Drawing the Lines: A Reapportionment PrimerBy Brian Sherman
Vol. 5, No. 5, 1983, pp. 12-18
Reapportionment occurs, or at least should occur, every ten years--when the results of the population census are released. Three years after the 1980 census, some jurisdictions (states, counties, municipalities) have not yet completed their reapportionment plans. Other plans have become the subject of lawsuits which will take many months to resolve. Groups such as the Voting Rights Project of the Southern Regional Council have continued to review reapportionment plans of state and local governmental bodies in the South, to assist community groups who are fighting discriminatory plans and to develop, upon request, alternative plans.
Many jurisdictions in the South persist in using reapportionment as a means to prevent blacks and other minorities from full political participation. Blacks tend to be severely underrepresented at every level of government. There are still many counties and cities where blacks constitute a majority of the voting-age population but whose elected officials remain all white.
Most visibly, there are no black governors and no black U.S. senators. Only two blacks--one from Texas, the other from Tennessee--sit in Southern delegations to the House of Representatives. Only 5.9 percent of the members of state legislatures in the Old Confederacy are black, whereas the black population of these states is 19.7 percent. Only forty-six municipalities, of all sizes, in these
Page 13states have black mayors. Invariably, blacks win election only in jurisdictions or districts which are clearly majority black and only after they have overcome various impediments placed by established white power structures.
In recent years, the major obstacle to black representation has been white bloc voting in combination with either at-large or unfairly apportioned election districts.
In developing standards for enforcement of the Voting Rights Act, the U.S Department of Justice (DOJ) has come to recognize that, at present, the only blacks will win representation is by election in districts which are majority black. Consequently, DOJ has defined a fair reapportionment plan as one in which the percentage of majority black districts in a jurisdiction comes nearest to the percentage of blacks in the population. If a county, for example, has a five-member elected commission and a population which is 41.6 percent black, a fair plan will provide for two of the five districts (forty percent) to be majority black.
The Department of Justice defines a "majority black district" as one whose population is at least sixty-five percent black. This figure takes into account the greater percentage of blacks than whites in a jurisdiction's population who are under voting age and the fact that blacks usually have lower registration and voting rates than whites. These lower rates can be partially explained by the greater number of blacks than whites who are poor. Poor people are less likely to be able to leave work to register, less likely to have transportation to distant registration and polling sites and less likely to be members of special interest groups which have the money to mobilize their members.
In addition, the legacy of terror and oppression to which blacks have been subjected is perpetuated by intimidation, threats and other abuses. Many thwarting devices remain. Inaccessible registration sites and polling places, uncooperative registrars, menacing poll-watchers, discriminatory purges of the voting rolls and absentee ballot abuse are some of the most frequent obstacles faced by blacks.
Since 1965 all of six Southern states (Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia) and parts of three others (Florida, North Carolina, and Texas) as well as all of the counties and municipalities in them, have been required by Section Five of the Voting Rights Act of 1965 to submit any proposed changes in any aspect of the electoral process to the Department of Justice for preclearance. The jurisdiction must submit a description of the planned change along with evidence to show that the change will not discriminate against blacks or other minorities. If Justice agrees, the change is precleared and can go into effect; if it is considered discriminatory, the Assistant Attorney General for Civil Rights will write an "objection letter" informing the jurisdiction that the plan is not precleared.
When a jurisdiction receives an objection letter, it should withdraw the proposed change and offer a new, non-discriminatory, plan to the Department of Justice. Ideally, blacks will be included in discussions leading to the development of a new plan. They will negotiate with white leaders to reach an agreement. Often a consensus is arrived at because whites realize they will be vulnerable to a lawsuit unless a fair plan is developed. Predictably, if a plan has received the support of both blacks and whites in the jurisdiction, Justice will preclear it.
