Redistricting for Inclusive Democracy

By Penda Hair

Vol. 22, No. 4, 2000 pp. 4-6

As a direct result of the Voting Rights Act of 1965, U.S. democracy is more inclusive now than at any time in its history. As our nation faces the next round of redistricting and celebrates the 35th anniversary of the Voting Rights Act, it is important to mark this progress. In 1965, no African American represented any Southern state in Congress. In Congress today, thirteen African Americans represent the states of Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee. The ability of Latinos, Asian Pacific Americans, Native Americans, and other minorites to elect representatives of their choice also has increased significantly. These improvements did not come about voluntarily, but derive largely from enforcement of the Voting Rights Act and particularly from the Act’s pressure on jurisdictions to create single-member districts which provide minority constituencies an equal chance to elect their preferred candidates.

Much of the progress in minority representation has occurred very recently and its hold is quite fragile. The Voting Rights Act remains a vital tool wherever racially polarized voting or other barriers prevent racial and ethnic minorities from exercising a full and equal political voice.

The process of redistricting federal, state, and local voting districts usually is conducted in the year following the census, when new census data becomes available. The next round will commence in the spring of 2001.

The creation of fair districting plans is essential to democracy. Where these lines are drawn determines which residents are grouped together for electing representatives. How these lines are drawn determines which voters are able to elect representatives of their choice. In addition to determining who is elected to office, the redistricting process fundamentally affects the basic civic act of self-governance. Citizens who lack even a chance to elect candidates of their choice may opt out not only from the individual act of voting, but also from the broader process of civic participation.

The voting rights field and population figures have changed dramatically in the past decade, necessitating shifts in strategies to protect minority populations and redistribution of existing populations among the states will create very challenging multi-ethnic settings in many areas. While the Voting Rights Act still provides legal protection from districting plans that unjustly split minority communities, pack minority residents into super-majority districts, or otherwise dilute minority voting strength, the legal protections have been weakened by the Supreme Court’s Shaw v. Reno line of cases. The upcoming round of redistricting and the events that will follow are going to take place in an environment created by a backlash against the political gains of minorities in the late 1980s and early 1990s. The Voting Rights Act is under attack in the courts and in public opinion. The values underlying the passage of the Act–an equal opportunity to vote and elect representatives, true self-governance, and a participatory democracy–are at risk of being lost or forgotten.

From the 2000 Census through the 2007 decision on renewing Section 5 of the Voting Rights Act, there is an opportunity to address the contentiousness surrounding the Voting Rights Act and strengthen the values of an inclusive democracy. The new focus in the courts on drawing districts based on documented “communities of interest” offers an opportunity to build bridges across racial and ethnic lines.

In a recently-released report based upon more than seventy interviews with voting rights activists, lawyers, scholars, and community leaders, the Advancement Project summarizes the following strategies to help ensure that minorities have a fair chance to elect their representatives of choice.

Organize

Community involvement builds local knowledge which will help construct fair districts for minority voters, that represent common interests, local geography, and other factors not based on race. It will be necessary for communities of common interest to be informed, organized, and ready to effectively deal with situations where some redistricters will be openly hostile to the idea of protecting voting rights for everyone.

Grassroots organizations should focus attention on those drawing the district lines–in most circumstances the state legislature and local governing bodies. It will be critical for residents to:

• Show up in large numbers at and participate in redistricting meetings, hearings, or events held by local districting officials
• Present alternative districting plans and be prepared to offer comments on those presented by others
• Negotiate the drawing of district lines effectively
• Use the media and other forms of advocacy to make
  

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  the case for plans that are fair

• Work with districting officials and their staff members to influence the process.

Work Across Racial Lines

Redistricting and the creation and preservation of minority opportunity districts has the potential to be a “wedge” issue, dividing members of different racial groups. The need for multiracial cooperation and coalition building is an important part of the fight for fair minority representation.

The Latino population has grown in numbers and political maturity, and is poised to make greater claims for equal representation. On a smaller scale, growth is occurring among Asian Pacific American population. Balancing these different cultures and needs will intensify the complexity of redrawing district lines.

Building a solid multiracial coalition requires acknowledging the difficult issues. Multiracial cooperation can occur if attention is paid to the real causes of unfairness and the need to develop joint strategies. Communities must recognize the issues they have in common, but common interests cannot simply be assumed and conflicting interests cannot be ignored. Real cross-racial communication must occur, bringing data and the lived experiences of each group’s members to the table. Such dialogue takes time and should be started immediately, so that a level of trust can be developed before the tough issues can be resolved.

