An Update on Voting Changes in the SouthBy Staff
Vol. 4, No. 2, 1982, pp. 5-11
Since last summer, when legislative committees began meeting quietly and computers started humming, reapportionment in the South has charged into the political thicket like a herd of . . . well, elephants, some white Southern Democrats are now claiming, creating thunderous noise along ancient paths. Even as the campaigns approach, Southern legislative leaders hold fast to the belief that redistricting plans must protect incumbents and cap, if not minimize, minority voting strength.
An unexpected obstacle in the path of Southern reapportionment has been the Justice Department, which reviews all voting changes--including redistricting--in eight Southern states. Empowered by the Voting Rights Act, the Attorney General (in practice, the Assistant Attorney General and the staff of the voting rights section) is required to disapprove a voting change if the local or state government fails to prove that its plan is not racially discriminatory in purpose or effect.
The surprising fact is that the Reagan Administration's Justice Department has enforced this provision and disapproved of statewide redistricting plans in Georgia, South Carolina, North Carolina, Virginia, and Texas. While approving a congressional district plan in Alabama, Justice is expected by inside observers to object to statewide plans in Alabama and Louisiana. It hasn't acted in Mississippi yet.
In the face of the Reagan Administration's weakening position on renewal of the Voting Rights Act, tax laws for segregation academies, and other civil rights issues, this string of objections is unique, if not miraculous. While civil rights lawyers are cautious in commenting on the pattern, Southern Democrats in the state Legislatures say the motivation is an opportunity for Republican political gains.
For example, some white North Carolina Democrats from Charlotte, Raleigh, and Greensboro charge that Justice's interest in single-member districts stems from a political awareness that Republican candidates in suburban areas will be helped by the creation of majority black districts in urban areas, leaving white Democrats with out a majority in much of the metropolitan area.
Some white Democrats in Georgia echo that sentiment as they now protest Justice's objection to a 57 percent majority black congressional district which the state legislature passed as it turned down a 69 percent district. "The Republican Administration is interested in getting rid of two white Democrats," an administrative assistant to a Georgia congressman said, "and replacing them with a black and a Republican."
Southern black state legislators (who are without exception also Democrats) counter these arguments with a string of facts about specific redistricting plans. They note that while objecting to several Southern redistricting plans, Justice often stops short of disapproving of most of the districts which were drawn to cancel or reduce black voting strength. In Georgia the legislature adopted a plan that will reduce by one the number of majority black districts in Atlanta and failed to draw several majority black districts in the rural Black Belt. In its objection to the plan, Justice did not disapprove of these districts but focused on three districts elsewhere. "It's more of an approval than a disapproval of discriminatory districts," says State Rep. Tyrone Brooks about Justice's actions-in Georgia.
Moreover, despite possible Republican gains in some redistricting, white Democratic legislators have diluted black voting strength in places where Democrats would be replaced not by Republicans, but by other Democrats. Here the winning Democrat would, however, be a black. And there lies the rub.
From Virginia to Texas, legislatures have drawn districts in rural, heavily black or Hispanic areas that reduce or maintain at a low level the voting strength of a majority of non-whites. This pattern appears throughout the South's Black Belt despite the fact that the population of this rural, predominantly black area has increased in several states. The Alabama legislature's plan shaved off enough percentages in five existing districts with at least 60 percent black population so that blacks in the proposed districts do not have a voting majority. Almost every Southern state adheres to similar practice.
In recent weeks the federal courts have begun to intervene in state reapportionment, usually issuing orders for new plans where the state is unable to adopt a lawful plan in time to get the 1982 elections underway. While the
Page 6courts have been seen as a major protection for black voting interests in the past, the early court orders in Southern reapportionment show no substantial promise that the courts will offer sweeping remedies for black voters. In South Carolina, a federal court has adopted the congressional plan which the lower chamber of the South Carolina legislature had passed over the objections of the legislative black caucus. In Texas, the two court orders for congressional and state house redistricting offer a mixture of improvements and disappointments for minority voters. Lawsuits asking for court orders in other states are pending in Virginia, North Carolina, South Carolina, and Alabama.
