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What does “race blind” redistricting even mean?

Good question.

In states like Texas and North Carolina, Republican lawmakers in charge of redrawing the political maps for the next decade say that the new plans are “race blind.” Their opponents in court say that the claim is implausible and one that, in some situations, is at odds with the Voting Rights Act.

Several lawsuits, including from the Justice Department, allege that the maps drawn after the 2020 census discriminate against voters of color.

Between a 2013 Supreme Court decision that scaled back the federal government’s role in monitoring redistricting and a 2019 ruling that said partisan gerrymanders could not be challenged in federal court, voting rights advocates have been left with fewer tools to address what they say are unfair and illegal redistricting plans.

Meanwhile, lawmakers in the states where the redistricting legal fights have been most pitched have adopted an approach that claims that racial data played no role as they drew the maps for the next 10 years. Legislators say they’re avoiding the use of race data after decades of litigation where they’ve been accused of unconstitutionally relying on race to gerrymander.

“I don’t view this as a serious legal defense, but more of a PR defense,” said Thomas Saenz, the president and general counsel of Mexican American Legal Defense and Educational Fund, which is suing Texas lawmakers over their new maps.

Challengers to the maps say that such an assertion of “race blind” maps is dubious as well as a betrayal of states’ obligations under the Voting Rights Act, which prohibits racial discrimination in redistricting. The law requires that in some circumstances, map-makers must draw plans in a way that creates minority-majority districts where voters can elect the candidates of their choice. In lawsuits alleging a failure to comply with the law, states like Texas have been accused of drawing maps that instead dilute the votes of communities of color.

Legislators may be trying to “immunize” themselves from most of the claims that are used in court to strike down redistricting maps, according to Nate Persily, a Stanford Law School professor and redistricting expert.

“By saying race was not in the minds of the people who drew the lines, you potentially get out of those constitutional causes action that you are intentionally diluting the vote of racial minorities or that race was the predominant factor in the construction of a district,” Persily told CNN, adding that such an approach doesn’t shield map-drawers from cases alleging Voting Rights Act violations.

Lawmakers’ description of maps as “race blind” is both “political rhetoric” and “test case rhetoric,” said Ben Ginsberg, a former Republican redistricting lawyer who is not involved in the current lawsuits. “But still, the standard is you can’t dilute minority voting power and minority opportunity to vote for their candidates of choice. And by not using race data they run the risk of being found to have diluted minority voting strength from what’s in the current map.”

[…]

In tension with legislators’ obligations under the Voting Rights Act are the limits the Constitution — under Supreme Court precedent — put on the use of race in redistricting.

The Supreme Court has said, via the 1993 decision in Shaw v. Reno, that use of race as a sole factor in drawing districts unconstitutional in most circumstances. However, the Voting Rights Act presents the sort of compelling government interest that allows for race to be considered.

Jason Torchinsky — a Republican election lawyer who has defended North Carolina legislators in redistricting cases in the past, but is not involved in the current cases in North Carolina or Texas– told CNN that map-drawers have to walk the line between their VRA obligations and not running afoul of the Constitution.

“Legislatures have to use very localized data to determine if they are required to draw [Voting Rights Act] Section 2 districts,” Torchinsky said. “If they are, then they have to consider race in those parts of the states because they’re required to under the Voting Rights Act.” But when states aren’t required to draw VRA districts, Torchinsky said, the use of race could pose a potential Constitutional problem.

I mean, if SCOTUS hadn’t killed preclearance back in 2013, we wouldn’t be having most of this debate right now, because none of these extreme maps would have seen the light of day. The claim at the time that we didn’t need preclearance any more because racial discrimination was a thing of the past was ludicrous then and is beyond obscene now. The 2019 ruling that said SCOTUS was unable to deal with partisan gerrymandering claims, even as the lower courts had no trouble adjudicating them, was cowardly and shameful. Of course, we do have what could be a pretty good answer to all that sitting on the Senate agenda, if we can somehow manage to convince two loathsome Senators that American democracy is a bigger concern than arcane and anti-democratic Senate rules. Until then, the only thing you can count on is that something is legal if SCOTUS says it is, no more and no less. And down the rabbit hole we go.

