Your morning jolt: The dueling legal arguments behind redistricting

The state Legislature embarks this morning on what might – or what might not be – the penultimate day of the redistricting session.

We’re hearing something about a surprise at this morning’s 9 a.m. meeting of the Senate Reapportionment Committee, which is scheduled to take up the state’s new congressional districts.

In the meantime, you’ll hear plenty of speeches today, from Democrats and Republicans, about the Voting Rights Act. Don’t think of them as mere bombast – though in some cases, you’d be exactly right. Think of them as precursors to what will be said in federal court.

The issue: Are white Democrats a protected class under the Voting Rights Act – if they are the choice of a substantial number of African-American voters?

Throughout this August session, the arguments have been crafted in large part by two House lawyers – Majority Whip Edward Lindsey, R-Atlanta, and Minority Leader Stacey Abrams, D-Atlanta.

Their arguments are worth some study.

Over the Aug. 20 weekend, Lindsey sent a note to his constituents, defending the GOP-controlled Legislature against Democratic charges of flouting VRA standards. In part:

The redistricting plan passed by the Georgia House on August 18, 2011, was created in accordance with guidelines issued by President Obama’s Justice Department and creates 49 African American “majority-minority” districts, which are the same number that exist at the present time. This will keep us in full compliance with the VRA. In addition, we will have for the first time a Hispanic Majority Minority district….

What legal rationale has the Democratic Party tried to use to justify its proposal and attack the plan passed by the Georgia House? It argues that the state of Georgia should move away from protecting “majority minority” districts and instead create more “cross-over districts” in order to comply with the VRA.

A “cross-over district” is a somewhat nebulous term defined as a district in which minority voters make up less than a majority of the voting-age population, but the minority population is potentially large enough to elect the candidate of its choice with help from majority voters who cross over to support the minority’s preferred candidate.

How you prove this has occurred, however, is not clear and that is why such districts have been rejected as a legitimate barometer under the VRA both statutorily and in court decisions.

In the U.S. Supreme Court decision Ashcroft v. Georgia (2003), Justice O’Connor allowed using such districts in analyzing compliance under section 5 of the VRA, but did not mandate their consideration in drawing new districts…..

The Supreme Court returned to the issue of “cross-over districts” in the case of Bartlett v. Strickland (2009). This time the court looked at whether it could consider such districts when considering possible violations under Section 2 of the VRA. Justice Kennedy in Bartlett decided against expanding consideration under the act to include such districts. He reasoned that to do so “would require courts to make complex political predictions and tie them to race-based assumptions.”

Read Lindsey’s complete argument here.

Last night, House Democrats released their answer to Lindsey. The complete text can be found here. But it includes this:

Mr. Lindsey makes fallacious contentions regarding the VRA right away, stating that the House of Representatives redistricting plan that passed the General Assembly created 49 majority-minority districts “which are the same number that exist at the present time.” Republicans have used an erroneous standard to calculate whether a district qualifies as majority-minority, looking at whether African-Americans are 50% of the population instead of 50% of the voting age population as the law requires.

The drafters also padded the numbers of black districts by including in their calculus not only persons who identify as black, but an additional segment of the population that is “any part black.” When examining the current district lines through the lens of the 2010 Census data and calculating how many House districts have a 50% or more black voting age population, the number is only 41 districts. Even if using the more inclusive “any part black” standard, the number is 44 districts — not 49.

To get to 49 districts under the newly-passed plan, Republicans pack black residents into a small number of districts at the expense of districts where blacks constituted a substantial portion, though not a majority, of the citizens of voting age. These districts, where the proportion of African-Americans of voting age population is large enough for that group to elect the candidate of its choice with “crossover” voting from a portion of the white population are referred to as “crossover districts” by the Supreme Court.

Georgia could have used these integrated crossover districts to demonstrate its compliance with the VRA’s requirements. See Bartlett, 556 U.S. at 12-13. Instead, they chose to destroy those districts and draw additional majority-minority districts based solely on racial classifications, claiming that the VRA “requires” them to create majority-minority districts where any may be found. This too is specious. The VRA does not require the maintenance of all currently existing majority-minority districts; nor does it require the maximization of majority-minority districts. Bartlett v. Strickland, 556 U.S. 1, 14-15 (2009); Johnson v. DeGrandy, 512 U.S. 997, 1017 (1994).

The reason for the refusal to utilize crossover districts in complying with the mandates of the VRA is simple. Republicans prefer to target crossover districts, which assist them in meeting their goals of eliminating white Democrats and packing minority voters into fewer districts than necessary in order to create enough Republican-leaning districts to create a super-majority. Holding a super-majority in the General Assembly means the Republican Party could pass any and all legislation, including constitutional amendments, without a single Democratic vote and ensures that Georgia is entirely a one-party rule State.

That, in a large nutshell, is the theme of the 2011 redistricting session.

***
GOP presidential candidate Mitt Romney will make another fund-raising swing through Georgia on Sept. 19. No details available yet. His wife, Ann Romney, will be in Buckhead on Wednesday for a private $250-a-head, lunch-time fundraiser.

***
The AJC’s Politifact Georgia today takes up a statement by the aforementioned House Majority Whip Edward Lindsey, R-Atlanta, a Mitt Romney supporter, who said this about his presidential candidate: “As governor, [Romney] balanced the budget without raising taxes and created jobs. He has the experience in both the private and public sectors to get Americans back to work.”