Below is a summary of the reapportionment efforts in the 11 Southern states.
Air traffic between Montgomery and Washington D.C., has been heavy in the last few weeks with several confabs between legislators and Justice Department officials. Legislators and attorneys representing the state have met with U.S. Assistant Attorney General William Bradford Reynolds and his staff several times, and legislative black caucus members as well as civil rights lawyers and community leaders have also journeyed to Washington to urge objections to the reapportionment plans for the state house and senate.
The groups voicing opposition to the state plan include the NAACP, ACLU, Common Cause, Alabama Democratic Conference and the League of Women Voters. These groups opposed the plans during the special session last fall and have protested both the plans and the closed-door decisions that developed them.
Recent data from the Alabama legislative staff indicate the state plan proposes to reduce black voting strength at the polls not only in the Black Belt but in districts presently held by black incumbents elsewhere. In the Black Belt, white State Rep. Bill Edwards's district is reduced from a 70 percent black majority to 50 percent. Rep. Rick Manley's district is reduced to 59 percent and Rep. Leigh Pegue's district drops to 55 percent black. Both are presently above 65 percent. Manley served as chairman of the reapportionment committee and has been one of the principal lawmakers visiting Washington.
In urban areas the black percentages in some districts are also significantly reduced. Rep. Yvonne Kennedy, chairwoman of the legislative black caucus, saw her Mobile district go from 80 percent to 69 percent black and black State Rep. Bill Clark's district in the Mobile area was also reduced from 90 to 68 percent black. In the Birmingham area, the reapportionment plan goes even further. It eliminates a black district--thus pitting two black incumbents against each other. Another district previously more than 60 percent black will be only 53 percent black. All told, the proposed plan would eliminate as many as five districts where black voters could elect responsive candidates.
A group of Alabama citizens has filed a federal court suit in Montgomery, alleging the plan violates "one person - one vote" and the voting rights of blacks. Meanwhile, Justice has granted the state an extension until April 15 to explain its plans. Capitol insiders suggest that legislative leaders are ready to compromise and are developing plans which they hope will appease Justice and minority objections.
The Justice Department recently approved the Alabama Congressional plan which was not the subject of controversy.
Declaring that the plan violated the constitutional doctrine of "one person - one vote," a federal court struck down the Arkansas congressional reapportionment plan which had proposed hardly any changes from the 1970 plan. The court is forcing the legislature to try again to hold the differences between the populations of each district to reasonable limits.
But it is legislative, not congressional reapportionment that continues to be the subject of talk by activists in Little Rock. Civil rights advocates still hope to challenge the state legislative redistricting plan which is a mixture of single and multi-member districts. For the last several years the Arkansas legislature has had only three or four black members.
"It's that damn 'purpose'," explains the head of a biracial lobbying group in Little Rock. "We know one of the primary purposes of the plan was to minimize the black vote in legislative races, but proving it was the purpose has us stumped for now." Arkansas is not covered under Section 5 of the Voting Rights Act and the congressional and state plans need not be submitted to Justice for approval. In court, plaintiffs are required to prove both the purpose and effects of racial discrimination in voting cases.
In early March, the Justice Department notified Georgia officials that it was maintaining its original objection to Georgia's congressional plan, where the dispute centers around a majority black district in the Atlanta metropolitan area. State officials promptly challenged Justice's objection in federal court in Washington.
The plan submitted to Justice unsuccessfully includes a fifth district that is 57 percent black. This was adopted during the special session last summer only after the state house refused twice to accept a congressional plan passed by the Georgia senate that included a 69 percent black district. Black legislators vehemently objected to the compromise plan which passed the senate by only a few votes and over the objections of Georgia's two black senators, Horace Tate and Julian Bond, as well as the senate minority and majority leaders.
Justice objected also to parts of the state house and senate plans. The General Assembly then changed the house and senate plan to meet the requirement from Washington.
In the senate, Justice's objection included two districts, one in metropolitan Atlanta (DeKalb County) and the other in Augusta. The legislators changed the DeKalb district to increase the black percentage to nearly 70. The Augusta district was drawn to increase the black population to 53 percent. The latter district is the seat of Senate majority leader Tom Allgood.
