The Voting Rights Act: Here Today, Gone Tomorrow

1
The Voting Rights Act Here Today, Gone Tomorrow?

• David Epstein
• Sharyn OHalloran
• Columbia University

2
The Original Gerrymander

• Named for Elbridge Gerry, Governor of Mass.,
  1810-12
• Later Vice President under Madison
• Plan elected Republicans 29-11, even though they
  received only 57 of the popular vote.

3
Importance for Democratic Institutions

• In a majoritarian system, passing legislation
  important to minorities requires coalitions
• Two strategies to accomplish this
• Elect minorities to office and have them bargain
  with other groups in the legislature
• Form coalitions at the electoral stage, working
  through parties that will pursue their policy
  agenda
• Political institutions can favor one method of
  coalition building over the other
• Concentrate minority voters in a few districts,
  or
• Spread them out more evenly across districts
• This is what the redistricting battle is all about

4
Game Plan

• Review major provisions of the Voting Rights Act
  and Section 5 Preclearance
• Present our research on racial redistricting and
  substantive representation
• Spell out some of the implications of our
  research for the 2007 VRA reauthorization

5
Game Plan

• Review major provisions of the Voting Rights Act
  and Section 5 Preclearance
• Present our research on racial redistricting and
  substantive representation
• Spell out some of the implications of our
  research for the 2007 VRA reauthorization

6
1965 Voting Rights Act

• Section 2
• Made illegal all voting arrangements that deny
  or abridge minorities right to vote
• E.g., at-large voting for city councils
• This section is nation-wide and permanent
• Section 4
• Swept away all states laws imposing tests or
  devices on individuals right to vote
• Literacy Tests
• Good Character Requirements
• Language Barriers (added in 1975)

7
Section 5

• Covered jurisdictions (including most of the
  South) need federal approval for changes in laws
  that might affect voting
• Redistricting, at all levels
• Changes in Electoral Systems
• Annexation/De-annexation of suburbs, etc.
• Unique prior restraint on state actions
• Not permanent up for renewal in 2007
• Previous renewals in 1970, 1975, and 1982

8
Section 5 Implementation

• Standard for preclearance is retrogression
• I.e., new law cant be a step backwards
• Like going back to at-large elections from
  districts
• Or annexing suburbs to dilute minority voting
  power in the city as a whole
• Unclear how this applies to redistricting
• After all, voters dont disappear
• Depends on your theory of the relation between
  districting and representation

9
Theory of Black Electoral Success

• Majority-minority districts are necessary given
  polarized voting.
• Otherwise, with plurality-winner elections,
  minorities will remain unrepresented.
• No tradeoff between descriptive representation (
  of minorities elected) and substantive
  representation (votes for minority-supported
  legislation).
• Consistent theme in Justice Department
  enforcement of Sec. 5 preclearance
• Rule had been you couldnt reduce the number of
  majority-minority districts

10
Georgia 2000

• Georgia State Senate has 56 districts
• Of these, 13 were majority-minority districts
  according to the year 2000 census
• New plan reallocated black voters to create more
  districts in the 25-50 BVAP range
• Kept the same number of majority-minority
  districts
• But dropped some 63 BVAP districts down to 51

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Georgia 2000

• Georgia State Senate has 56 districts
• Of these, 13 were majority-minority districts
  according to the year 2000 census
• New plan reallocated black voters to create more
  districts in the 25-50 BVAP range
• Kept the same number of majority-minority
  districts
• But dropped some 63 BVAP districts down to 51
• Supported by 43 of 45 black legislators and Rep.
  John Lewis, a key player in the Civil Rights
  revolution
• Question Is this retrogressive under Section 5?

