Designing Democratic Government: Making Institutions Work

8. Gerrymandering as Trade-Offs: The Coevolution of Social Scientific and Legal Approaches to Racial Redistricting

Chapter 8 GERRYMANDERS AS TRADE-OFFS: THE COEVOLUTION OF SOCIAL SCIENTIFIC AND LEGAL APPROACHES TO RACIAL REDISTRICTING  David L. Epstein and Sharyn O’Halloran FOLLOWING THE 2000 census, the state of Georgia redrew its fifty-six state Senate districts to comply with the one person, one vote rule.1 At the time, Democrats held majorities in both chambers of the state legislature. The governor , Roy Barnes, was a Democrat as well, and he led the charge to construct a districting plan that would advantage his party in the upcoming 2002 elections , hoping to preserve Democratic control in the face of an expected Republican surge. The key to his plan was to “unpack” many of the heavily Democratic districts and distribute loyal Democratic voters to surrounding districts. In particular , black voters were reallocated away from districts with either especially high or low levels of black voting-age population (BVAP) in order to create more districts in the 25 to 40 percent BVAP range, so-called “influence districts .” This meant that some districts with black populations above 55 percent or even 60 percent were brought down close to the 50 percent mark. However, the total number of districts with BVAPs above 50 percent rose from twelve to thirteen. As required by section 5 of the 1965 Voting Rights Act (VRA),2 Georgia submitted its plan directly to the D.C. District Court for preclearance,3 and the Justice Department indicated its intention to interpose objections to Senate districts 2, 12, and 26, whose BVAPs were slated to fall from 60.6 percent to 50.3 percent, 55.4 percent to 50.7 percent, and 62.5 percent to 50.8 percent , respectively. The state submitted evidence showing that the point of equal opportunity—the level of BVAP at which a minority-preferred candidate has a 50 percent probability of winning—was 44.3 percent, and argued that each of these districts should therefore still offer black candidates a healthy chance of gaining office. The DOJ contended that the lower levels of BVAP in the redrawn districts would result in minority-supported candidates’ having a more difficult time winning election, and so the state had not met its burden of proving that the proposed plan would not harm black voters. The district court agreed with the DOJ and refused to preclear the plan. Georgia appealed, and the Supreme Court, in the case Georgia v. Ashcroft,4 ruled that the district court had not taken sufficiently into account the state’s avowed objective of increasing “substantive representation,” the degree of influence that minority voters have on policy outcomes, even at a possible cost to “descriptive representation,” the number of minority candidates elected to office.5 In its decision, the Court relied heavily on the testimony of black state legislators, including John Lewis, a civil rights leader and U.S. representative, who supported the plan as an attempt to maintain Democratic control of state government.6 The reaction to Georgia v. Ashcroft was swift and heated. Pamela Karlan (2004) denounced the decision as a first step toward “gutting” Section 5 preclearance . Others claimed that it “greatly weakened the enforcement provisions of section 5” (see Benson 2004, 488–9). An ACLU official’s reaction was that “the danger . . . is that it may allow states to turn black and other minority voters into second-class voters, who can influence the election of white candidates but cannot elect candidates of their own race” (Rhonda Cook, “Redistricting Rules Ease,” Atlanta Journal-Constitution, June 27, 2003, quoting Laughlin McDonald). Others viewed the decision more favorably: Henry Louis Gates wrote that “[descriptive representation] came at the cost of substantive representation —the likelihood that lawmakers, taken as a whole, would represent the group’s substantive interests. Blacks were winning battles but losing the war as conservative Republicans beat white moderate Democrats” (Henry Louis Gates, “When Candidates Pick Voters,” New York Times, September 23, 2004, A27). Despite these deep conflicts, a conventional wisdom is forming on some key points of interpretation: • In Ashcroft, the Court abandoned a previous, “relatively mechanical,” test for section 5 compliance that was based on the election of minority legislators alone.7 • It did so in favor of an amorphous concept of “substantive representation” that will be difficult to administer. 190 DESIGNING DEMOCRATIC GOVERNMENT GERRYMANDERS AS TRADE-OFFS 191 • Consequently, under this new standard states would essentially be free to enact any redistricting plan that they choose...