Often however, white leaders will refuse to negotiate with blacks. Some jurisdictions make no changes even after receiving an objection from Justice. Other jurisdictions don't even bother to submit their plans for preclearance at all. In either case, the plan goes into effect. Other than preclearing or objecting to plans, the Department of Justice rarely takes an active role in the reapportionment process. Local black leaders who have carefully monitored the reapportionment process and find a proposed change to be discriminatory often have to initiate litigation in order to stop a discriminatory plan from going into effect.
There are some three thousand jurisdictions in the South with significantly large black populations. Even a Department of Justice with officials at every level who are determined to enforce the Voting Rights Act would have a difficult time assessing all of these plans for discriminatory intent or effect. Their task is made more difficult by the professionals (lawyers, demographers) often hired by jurisdictions to prepare elaborate materials purporting to show that the submitted plan is not discriminatory. Unless local black leaders are aware of what the jurisdiction is doing and communicate with DOJ directly or through civil rights groups, the Justice official assigned to the case may see no reason to believe the plan may be discriminatory. Having only sixty days to review the plan, the official may find no justification for any other action besides preclearance.
The attitude of the President and the Justice Department is critical. An obviously discriminatory plan may still be precleared if the Justice Department has other things on its mind. This was the case after the 1970 census when the Department, under the direction of Attorney General John Mitchell, was more concerned with mobilizing white support for Richard Nixon's reelection than with enforcing the Voting Rights Act. Emblematic of the discriminatory plans which the Nixon-Mitchell DOJ ignored was the Mississippi congressional reapportionment plan which fragmented newly franchised black voting strength in the Delta by dividing it among three districts. Equally discriminatory plans were allowed to stand throughout the South. Blacks continued to be underrepresented throughout the 1970s and had to wait until after the 1980 census for their next opportunity for electoral fairness.
Supporters of fair reapportionment increased their
Page 14political sophistication and organization during the 1970s, hopeful of implementing fair plans for the 1980 census. Unfortunately, in many instances, Reagan and his appointees to the Department of Justice displayed as little sympathy and understanding of fairness during their first two years in office as had Nixon and his appointees.
Early in 1983 however, the supporters of fair plans began to notice a shift in the way Justice reacted to the submissions for preclearance. The DOJ has written objections to a greater proportion of the plans during the past year than in the previous two. Perhaps the shift has come with Reagan's increasing awareness of claims that he is sympathetic to the proponents of continued racism. Yet, some fear that if Reagan is re-elected, he and his supporters will abandon any attempt to appear sympathetic to the development of fair reapportionment plans.
A Gazetteer of Inequality
A fair reapportionment plan is one which, following the "one person, one vote" principle, gives every significant population group the opportunity to elect representatives of its own choice. Each district should contain more or less the same number of people. Districts should be compact, with few twists and turns to their boundaries. The perimeter of the ideal compact district might resemble a square or a rectangle, or follow recognized boundaries such as a major highway or river. It should be contiguous, not chopped into more than one part (an example of a non-contiguous district is Louisiana's St. Martin Parish in the south-central portion of the state).
The most common techniques used by incumbent white elites to prevent the development of fair reapportionment plans are dilution, packing, gerrymandering, packaging and rationalization.
Dilution fragments concentrations of black residents into as many districts as possible so that no one district has a sufficiently large black vote.
Packing puts as many blacks as possible into as few districts as possible. Packing often occurs when the white power structure realizes that the proportion of blacks in a jursidiction's population is so large that it will be impossible to draw a plan without at least one majority black district.
Gerrymandering distorts the shape of a district, abandoning the ideal of compactness to create a district whose voting majority supports the incumbent power-holders.
Packaging is resorted to when a jurisdiction that has developed an unfair plan tries to present it publicly and to the Department of Justice in such a way as to fool potential critics. Some jurisdictions hire specialists who put the plan in a slick form--perhaps as a booklet with charts, tables, maps and other details. Packaging may also include outright lying.
Rationalization involves the submission of an unfair plan while claiming that for some reason or other, it should be accepted by the DOJ anyway. One form of rationalization argues that the proposed plan uses districts which are already in place for another purpose.