- By Jim Galloway, Political Insider

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11 comments Add your comment

A Conservative Voice

August 30th, 2011
9:04 am

To the victor belong the spoils……it was the other way ten years ago…….get over it, “dumbcrats and racists”

Romegaguy

August 30th, 2011
9:10 am

whichever side prevails in the court challenges to the redistricting here in Georgia, expect the losing side to talk about activist judges.

Atlmom

August 30th, 2011
9:12 am

does anyone else feel that voters should be considered voters? This whole discussion makes me quite uncomfortable. It’s like saying that because you are black you must vote a certain way (I know janeane garofolo believes this…but do real people actually believe this?).
It’s really gross how we have chosen to deal with race in this country. how about draw a circle, and here’s a district? put people who live near each other together in a district (the horrors!). or are we saying that people shouldn’t have that ability? it’s crazy some of the districts the Ds created 10 years ago. i didn’t see as much gerrymandering in this year’s ‘newly created’ districts. what is it people want?

Centrist

August 30th, 2011
9:23 am

Ho – hum. The Justice Department/ judges will decide if the map was done according to the VRA, and if not will be slightly adjusted. This will take a year. Big whoop – standard procedure, except this decade the issues and gerrymandering are minor compared to when Barnes and the Democrats over-reached in 2001.

The vast majority (if not in the entirety) of the maps are a done deal – so this is just AJC hype. Report it and move on.

Danny O

August 30th, 2011
10:14 am

@Centrist:

I fail to see the “hype” in this Morning Jolt. It is merely presenting the viewpoints of the two major political parties on the Georgia House redistricting process. It’s a “report,” nothing more and nothing less.

bu2

August 30th, 2011
10:29 am

For the last 50 years Democrats have been drawing districts to protect white Democrats at the expense of African Americans and Republicans. When white Democrats aren’t in charge, not surprisingly, they lose seats. Interesting that Abrams thinks her Dekalb County split into 19 seats with almost all stretching into other counties as in 2000 makes more sense than the 15 they have now. Across the country, the Republicans have been much less unreasonable in their plans than the truly extreme ones they Democrats generated when they were in power.

honested

August 30th, 2011
10:54 am

So lets move on to the election.
Then we can send the authors of the new maps back to doing whatever it was they did before they were accidentally elected.
In the statewide redistricting meetings I do think the Citizens of GA were shortchanged and mitch seabaugh should have received a ‘Most Arrogant Jerk In GA Politics’ award.

[...] Atlanta Journal-Constitution‘s “Political Insider” blog: “The issue: Are white Democrats a protected class under the Voting Rights Act – if they [...]

Big Hat

August 30th, 2011
3:02 pm

Is that Mitt Romney’s wife Ann, or his other wife Ann, that will be in Buckhead?

Jay

August 30th, 2011
4:03 pm

Stacey Abrams’ whole argument rests on the premise that all blacks should vote for Democrats. Why else would she trumpet crossover districts? She thinks that if a large enough number of voting age blacks (but not quite a majority) are in a a district, then with a little help from whites and others who vote for Democrats more Democrats will be elected. She believes that only Democrats care about blacks and so blacks should vote for only Democrats. If one of these crossover districts contained too many blacks who vote for Republicans and thus help elect Republican candidates, then she would not make an argument for creating these kinds of districts; she would stick to wanting to have as many majority black districts as possible in order to maximize political power for black people and black representatives.

Stacey Abrams has spun the media narrative so that the focus is on how white Democrats are being marginalized. However, it took black Democratic politicians working with white Republican politicians over the past two decades to get where we are today. Now that white Democratic politicians are almost extinct and few whites vote for Democrats, Stacey Abrams and some black Democratic politicians want to complain. I think they are more worried about the declining numbers of Democratic politicians overall in this state and the loss of political power that comes with that, rather than losing a supposed multiracial coalition.

Stacey Abrams assumes most blacks vote for Democrats, so her interpretation of the VRA is that electing Democrats takes precedence over ensuring black voters have the chance to elect a candidate of their choice. Thus, she thinks if fewer Democrats are elected then blacks have less representation. Hers is solely an argument for maximum political gain for Democratic politicians. Whether Democratic policies and politicians actually do anything to truly help black people is besides the point.

Abrams also exhibits the classic and all-too-familiar prejudice against people that aren’t fully black. When she complains about Republicans including people that identify as part black in their totals calculations for each district, Abrams considers these not truly black people. Maybe she fears these not truly black people because they may not vote straight Democrat. Maybe an evil non-black parent or relative will have persuaded this not truly black person to consider political alternatives. I don’t know and the press doesn’t know because no one will actually question Abrams’ obviously prejudiced remark. She speaks loudly about multiracial coalitions yet is most concerned about black people who identify as only black. If you’re not fully black then you’re not as important to Abrams’ political calculations.

Michael

September 1st, 2011
8:50 am

Blacks voted for Republicans until Hoover forgot his promises to place them in his administration. Then the levees broke and Blacks moved north during the Great Migration to escape continued abuses in the South.

Sure, there’s a cattle mentality to voting blocs but it is not confined to one ethnic or regional group. Why else would the rural South continually vote for conservatives when it is against their own interests? Why would anyone vote for someone just because he prays on demand when religion has produced some of the greatest scoundrels worldwide over the past 100 years?