13
Georgia Plan Denied Preclearance

• DOJ Georgia plan was retrogressive, since it
  decreased the number of safe black districts
• Original plan was thus denied preclearance
• Georgia appealed, arguing that the plan was
  intended to promote minority policy interests
• Highly gerrymandered districts may
  over-concentrate minority voters
• If this is true, there is a tradeoff between
  descriptive and substantive representation
• Supreme Court took the case

14
Game Plan

• Review major provisions of the Voting Rights Act
  and Section 5 Preclearance
• Present our research on racial redistricting and
  substantive representation
• Spell out some of the implications of our
  research for the 2007 VRA reauthorization

15
Empirical Approach

• The question of whether there is a
  descriptive-substantive representation tradeoff
  is an empirical one
• Our approach
• How you would draw districts to maximize the
  votes in favor of minority-supported legislation?
• Is this different from the strategy to elect as
  many Blacks as possible?
• How has this changed over time?

16
Methodology

• Measure for descriptive representation is the
  number of minorities elected to Congress
• Need to measure substantive representation
• Take all CQ Key Votes from 1975-2000
• On each vote see which way the majority of black
  representatives voted
• For each member, calculate the percent of times
  that they voted with the black majority
• Then determine the districting strategy that
  maximizes each type of representation

17
Descriptive and Substantive Representation,
1975-1996
60
45
Votes inSupport
40
58
35
56
30
54
25
52
Vote Score
Number of Black Reps.
20
50
15
Number of
48
Black Representatives
10
46
5
44
0
94
95
96
97
98
99
100
101
102
103
104
Congress
Emerging tradeoff between descriptive and
substantive representation?
18
Electoral Equations
94th Congress
99th Congress
104th Congress
South
East
Other
Decreased polarized voting within the electorate.
19
Vote Scores and Representation

• Scores are fairly constant within each group,
  differ across groups
• Increased partisan polarization within Congress

20
Total Representation
General patterns consistent across time.
21
Results Substantive Representation

• In the 1970s 100
• Concentrate black voters as much as possible
• Essentially, no white will vote for black
  representatives
• In the 1980s 65
• Strategy is still to elect blacks to office
• In the 1990s 2000s 45
• Still a good chance of electing blacks
• Now better to spread influence across districts

22
Results Descriptive Representation

• Point of equal opportunity 40
• Criticized when we first suggested this
• But subsequent elections have seen blacks win 11
  of 15 southern seats from 40-50 districts
• Drawing districts to maximize the number of
  minorities elected 62
• There is now a tradeoff between descriptive
  substantive representation

23
Georgia v. Ashcroft

• Georgia plan was appealed to the Supreme Court as
  Georgia v. Ashcroft
• Court ruled for Georgia, stating that
• Retrogression is about more than electing
  minorities to office
• Minorities could choose to trade off descriptive
  and substantive representation
• Consistent with New Federalist approach that
  the Court has adopted in recent cases

24
Game Plan

• Review major provisions of the Voting Rights Act
  and Section 5 Preclearance
• Present our research on racial redistricting and
  substantive representation
• Spell out some of the implications of our
  research for the 2007 VRA reauthorization

25
More-or-Less Options

• Extremes
• Make current version of Section 5 permanent
• Eliminate Section 5 altogether and rely on
  Section 2 enforcement
• Middle Ground
• Reconfigure Section 5 as expedited injunctions
• Exempt state-level actions from Section 5 review
• Provide more detailed rules for DOJ enforcement
• Revise Section 4 coverage formula to focus on
  current voting rights violations

26
Shifting Battlegrounds

• Arguably, major voting rights issues are no
  longer state-level elections and lawmaking in the
  South
• This now looks more like normal politics
• Some areas not covered under Section 5 may have
  clear voting rights violations
• E.g., Native Americans in North Dakota
• Emerging issues relating to
• Disparate impact of voting technologies
• HAVA, voter registration and designated
  challengers
• Felon disenfranchisement
• Naturalization and incorporation of immigrant
  groups

27
Lessons from Our Research

• Key issue is the democratic incorporation of
  minority groups vs. tyranny of the majority
• Have to create the necessary conditions for
  effective coalition-building
• Most important is ensuring that minority groups
  can register and vote without undue state
  interference
• Do not focus exclusively on the descriptive
  representation of minority groups
• This is an important goal in its own right
• But there is a tradeoff between substantive and
  descriptive representation, so it may come at a
  cost
• Groups should be able to determine for themselves
  where they want to locate along this scale