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2 Comments

  1. Kibitzer Curiae says:

    BLOODY PERSONS WE-ALL

    The basic problem here is that “partisan gerrymandering” is not actionable, and that both parties in the current partisan duopoly are prone to engage in it for power preservation and incumbency protection purposes.

    What Dems fall back on naturally when they are NOT in the position to do the partisan gerrymandering themselves (unlike, say, in Harris County commissioners district redrawing) is playing the race card. Legal remedies potentially available under the VRA actually create the opportunity structure and perpetuate incentives to foment and propagate racial animosity and division, not to mention outright segregation (drawing of race-based districts reminiscent of “homelands” in RSA during apartheid, and trying to get federal courts to do it when those in control of redistricting won’t do it).

    The pernicious premise here is that designated minorities (previously “Coloreds”, now “People of Color”) are “others” and all such others are somehow alike in their collective interests and their otherness. Not to mention that this clamoring for racially pure or tribal majority districts does nothing to alter the minority status of various groups in statewide elections.

    WHAT’S THE ALTERNATIVE?

    The solution would be proportional representation (PR) as an electoral system as practiced in many other nations. One-on-one constituency representation could still be maintained if half of the seats in the Lege were filled through district contests while the remainder is allocated to parties in proportion to their statewide vote share (adjusting the additional number of seats apportioned to each party to take into account the seats already won by the party’s candidates in district races). 

    In such a system smaller parties would also have a chance to gain some representation once they can aggregate their scattered state-wide support at the all-state level rather than having to win a majority/plurality in a local single-member district. The latter can only be accomplished through geographic/residential concentration of group/class members (or manipulation of district border drawing as a substitute for compactness). And it presumes, of course, that there is political cohesiveness in the group and corresponding block-voting behavior.

    The presence of smaller parties in the legislative body would create a need for compromise and accommodation in the legislative proceedings, rather than the majority party in a two-party situation simply imposing its will, doing whatever it wants. 

    And to the extent that tribalism is a thing, tribal party formation is not foreclosed under PR. Sumerian-Americans, Amazonians, Lesbosians, and Barbarians, to name a few examples by way of hypotheticals, could each form their own political party and put together the ranked list of candidates for the PR-component of the seat allocation based on state-wide vote share. Not to mention the potential for trans-people alliances: The aficionados of Asterix and Cleopatra, for example, could make common cause and campaign together to promote a different version of civilization without Ceasar’s ideas of pacification or pizza. Not to mention their respective pure-bred descendants reaching the conclusion that cross-trench friendship has its benefits, along with the sheer joys of a little interbreeding.  

    OBSOLESCENT TERMINOLOGY  

    In 2022, we should consign the “person of color” nonsense to the dustbin of history, along with the Ahnenpass (Aryan ancestry proof document in the Third Reich) and the “For Coloreds Only” water fountain placards.

    As long as we breathe and pump blood, we are all persons and all person of color. The relevant color being red, thanks to the iron atoms that play a key role in the transport of life-sustaining oxygen throughout the human body. 

  2. Mainstream says:

    An alternative to proportional representation put into use in a few jurisdictions is to elect all council or board members at large, but to allow the voter to vote all of his votes for a single candidate or share them among multiple candidates. In a 9 member board like HISD, this would mean that a voter could choose to give one candidate all 9 of his votes or 7 to one candidate and 2 to another, or one vote to each of nine candidates, as examples. The advantage of the system is that a minority group or special interest group does not need to live geographically together to gain political power in such a system. The disadvantage might be to end up with a board of extremes who yell at each other, but the system is not used widely enough to have much data on that, yet.