In the house Justice's objection was to the Dougherty County house seats in southwest Georgia. Though the
Page 7county's black population has grown by nearly 10 percent in the last few years, reapportionment created only one black house district--the one which now has a black incumbent. Black legislators and community groups protested the dilution of minority voting strength in the rural Black Belt of Georgia, particularly the area around Dougherty. The Dougherty plan was redrawn to create two black districts--one with a 69 percent black majority and one with a 59 percent majority.
State officials' refusal to cooperate on the congressional issue was the result of pressure from lame-duck Gov. George Busbee and newly appointed state attorney general Michael Bowers. Bowers must run for election in the fall.
A three-judge panel has been appointed for the state's appeal in Washington and the Georgia legislative black caucus has intervened along with private citizens. The NAACP is also requesting the right to intervene. Although the state opposed intervention, the judges ruled on March 22 in favor of the caucus and private plaintiffs.
State Rep. Billy Randall, chairman of the black caucus, criticized the the action by-Bowers and others as continued discrimination against minorities, but he is equally dissatisfied with Justice's objection. Randall believes the objection did not go far enough in disapproving dilution of black voting strength in house and senate districts in the Georgia Black Belt.
In Florida the battle lines on reapportionment appear to be drawn as clearly between the house and senate as between the legislature and community groups. Unlike most states, Florida's two legislative houses have been unable to reach a "gentlemen's agreement" where each house will draw up its own plan which would be adopted automatically by the other. The result is the development of house and senate plans by both houses. And none agrees with any other.
Though there is disagreement between the two bodies, both have created plans with single-member districts for the first time in Florida reapportionment history. Both house and senate plans have kept the total population deviation to less than two percent in each district. Legislators believe both these actions will protect against possible lawsuits.
One major disagreement revolves around the "nesting" of districts--a device which places a few house districts within the "nest" of a larger senate district. Alabama has used such a plan since its last reapportionment. Florida's house supports such a concept, but not the senate.
Another disagreement between the houses is the senate election schedule. Florida's senate members are elected for four-year terms, one-half elected every two years. The senate would like to have the senators elected in 1980 serve until 1984 and then run under new district lines. The result would be that only half the senators would have to run in November under the reapportioned districts. The house has refused to agree to such a plan amid rumors that a number of house members are interested in a senate seat.
Florida's constitution allows from 80 to 120 house members and between 30-40 senators. Here the senate and house also disagree. The most recent senate plan creates an 80-member house. But the house plan (which is expected to eventually be accepted) calls for a 120member body--its present size.
The disputes between the two houses have spilled over to community groups involved in reapportionment. The NAACP supports the senate's plans and Common Cause has backed the house's plans. The groups have developed individual alternative plans with only limited support for each other's actions.
Common Cause developed a plan which some black legislators and NAACP leaders believe will result in fewer voting-majority black districts. Common Cause maintains that its plan creates the most minority districts in the house (nine black and four Hispanic districts with over 50 percent minority populations). While admitting that its criteria for a "black or Hispanic" district is 50 percent or more minority population, Common Cause maintains that it has taken into account "population growth, voter registration, and voting patterns." In most Southern states the minority population eligible to vote is usually 10 percentage points below the total minority population.
The house plan presently includes seven districts with 58 to 80 percent Hispanic population--all in the Miami area. Only two districts are more than 65 percent Hispanic. The plan includes seven black districts between 52 and 73 percent, and three black districts between 43 and 49 percent. Only one district in the Miami area is 65 percent or more black. The others are scattered throughout the state. A major concern of community groups is the lack of consideration shown to Florida's Black Belt, the area surrounding Tallahassee.
The Common Cause plan allows for a 53 percent majority-black district including Leon County in the Black Belt. The plan also includes a 56 percent black district in metropolitan Miami where the house plan creates a 45 percent black district. Five blacks and two Hispanic legislators now sit in the Florida house.
Senate plans passed by either house include two Hispanic districts over 50 percent around Miami. The house plan creates a district that is 65 percent Hispanic while the senate plan calls for a 61 percent district in its own chamber. Both plans create a district around Jacksonville that is 47 to 48 percent black.
