT
being elected due to RPV and other factors, that they should be able to
replace
their own judgment about what is good for minority voters for the
collective
and cohesive judgment of black voters. If that’s what the
Democratic party stands for – the idea that they know best what’s
good for minorities, even if minorities disagree – then I certainly am
no
Democrat (to be clear, I don’t believe this is what the majority of
Democrats or Republicans is saying, as they seem to be overwhelmingly
supportive of the Ashcroft fix). I believe the only objective measure
of
what is “good” for minorities, in the voting rights context, is how
minorities themselves choose to define that term, as objectively
measured at
the ballot box.
These are
but some of the
misconceptions about the case, and I encourage all those with questions
to read
my paper, other good papers about the standard (not all of which I
agree with)
by Pam Karlan, Mike Pitts, Mark Posner, Meghan Donaghue, and others
(all of the
above, other than Pam, having worked in the DOJ), and perhaps most
importantly,
the pleadings and evidence in the Ashcroft case, and the lower court
opinion.
One further note – I find it somewhat contradictory that those who
oppose
the Ashcroft fix – which very clearly in my view, and in the view of
many
others who actually enforced the pre-Ashcroft standard, admirably and
simply
restores that standard – argue that the standard is too vague to be
interpreted, and yet support the more-vague Ashcroft standard (which
doesn’t
even define a key term – “influence” – or give any
indication to the calculus to be applied in weighing influence versus
ability-to-elect). Similarly, these same Ashcroft advocates praise the
“flexibility”
of the Ashcroft standard, while complaining that the Ashcroft fix is
TOO
flexible and undefined.
Finally,
I’ll attempt
to answer Rick’s hypotheticals, though I believe the underlying
paradigm
to be somewhat unrealistic. In both these hypos, my answers
pre-Ashcroft
and under the Ashcroft fix are identical, since as I indicated, I share
the
views of many that the Ashcroft fix merely restores the pre-Ashcroft
standard:
HYPO #1:
I’ll
assume by “majority-minority” Rick meant “ability-to-elect”
district (if he didn’t, there is not enough information to answer this
hypo). Pre-Ashcroft (and under the Ashcroft fix) – clear
retrogression.
Post-Ashcroft (current) – who the hell knows? No one can say for
sure under the current standard, because O’Connor gives no indication
of
her calculus, we have no idea what an influence district is (though
I’ll
assume for the purposes of this hypo that the jurisdiction was able
prove that
there was influence in these districts) and so this case is certain to
go to
the Supreme Court if an objection is interposed. And who can say what
the
Court would do in such a case, especially since O’Connor is now
gone. If we want to engage in wild speculation, I’d suggest that a
fair DOJ (remember the halcyon days of a fundamentally fair DOJ?) would
object
to this plan (right now the DOJ would ask only one question – did
Democrats
or Republicans draw the plan?) – where there is only one
black-preferred
candidate being elected in the entire plan, eliminating that district
is even
worse than reducing the number of ability to elect districts from 2 to
1, for
instance, since it completely eliminates black-preferred
representation.
In general, I’d also say that 2 influence districts is not equivalent
to
1 ability-to-elect districts, but that’s just my opinion – seriously,
who the heck can answer this question definitively. To continue my
wild
speculation, I’d guess that after DOJ objected, this Supreme Court
would
preclear, given their hostility towards to the Voting Rights Act,
coming up
with an entirely NEW rule for a Sec. 5 standard.
HYPO #2:
I’ll
assume that in this hypo, minority-preferred candidates are being
elected in
the non-white controlled districts. Pre-Ashcroft (and under the
Ashcroft
fix) – no retrogression, preclearance is appropriate. While, as
Gaddie points out, there might be a possible Shaw claim, this is not a
relevant
consideration under Sec. 5. No consideration of constitutionality is
appropriate under Bossier, so therefore preclearance would be granted.
Post-Ashcroft
(current) – again, who the hell knows, but I’d guess that this is
one place where the standards reach the same conclusion – no
retrogression, and preclearance is appropriate.
Again, I
apologize for
probably setting the record for the longest post to the listserve, and
if you’ve
actually read this far, congratulations on your endurance and thank you
for
your indulgence.
As many people on the list
know, current section 5
provides that the DOJ cannot grant preclearance to a change in a voting
procedure unless the jurisdiction can show that the change "does not
have
the purpose and will not have the effect of denying or abridging the
right to
vote on account of race or color, or in contravention of the guarantees
set
forth in section 1973b(f)(2) of this title."
The proposed revision to section 5 would further define the applicable
standard
to explain that
"Any voting qualification or prerequisite to voting, or standard
practice
or procedure with respect to 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 or color, or in contravention of the guarantees set
forth in
section 4(f)(2), to elect their preferred candidates of choice denies
or
abridges the right to vote within the meaning of subsection (a) of this
section."
So here are my two hypotheticals. I thought it would be useful to hear
from
list members whether the DOJ should grant preclearance under (a) the
Beer
standard (pre-Georgia v. Ashcroft);
(b) the current Georgia
v. Ashcroft standard; and
(c) the proposed revision to section 5.
Discussion of these hypotheticals among list members might clarify both
existing law (i.e., what does Ga.
v. Ashcroft mean) and the meaning of the proposed revision.
Hypo 1: A jurisdiction's old redistricting plan had one
majority-minority
district. The new plan it submits for preclearance has no majority
minority districts, but creates two "influence" districts.
Should the DOJ grant preclearance?
Hypo 2: In a jurisdiction with racially polarized voting, under the
existing
plan white-preferred candidates were elected in 11 of 12 districts. The
new districting
plan it submits for preclearance creates a second majority minority
district,
so that white preferred candidates are elected in only 10 districts
now.
Should the DOJ grant preclearance?
If the answer is "it depends" or "we need more information,"
what does it depend on and what more information would we need?
Finally, it is possible that Hypo 1 and Hypo 2 are the same
jurisdiction (i.e.,
an existing jurisdiction with 1 majority-minority district). Is it
possible that preclearance cannot be granted for either change?
Rick
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org