The Department of Justice and the courts follow a number of criteria in assessing whether or not a plan is fair. Included are retrogression, intent, effects and totality of circumstances.
Examining a plan for retrogression involves making a comparison to see if the percentage of majority black districts in the proposed plan is fewer than in the existing plan. If so, then the DOJ will invariably object to it. In 1981 and '82, retrogressive plans were the only form of discriminatory plans that the DOJ was likely to object to. During the first two years of the Reagan Administration, the DOJ precleared many proposed plans from jurisdictions which had no majority black districts in their existing plans. As a result, blacks in many jurisdictions with sizable black populations still do not have the opportunity to elect any representatives of their choice. Barring litigation, they will have to wait until after the 1990 census and for a more sympathetic administration.
The criterion of intent involves documentation of the intention to develop a plan which discriminates against blacks. These days, only a few politicians are as publicly bold as the chair of Georgia's legislative reapportionment committee who vowed, during this past year's congressional redistricting process, not to support the creation of even one "nigger district" in the state.
To demonstrate intent in the absence of blatant public pronouncements requires documentation of a history of repeated attempts to thwart minority groups' efforts for a fair plan. A case for intent can be built out of such evidence as failure to hold public meetings, failure to give serious attention to plans presented by black community groups, failure to submit plans for preclearance and the continued use of such devices as dilution and packing.
It is much easier to establish that a proposed reapportionment plan will have the effect of discriminating against blacks than it is to prove intent. Until recently, however, the DOJ did not consider this a sufficient basis for requesting an objection. A narrow interpretation of the Voting Rights Act of 1965 by the DOJ and many courts allowed the implementation of many discriminatory plans after the 1970 census and again, immediately after the 1980 census. When it was renewed in 1982, the Voting Rights Act was strengthened to make it easier for Justice to object to plans having discriminatory effects. And, throughout 1983 there has been a perceptible movement in the DOJ towards more frequent objections on these grounds.
The criteria of retrogression, intent and effect are all relatively specific in the data and analysis they require: Are blacks worse off under the proposed plan than they were under the existing plan? If so, then the plan is retrogressive. Did designers intend a discriminatory plan? Will the consequences of the plan be such that the black electorate will not have fair representation? If yes, then the plan's effect may be assessed as discriminatory.
There is yet another criterion, not as specific as the preceding three, but one that can be used to argue against unfair plans. Designated by the legalistic term totality of circumstances, this criterion involves a much more extensive analysis of the lives and positions of blacks in the jurisdiction with special attention to the nature of black participation in political life. With regard to the plan itself, one can ask: Was there black involvement in its preparation? Were discussions of the plan public? Were blacks intentionally or unintentionally excluded from the discussions? If blacks made public their criticisms of the plan, were they taken seriously? More generally, one can ask: How have whites responded to black efforts at increased political participation? How have white leaders responded to black attempts to mitigate the effects of the legacy of segregation and racism?
Answers to many of these questions often come from the personal archives kept by many blacks involved in struggles for fair treatment. Their letters, leaflets, clippings, old maps, lists tables, charts, etc., provide a wealth of details not only about their particular situations "but about the operation of power in their jurisdictions. Information from these archives along with interviews and quantitative data from a variety of sources can be combined into a powerful analysis of the level of local discrimination.
Four Recent Cases
Each of the following cases. all from 1983, involve a reapportionment map submitted by a jurisdiction to the Department of Justice for preclearance. In each, the Voting Rights Project of the Southern Regional Counci1 consulted with a group of black citizens in the jurisdiction who felt that the plan was discriminatory. We gathered as much data as we could in preparation for a "comment letter" in which we asked the DOJ to object to the plan. To show what a fair reapportionment plan would look like, we also drew alternative maps. In each of these cases, the DOJ did object to the jurisdiction's changes.
The four jurisdictions include Caddo and St. Helena parishes in Louisiana, Williamsburg County in South Carolina, and Winston County in Mississippi.