Community groups have indicated that there is little likelihood of creating congressional districts with more than 35 percent black population.
The Justice Department could decide before the end of April if the Louisiana congressional redistricting plan violates the Voting Rights Act. Civil rights groups and the senate legislative black caucus, who supported a majority black congressional district during the last legislative session, have filed comments against the state plan which divides the parish of New Orleans almost in half.
In its pleadings before Justice, the black caucus notes that, were it not for the governor's veto, Louisiana would now have a plan with a majority black congressional district composed of the Orleans parish. Late last year when the Democratic legislature adopted a 55 percent black district, Republican Gov. Dave Treen vetoed the bill. Quickly abandoning the majority black district, the legislature drew the plans to adhere to the governor's objections. That plan passed and is now before Justice.
Reapportionment plans for the two houses of the state legislature are also before Justice, which asked in March for more information about their origins. Objections are also being raised to these plans which create 14 legislative districts with 50 percent or more black populations. To illustrate that the plans effectively dilute black voting strength, the black caucus has developed an alternative plan that creates 20 legislative districts with a majority of black registered voters.
Some observers believe the congressional plan may test the willingness of Justice to enforce Section 5 regardless of party politics. Much of the case against the congressional plan focuses on the veto of Gov. Treen, one of the few Republican governors in a Southern state covered by the Voting Rights Act. "No case I've seen before Justice better evidences that a plan was rejected by the legislators because it helped urban blacks," commented a lawyer working with a legal defense fund in Washington. "We'll see if Justice sees the evidence differently because of Treen."
Schooled in more than a decade of litigation opposing fair reapportionment, the Mississippi legislature has proceeded with redistricting its two houses and five congressional seats with a wealth of computer runs and detailed maps and a careful avoidance of any plan that increases the potential for added voting strength of blacks. Turning back efforts of the legislative black caucus to create a majority black congressional district, leading state lawmakers appear willing to assure black incumbents of their seats, to limit majority-black districts to the number provided in the existing court-ordered plan, and generally to adopt "a holding action," in the words of one veteran civil rights worker in Jackson.
The fight over the congressional plan late last year centered on the creation of a majority-black district from the Delta counties. Several plans were proposed in hearings and on the floor of the legislature which had districts with black populations ranging from 53 percent to 65 percent. All began somewhere in the Delta counties and the "65 percent" proposal by black State Sen. Henry J. Kirksey encompassed part of the Delta and the city of Jackson.
The congressional plan, approved by a 4 to 1 vote, maintained the character of the existing congressional districts. The new plan is now before the Justice department and is being opposed by members of the black caucus and statewide civil rights groups.
The likely reapportionment plan for the two state houses will maintain 46 majority-black districts in which 17 incumbent black legislators now reside. Of the 46, only 2S house and senate districts will have black majorities of 60 percent or more, a critical fact in a state where the black registration rate is usually 10 to 15 percentage points below the general population. Sen. Kirksey has proposed alternatives to the state plan but has been unable to convince a substantial number of his colleagues that his plan better avoids dilution of black voting strength. "Too many of the districts that are majority black barely hang over the 50 percent line" remarked David Green, a member of the legislative black caucus. "These districts just appear to be majority black when they really aren't."
Challenges to the redistricting plans for the legislature before Justice and the courts are also expected in Mississippi.
With the advice of former U.S. assistant attorney general Jerris Leonard, North Carolina state lawmakers passed their third set of reapportionment plans in March, combining historical multi-member districts with a few single-member districts which they hope will satisfy the Justice Department's earlier objections. Lawyers for the NAACP Legal Defense Fund, however, are predicting another Justice objection to the new state house and senate plans.
While a lawsuit in the mid-1960s required the redistricting of the general assembly, North Carolina had been immune to much of the disputes over redistricting that spread across the South in the 1970s. Its recent problems began when the NAACP Legal Defense Fund filed suit in federal district court in Raleigh challenging the state legislative plans, the congressional plan, and a state constitutional amendment passed in 1968 requiring that all state legislative districts follow county lines. That amendment had not been submitted for approval to Justice as required under the Voting Rights Act.
