Voting Rights Issues in the Post-2010 Era

J.J Gerald Hebert , Executive Director & Director of Litigation Campaign Legal Center, Washington, DC

— International Municipal Lawyers Association Washington, DC April 11, 2011

Redistricting Principles •Foundations F d ti off redistricting di t i ti law l are shaky •Deeply divided U. S. Supreme Court •Little Little or no consensus among lower courts

•What are the consequences for the state and local governments? Difficult for states to balance: •Race •Party P t •Politics

Four Legal Requirements that Come into Play 1. U.S. Constitution: One-person, one-vote requirement 2. Sections 2 and 5 of the VRA 3. U.S. Constitution: Racial Gerrymandering or Shaw vv. Reno Doctrine 4 Political Gerrymandering 4. Gerrymandering—no no clear theory has emerged, yet issue remains justiciable (also, possible suits under the state constitutions)

Population Equality Requirements

Two Distinct Standards: •

Legislative & Local Districts-- less strict

•

Congressional Districts--strict

One-Person, One OneOne--Vote Requirement for state legislative & local districts: •

Origin 14th Amendment Origin--14th

•

10% % Rule of Thumb

•

If you go above 10%...

One-Person, OneOneOne-Vote Requirement for state legislative & local districts: •

Total Deviation ← 10% Generally, No Justification Required (absent arbitrariness or invidious discrimination)

•

ota Deviation e at o → 10% 0% Total Justification ALWAYS Required

R di i i andd the Redistricting h Voting V i Rights Ri h Act A Section S ti 5 off the th Voting V ti Rights Ri ht Act A t Applies to 16 States

9 states totally covered 7 states partially covered

Section 5 of the Voting Rights Act

• Racially y discriminatoryy p purpose p Intent (no longer “retrogressive intent”) • Racially y discriminatoryy effect Retrogression (Beer)

Section 2 of the Voting Rights Act: Applies Nationwide A “Results” Test 3 Gingles Preconditions 50% M Majority j it R Rule l Proportionality is relevant Dilution: fragmentation/packing

Packing/Dilution Biggest issues in post-2000 redistricting for f minority opportunity districts What is Packing? Dilution? Packing. g A district p presently y elects a minority candidate at 55% minority. The state redraws the district at 65% minority. What if the neighboring district is 45% minority? Packing one district with more minorities than necessary to elect a candidate of choice may produce vote dilution in another district. It may also raise issues under Shaw v. Reno.

Bartlett v. Strickland Was About Whether ““Coalition Coalition Districts Districts”” Are Cognizable under Section 2 Coalition Districts: what are they? y Districts in which a minority group constituting less than 50% of a district’s population but nonetheless can elect its candidates of choice when joined by predictably supportive non non-minority minority voters.

Bartlett v. v Strickland • The Court held that in order to satisfy the first Gingles factor, a minority group must constitute more than 50% of the voting-age population in a proposed majority-minority district. • If a minority group cannot show that it can constitute more than 50% of the VAP in a district,, it cannot prevail p on a Section 2 claim,, even if the group would be able to regularly elect the candidate of its choice with the reliable support of “cross-over” white voters. • Under Bartlett, while legislators are permitted to draw such cross-over districts, they are not required q by y Section 2 of the Voting g Rights g Act to do so.

Bartlett v. v Strickland • Bartlett v. Strickland was not a Section 5 case. • Thus, if a local government currently has a district in which black voters constitute less than 50% (e.g., 45% black VAP), and regularly elects the candidate of choice in such a district due to voting by enough reliable crossover votes from white voters, such a district cannot be dismantled using Bartlett’s as authority to do so. so • To do so, would run afoul of the retrogression g prohibitions p of Section 5 (the ( preclearance provisions).

Redistricting g The 1993 Shaw v. Reno decision •Excessive and unjustified use of race •Tugs States in directions seemingly counter to Voting Rights Act

VRA

Shaw

What is the Shaw v. v Reno test?

TRP Race

E Examples l off Traditional T diti l Redistricting R di t i ti Criteria C it i :

•Respect R t ffor political liti l subdivisions bdi i i •Respect for communities of interest •Protection of Incumbents •Preserve core of existing g districts •Compactness •Maintain Maintain partisan make-up of district •Contiguity

Determining Race as a Factor • District Di t i t Shape Sh and d Demographics D hi • Beauty B t C Contests: t t A Appearances M Matter tt • Statements St t t M Made d b by L Legislators i l t and d Staff St ff (L.L.S.S.) • Nature of Redistricting Data (e.g. blocks)

Supreme Court’s 2009 NAMUDNO decision • The constitutionality of Section 5 was challenged in Northwest Austin Municipal Utilities District Number One v. Holder. • In the 8-1 decision,, Supreme p Court interpreted p the bailout provisions of the VRA to allow the utility district to seek an exemption from Section 5’s requirements (bailout). • In NAMUDNO, NAMUDNO the court held that all political subdivisions-meaning, simply, any division of the state that discharges some governance function--may bail out. • For F now, Section S ti 5 is i still till valid lid and d applicable li bl tto redistricting, although several Justices have expressed skepticism about its constitutionality.

Bailouts Post-NAMUDNO • Two have been g granted by y the DC Court (Kings Mountain, NC, and Sandy y Springs, p g , GA)) • Three currently pending in DC Court (Jefferson County Utility District, District Bedford City and Bedford County, VA) • More than a dozen additional bailout req ests pending before DOJ requests

Why Not More Post-NAMUDNO Bailouts? • Jurisdictions, particularly smaller ones, are unaware • Jurisdictions are aware of bailout but believe it is too: – Costly – Burdensome (too much effort) – Lack information about how it works

• Still others may find preclearance is routine or they may defer to local minority leaders who may not want the local jurisdiction to bailout

The financial cost of Bailout • In a brief I filed in NAMUDNO on behalf of Virginia jurisdictions that bailed out, I reported that the total cost for a county to obtain a bailout was less than $5000. • That amount is likely less than a county would spend on making preclearance submissions over the next twenty-five years. • The $5000 bailout fee included gathering and seeking a bailout not only for the county, but also all political subunits within the county. • Obviously, the cost of obtaining a bailout for a small jurisdiction (i (i.e., e a political subunit of a county) would be even less (roughly half that amount in most cases).

Is Bailout process burdensome? How does the Bailout process work? • Not at all. Jurisdictions simply contact DOJ and inform the Department that they want to seek a bailout bailout. • Jurisdiction gathers documents and election data from local election officials • Jurisdiction sends info to DOJ • Jurisdiction must give publicity (sec. 4). Public hearing? • DOJ conducts an independent investigation to determine bailout eligibility • If unprecleared voting changes are discovered during the DOJ bailout investigation or by the jurisdiction itself ((due to inadvertent failure to submit), ), then the jurisdiction submits those for preclearance. • Assuming DOJ determines bailout eligibility, jurisdiction then files a complaint in the DC court, along with severall other th llegall d documents, t iincluding l di ultimately lti t l a consent judgment and decree granting bailout.

Voting Rights Issues in the Post-2010 Era

J.J Gerald Hebert , Executive Director & Director of Litigation Campaign Legal Center, Washington, DC

— International Municipal Lawyers Association Washington, DC April 11, 2011