Caddo Parish is located in northwestern Louisiana. Over eighty percent of its population lives in its largest city--Shreveport. The parish submitted a plan for the reapportionment of its police jury (analogous in structure and function to other states' county commission) which was a textbook case of retrogression.
Under the existing plan there are twenty members of the police jury. Six, or thirty percent of them, are black. Under the proposed plan, in which the police jury was to have shrunk to twelve members, only two of the twelve districts or 16.7 percent were majority black. A third district was almost, but not quite, majority black. Even if this district were counted as majority black, the plan would remain retrogressive (black representation declining from thirty percent to twenty-five percent).
White parish officials rationalized that their plan was identical to a school board plan already precleared by Justice. Upon a closer look, however, the school board plan appears to be retrogressive, too, insofar as it doesn't provide for three well-defined majority black districts. Also, the school board plan had been precleared early in the Reagan Administration when the DOJ was not objecting as frequently to discriminatory plans.
There were other grounds for suspecting Caddo Parish's proposed change in the police jury. The demographer hired by the parish to draw and present the plan was president of a company which, according to its own advertisement, had prepared reapportionment plans for many other jurisdictions, including over half the parishes in Louisiana. He was surely aware of the retrogression criterion and of the likelihood of objection by the DOJ once it realized the plan was retrogressive.
The Voting Rights Project sent a letter to Justice with a statistical analysis indicating the retrogressive effect of the proposed plan. We also drew and sent an alternative, fair plan. Caddo Parish is thirty-eight percent black. We argued that the fairest plan would provide five majority black districts in a twelve district plan. We showed that because Shreveport is so segregated, it is possible to create six majority black districts, so there is no excuse
Page 16for Caddo Parish not to provide five.
St. Helena Parish
St. Helena is a rural parish northeast of Baton Rouge. It has a six-member police jury and is slightly more than fifty percent black. A fair plan should provide for three majority black districts. Instead, the parish submitted a plan which provided for only one majority black district. St. Helena did not hire a demographer, but drew the plan on its own. Without a professional's tricks, their proposed plan was transparently discriminatory. The parish's white power structure packed the one majority black district that they couldn't avoid drawing, adding to it a gerrymandered slice from an adjacent district and hanging this slice, like a tail, down from one corner (see accompanying map).
In the comment letter which the Voting Rights Project wrote to Justice, we analyzed this plan and some of the factors which helped account for it. We found that the parish was run in a manorial style by whites who held essentially feudal attitudes and committed rather unsophisticated sins. A television reporter from nearby Baton Rouge showed that some of the names on the voting rolls were the same as those on parish gravestones. Votes were bought seasonally at a local sporting goods store. There is a pattern of harassing black leaders which has forced several to leave the parish because of firings or threats.
St. Helena Parish presented an additional difficulty. We were unable to send a fair alternate plan along with our comment letter because of the unavailability of detailed census data. The white incumbents didn't have the data either. They simply made their own head counts, but provided no information about how they did it. When census data are not available, Justice says it is reasonable for jurisdictions to make their own counts, but only if all groups in the jurisdiction agree on how the counting will be done. Blacks in St. Helena are attempting to get the white leaders to agree to this process. Otherwise, they will have to go to court in pursuit of a fair plan.
Williamsburg County, South Carolina
Williamsburg County is sixty-one percent black. Its county council has seven members. Before reapportionment there were three majority black districts. This enabled whites to hold a four to three majority on the council. The reapportionment plan proposed by the council was designed to preserve the white majority. A fair plan, however, would provide four majority black districts out of seven, a proportion which comes closest to the percentage of blacks in the county.
Blacks had no opportunity for discussion of the proposed plan at public meetings because no meetings were held. Under South Carolina state law, a county's representatives to the state legislature have authority over the development of new reapportionment plans. In Williamsburg, one state senator had the main voice in development of the new plan. He and other state legislators met with the county council at a closed meeting to present the already developed plan to the council members. Neither the press nor the public was notified. A local reporter, tipped off about the meeting. was allowed to stay only through the insistence of a black count councillor--a councillor who, under the proposed plan, was to lose his well-defined black majority district and be thrown into a non-majority black district with a white incumbent whose father happened to be the state senator who supervised the development of the proposed plan. When the reporter asked for a copy of the plan, the senator refused, saying it might "confuse the public."