Justice found late last year that the requirement diluted the voting strength of blacks and disapproved it. Meanwhile, legislative leaders were convinced that the differences in population among the various legislative districts were greater than the courts would permit under the "one person - one vote" constitutional theory. Thus, the general assembly reconvened and passed a new plan for its state house.
The old state senate plan and the new house plan were then submitted to the Justice Department which found that both followed the 1968 amendment and diluted black voting strength. Justice also found that the congressional plan had the purpose of diluting black voting strength by eliminating Durham, a center of political activity for blacks, from the second congressional district that has a black population of over 40 percent.
In early February, North Carolina lawmakers returned in special session and adopted a third set of reapportionment plans and for the first time created some single-member districts which crossed county lines.
No other issue seems to have caused as much stir in North Carolina legislative politics in recent history. "Some of us are being sacrificed on the altar," said State Sen. Melvin Daniels who represents part of the northeastern section of the state. The new house plan creates two majority-black districts and the senate plan has one 52 percent majority-black district. The legislature carefully avoided drawing single-member districts in the metropolitan areas such as Charlotte Winston-Salem, and Raleigh, since those areas are not covered under section 5 of the Voting Rights Act.
J.K. Butterfield, a black leader from northeastern North Carolina, presented a reapportionment plan at a public hearing which would create a total of nine majority black districts in the house and senate. But his plan was never introduced. For a time, the legislature did consider creating another majority-black senate district but apparently decided one was enough.
The new congressional plan was approved in early March and may prompt a black former U.S. attorney from Durham to challenge incumbent U.S. Rep. L.H.
Page 9Fountain in the Democratic primary.
Several observers are predicting that by mid-April the Justice Department will bar the use of the third set of state legislative plans. While state officials have threatened to appeal an adverse ruling by Justice to the federal courts in Washington, the legislature passed a new bill providing for four different possible dates for primary elections--all hinging on when a state house and senate plan would become lawful. That law, too, is now before Justice.
In a surprising decision, a federal court panel adopted in early March a congressional plan for South Carolina which had been passed earlier by the state house of representatives but not by the state senate. The NAACP, which had filed suit asking the court to draw the congressional lines, protested the court's opinion and promised to appeal the decision and seek an objection from the Justice Department.
The court-ordered plan makes few changes in the present congressional districts, although it does split Berkeley County, a suburb of Charleston. The division of the metropolitan area into two congressional districts rubbed some powerful state senators the wrong way, and they refused to approve the plan when it was before them.
The NAACP has presented to the federal court a plan that created a district with a majority black population. In a hearing on the issue, senior district judge Charles E. Simons attacked the NAACP plans as "gerrymandered to give more than 50 percent blacks." The state house plan which the court has embraced has no congressional district with more than a 40 percent black population.
State legislative officials are moving rapidly to have the new plan implemented. State senate judiciary committee chairman L. Marion Gressette, one of the most powerful men in South Carolina politics, contends that the court plan need not be submitted to Justice for review under the Voting Rights Act. Civil rights lawyers disagree, and another legal battle may develop.
While the South Carolina legislature hopes that it may be near the finish line with congressional reapportionment, it still faces the task of drawing new lines for its own two houses. Justice disapproved the first plan of the state house because of the discriminatory effects of district lines, primarily in the Black Belt areas where the legislature systematically leveled the percentages of blacks.
The state senate hasn't even begun to consider a redistricting plan. The all-white legislative chamber is postponing the task on the apparent hope that it can secure Justice approval of a plan more easily later in the year. Some black leaders, including members of the legislative black caucus, have charged that the state senators hope the Voting Rights Act will be weakened before the fall and that a plan without any majority black districts would be subjected to less scrutiny under a new act.
The all-white senate has been a subject of challenge for the past few years. The Carter Administration's Justice Department filed a federal suit challenging the present districts of the state senate but withdrew the suit after the Supreme Court's 1980 Mobile opinion, which now requires black plaintiffs to show that voting practices have both the effect and purpose of racial discrimination.
