States create few new minority districts in redistricting so far

2021-11-23 | Roll Call

Alabama recently approved a new congressional map that preserved the state’s historically Black district but it immediately faced allegations it still discriminated against minority communities.

It’s a pattern playing out in other states, too. While much of the nation’s population growth over the past decade came in minority communities, advocates say they are not seeing their potential influence over House elections grow as well.

“You have states that have drawn maps that failed to create additional majority Black or Latinx districts statewide that fairly reflect the voting strength of those communities,” said Sophia Lin Lakin, deputy director of the American Civil Liberties Union’s Voting Rights Project. “That’s true despite the demographic changes in those states.”

The Hispanic or Latino population grew to 18.7 percent, or 62.1 million, of the 331 million national population, according to results from the 2020 census, and the Black, Asian and mixed-race population grew significantly as well. The U.S. white-alone population fell below 60 percent for the first time in the nation’s history.

Yet, only a handful of new minority opportunity districts have been drawn nationwide so far. Under the federal Voting Rights Act, congressional and state legislative maps can include districts where identifiable minority communities have a greater opportunity to elect candidates of their choice.

Advocates note this is particularly acute in states once covered by the Voting Rights Act’s preclearance regime, which subjected them to Justice Department oversight because of their history of discriminatory voting practices against minority voters. Until a 2013 Supreme Court decision, the Justice Department could object to maps that took away the voting power of minority communities.

Last week, a lawsuit filed by the Southern Poverty Law Center argued that Alabama had “packed” the Black population into the district of Rep. Terri A. Sewell and “cracked” the remaining voters among three other districts in the state to dilute their power.

Felicia Scalzetti, an organizer with the Alabama Election Protection Network, said the state legislature “kept the core of the racist maps of 2011” in drawing its new plan.

“Alabama is becoming increasingly diverse, becoming increasingly nonwhite. And as that continues as we keep this core of these 2011 maps, that’s going to become increasingly beyond the point we need more for equity,” Scalzetti told reporters last week.

Between 2010 and 2020, Alabama’s population grew 4 percentage points less white, with the Hispanic or Latino, Black, Asian and some other race population making up the increase.

Minority residents made up an even larger proportion of the growth in Texas, a former preclearance state where almost 2 million of the state’s 4 million new residents came from Hispanic, Black and Asian American communities. But even as it picked up two additional House seats, no additional districts were created where minorities could have an opportunity to sway an election. The state now faces federal lawsuits alleging Voting Rights Act violations.

Drawing districts is a complicated process that involves specific local conditions that may not reflect national trends. Courts have ruled that litigants have to identify, either through statistics or extensive on-the-ground testimony, a cohesive community with polarized voting.

Jason Torchinsky, a GOP lawyer who handles redistricting cases, said mapmakers face a bind in VRA cases.

“If they consider race, when they’re not required to by the law, then they get accused of engaging in intentional racial discrimination. If they don’t consider race enough, and they fail to draw majority-minority districts where they had to, they get accused of violating Section Two of the Voting Rights Act,” Torchinsky said, referring to how lawmakers have to draw maps for minority communities.

He noted that states like North Carolina faced several dynamics in drawing its new congressional maps, including having to fit a new congressional seat.

In announcing his retirement last week, longtime North Carolina Rep. G.K. Butterfield laid the blame at the feet of state lawmakers, who redrew his predominantly Black, solidly Democratic district into a more competitive one. The Black voting age population dropped below 40 percent in the new district as rural areas of the northern stretch of the state were added.

Butterfield, whose district had been 44 percent Black and 9 percent Hispanic and reelected him with 55 percent of the vote in November, called the new map “racially gerrymandered” in his retirement announcement. “It will disadvantage African American communities all across the 1st Congressional District,” he said.

North Carolina, which already faces a federal lawsuit alleging the mapmaking process violated the Voting Rights Act for failing to consider the racial demographics of voters, was not covered in the old Voting Rights Act preclearance regime. However, the state’s maps would have been covered by some aspects of Democratic attempts to revamp the 1965 law.

Congressional inaction

Congress’ effort to pass a new Voting Rights Act — to reinstate preclearance and establish new standards for what qualifies as redistricting discrimination — has stalled in the closely divided Senate, however.

The House passed a new version of the Voting Rights Act in August. An October Senate vote to advance the legislation received the support of one Republican, Sen. Lisa Murkowski of Alaska, but fell short of the 60-vote threshold needed to pass.

The bill is designed to respond to several Supreme Court decisions, including the 2013 Shelby County v. Holder decision that invalidated the mechanism for the Justice Department to preclear election law changes, and the Brnovich v. Democratic National Committee decision from July that restricts when an election change that causes a disproportionate impact to minority communities violates the law.

[Supreme Court weakens another Voting Rights Act provision]

After the vote to advance the legislation that fell short last month, Senate Majority Leader Charles E. Schumer, D-N.Y., said efforts within his party would continue.

“Just because Republicans will not join us doesn’t mean Democrats will stop fighting,” Schumer said. “We will continue to fight for voting rights and find an alternative path forward.”

Anthony Gutierrez, the executive director of Common Cause Texas, told reporters last week that absent congressional action, his state may continue to pass maps that dilute the power of minority communities even as the state continues to grow more diverse.

“This pattern, where groups like ours have to keep going to court every 10 years over maps that violate minority voting rights is just going to keep happening unless we get that action from Congress,” Gutierrez said.

Mapmaking continues

In the meantime, states are rushing to finish redistricting in time for next year’s midterm elections.

Illinois is among a handful of states that have drawn new maps to explicitly include minority opportunity districts, such as a new Hispanic-majority seat in Chicago. That map was drawn by the Democratic majority in the legislature.

So far, states have finalized maps covering a little more than 100 seats in the House with a flurry continuing in the coming months.

Among states formerly covered by preclearance requirements under the Voting Rights Act, Texas and Alabama have finished their redistricting. Both face lawsuits alleging the congressional maps or state legislative maps violate the VRA. On Monday, Georgia’s legislature sent its map, which would give Republicans a one-seat advantage, to the state’s Republican governor. Among the rest, Arizona, Virginia, South Carolina, Mississippi and Louisiana may not finish soon. Alaska, the last preclearance state, has a single at-large congressional seat.

The suburbs of major cities like Atlanta are getting more diverse, but not in the same way they were half a century ago shortly after federal civil rights law made housing discrimination illegal. Torchinsky said the requirements of the VRA, which include identifying a geographically distinct community, don’t necessarily line up with the way Americans are living today.

“So what you’re finding is less concentrated minority population in most places living in the same small geographic area than you had even 10 years ago. So, you know, in some ways you’re drawing and maintaining majority minority districts is actually getting harder,” Torchinsky said.

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