In a front page editorial, the newspaper pointed out that the secrecy of the meeting violated South Carolina's Freedom of Information Act and was also solid evidence that the county did not intend to allow black community participation in the development of the plan. Despite newspaper stories and protests from the black community, the county approved the plan, sent it to Justice, and without waiting for preclearance, prepared to put the plan into effect for upcoming county elections.
In order to dilute three adjacent districts, the proposed plan packed a large proportion of the county's blacks into a single district which one observer said was shaped like a "crawling snake." It also fragmented a large concentration of blacks in one of the poorest regions of the
Page 17county into three separate districts.
Black leaders in Williamsburg County contacted the Voting Rights Project and asked that we write a comment letter requesting the Justice Department to object to the proposed plan and that we draw an alternate.
It was relatively easy to draw a fair seven-member plan- with four compact majority black districts. The Justice Department objected to the proposed plan and subsequently, the county adopted a fair plan resembling the one we had drawn. It will be used in the next election.
Winston County, Mississippi
Winston County is thirty-eight percent black but no black has ever served on its five member county commission. Using an extraordinary bit of gerrymandering, the county submitted a 1983 plan which fragmented the black community in the county's largest town (Louisville) among four of the five districts so that no district would be majority black. One proposed district (see accompanying map) extends for some twenty-six miles as it contorts its way from the northern boundary of the county through Louisville, finally extending in a strip to the eastern boundary of the county. This district narrows at one point to the 190 foot width of a cemetery.
The other proposed Winston County districts also had a lot of twists and turns in them as they moved through Louisville, especially in the black residential areas. Besides gerrymandering the black community out of a district, the odd shapes make it difficult for people to know what district they actually live in. Such confusion is a further inhibitor of political participation.
Winston County hired a private firm which sent the proposed plan to Justice in a slickly packaged booklet. On the booklet's first page a demographer flatly stated that the plan conformed to all the standards of a fair plan according to interpretations of the Voting Rights Act. He claimed that there was no dilution of the black vote despite, as we showed in our comment letter to DOJ, his managing to achieve an almost ideal example of dilution this drawing of districts.
Along with our comment letter, we sent in an alternate plan. A fair plan in this thirty-eight percent black county would provide for two majority black districts out of five. In this case however, the segregated residential patterns of the county are checkerboard rather than ghetto style in their segregation, and thus do not al low for the drawing of two black districts. Our plan provides for only one, suggestive of a need to consider other measures to give blacks an opportunity to elect representatives of their choice.
Drawing the Lines
Only one of the four cases just described has yet been resolved. In the other three jurisdictions, blacks are attempting to negotiate with white political leaders in order to reach a consensus which includes a fair reapportionment plan. Illustrative of both the strength and the limits of the Voting Rights Act, if the negotiations are unsuccessful, blacks may have to go to court.
The Voting Rights Act has not been interpreted to mean that the Justice Department take an active role in
Page 18securing fair reapportionment plans. Usually, a jurisdiction's black citizenry, relying upon limited resources, must initiate litigation. A Justice Department objection letter or the documentation of failure to submit a new plan for preclearance may provide strong supportive evidence but don't necessarily mean that the courts will rule favorably or that a fair plan will be adopted. Without the Voting Rights Act, blacks might still be excluded completely from the reapportionment process in the South and be absent from elected positions altogether. Yet, much more white resistance must be overcome before blacks will gain fair treatment.
Brian Sherman is a clinical sociologist who works as a research analyst for the Voting Rights Project of the Southern Regional Council. He has drawn alternate reapportionment plans for over twenty jurisdictions and is author of an empirical study of voter discrimination in Georgia: Half a Foot in the Door.