A plan submitted to Justice under the present Voting Rights Act's Section 5, however, requires the state or local government to prove that the plan does not have the purpose or effect of racial discrimination.
Tennessee is the only Southern state which has passed redistricting plans that aren't facing serious-legal challenges. Not covered by the preclearance provisions of the Voting Rights Act, Tennessee also has had the advantage of adding a congressional seat to its delegation instead of fighting to determine who must be eliminated.
Early forecasts had warned that U.S. Rep. Harold Ford of Memphis, one of only two black congressmen in the South, would be gerrymandered out of his strongest support in western Tennessee. The fears proved unfounded, and Ford apparently is now assured of reelection.
After months of almost daily developments, two separate federal courts in Texas have issued orders establishing the boundaries of both congressional seats and the state's general assembly for the 1982 elections. While the orders are under appeal, they bring into focus disputes that have involved lawyers, politicians and judges throughout the state.
In the last few months a scorecard on Texas reapportionment has required two or three sheets just to list the major players: the Democratic legislative leadership, the governor, a handful of state officials on the legislative redistricting board, a couple of state court judges, six federal court judges, Hispanic and black civil rights groups, and a couple of dozen lawyers representing all sides.
Despite such a large cast in what the usually well-modulated editor of the Texas Government Newsletter calls "arcane legal machinations and Byzantine maneuverings," Texas redistricting has evolved around the three major issues of reapportionment. Will Republicans or Democrats gain? Will incumbents protect their own offices? And will racial minorities get a fair chance to elect representatives of their own choosing? Nobody has won all or lost everything but, if the court-ordered plans remain, blacks and Hispanics will probably have lost most.
Before the reapportionment last year, Hispanic leaders had maps showing how a congressional district with a majority Hispanic population should be drawn in southwest Texas because of increased population. The general assembly balked, and no such plan was included. While Justice found the congressional plan in violation of the Voting Rights Act and, more recently, a federal court in Austin has drawn a new congressional plan, the majority Hispanic district is still nowhere on the maps.
The state legislative plans drawn by a Dallas three-judge panel do improve the voting strength of Hispanics
Page 10around San Antonio and El Paso but fail to avoid diluting black and Hispanic voting strength in the urban areas. The plan is "temporary" since the state legislature will have to try again in 1983 to adopt its own plans that meet constitutional muster.
Federal court intervention was required largely by the upcoming May 1 primary in Texas. In order for candidates to register and run for office they had to know what districts would be lawful.
While reapportionment will now be decided in the federal courts, the May 1 primary remains an uncertainty in the face of appeals and further challenges to the orders of the three-judge panels. More developments are expected daily.
In mid-March the fifth redistricting plan drawn by the Virginia House of Delegates was rejected by the Justice Department in a decision which prompted the
Page 11Democratic leader of the statehouse to advise the feds to "stick it up their ear." Civil rights lawyers immediately filed a motion asking that the federal court in Richmond take over the job of redistricting the state legislature.
In its March objection Justice found that the legislature diluted black voting strength in rural southeastern Virginia, Newport News, and Norfolk. In the rural areas the legislature divided black communities in order to assure that only one candidate would be elected by blacks in areas where at least three majority black districts could be created. In Norfolk Justice disapproved of the only remaining multi-member district in the Virginia plan. Justice found that the multimember districts subsumed black voters in a larger district where candidates who won would always be the choice of the white majority.
The ruling was a victory for the ACLU, NAACP, and the SCLC, which had challenged the Virginia legislature at every step in court and before Justice. NAACP leader Jack Gravely called upon the legislature to end the "spectacle and waste of the taxpayers' money." Judy Goldberg of the ACLU said, "Let the courts do it."
The federal court in Richmond found the first plan adopted by the legislature as unconstitutional in violation of the "one person - one vote" constitutional theory. The Justice Department also objected to the plan. Another plan was vetoed by then-Gov. John Dalton.
Four blacks presently sit in the Virginia House of Delegates from majority black districts. ACLU Director Chan Kendrick says that number can be more than doubled if the federal court adopts the plan which his group has drawn.
This report was prepared by the staff of the Southern Regional Council.