Historically, redistricting has been framed as a winner- takes-all pursuit. However, the focus should remain on the critical issue: ensuring that all Americans, regardless of their race, have an equal opportunity to participate and elect candidates of their choice.

Race and Districting

Race can be considered in drawing district lines. Majority-minority districts are still allowed. In the aftermath of cases striking down majority-minority districts, communities need to be clear on the rules for drawing lines.

When race is used without consideration of other common interests of constituents, the districts are more likely to be challenged. The safest way to use race in redrawing district lines is to use it as one of many rather than as the most significant factor. Other factors can include:

• Compactness (districts should not be too stretched out or distorted in shape)
• Contiguity (no disconnected segments)
• Political subdivisions (for instance, county lines)
• Communities of interests
• Incumbency protection (not drawing lines to make it harder for current office-holders to win re-election).

Redistricters should take into account factors other than race to avoid drawing districts that either will be

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easily challenged or easily overturned. Districts that represent community interest among residents are more easily defended, even if the district is predominantly made up of one racial group. A key question under the Supreme Court’s Shaw doctrine is whether a genuine community of interests exists or whether race is being used to assume common interests.

While “community of interests” has not been clearly defined in the case law or in social science literature, districts should strive to include residents with similar income and education levels, church memberships, civic-social organizations, common transportation issues, and common economic interests (e.g. agricultural versus industrial areas or rural versus metropolitan areas).

The Supreme Court has overturned some minority opportunity districts, partially based on the statements of the individuals who redrew the district lines. For example, a plan for Georgia redistricting called “Max Black” was interpreted as a signal that race was predominant.

The name of a proposed redistricting plan should represent goals of unity or democracy–giving minorities a fair chance to electing officials of their choice. Names like “Opportunity Plan” or “Unity Plan” tell the story better.

Using the Media

Strategic and coordinated campaigns to educate the public and the media about the foundations of the Voting Rights Act and the importance of a representative democracy are essential. These efforts help create broad public support for fair districting plans.

During 2001, the Advancement Project plans a communications initiative to reconnect the goal of minority representation to the principles of democracy. To be successful, such a campaign to recapture the moral high ground will require voting rights supporters to join together on the messages and images that communicate the values of minority representation and “minority opportunity districts.” We must use these messages consistently in speeches, interviews, and other outreach activities. The Advancement Project will work jointly in this effort with the Communications Consortium, a public interest media center with expertise in media and public education campaigns. By improving public understanding of the history of the Voting Rights Act, and the continuing need for its protection, we have the opportunity to shape the electoral landscape in which public policy decisions are made.

Penda Hair is co-director of the Advancement Project in Washington, D.C., a public policy advocacy organization and resource center devoted to finding, creating, and promoting innovative and effective strategies to advance racial and social justice.

Minority Vote Dilution Is Still Illegal

By Brenda Wright

Vol. 22, No. 4, 2000 pp. 7-10

The 1990 round of redistricting brought a significant increase in minority representation in Congress, state legislatures, and local offices. The key to this success was the creation of many new districts in which minority citizens comprised a majority of the population. The backlash that followed, culminating with the Supreme Court’s creation of a new constitutional claim of reverse discrimination in Shaw v. Reno, is well-known.

Seven years after Shaw, with numerous Supreme Court and lower court decisions interpreting and applying that decision, the message is clear: it is still legal to draw majority-minority districts. Opponents of majority-minority districts like to deny that fact. One of the most important obstacles that minority advocates face is overcoming such misinformation in the upcoming redistricting battles . What follows are some key principles that minority advocates need to promote as they gear up for redistricting 2000.

Section 2 Requires Equal Opportunity for Minorities

Districting plans that dilute minority voting strength are still illegal under Section 2 of the Voting Rights Act. Even after Shaw v. Reno, courts have continued to strike down redistricting plans under Section 2 when the plans fail to create adequate majority-minority districts. For example, in Sanchez v. Colorado, Colorado’s legislative redistricting plan was struck down in 1996 because it did not include a majorityHispanic district. Tennessee’s legislative redistricting plan was struck down in 1998 in Rural West Tennessee African-American Affairs Council v. Sundquist because it did not include sufficient majority-black districts.

The federal courts have also continued to strike down local-level plans for failing to create adequate majority-minority districts, even after Shaw v. Reno, including: Teague v. Attala County (Miss.); Clark v. Calhoun County (Miss.); Houston v. Lafayette County (Miss.); and Barnett v. City of Chicago (Ill.).

These and other judicial decisions have rejected a variety of arguments made by opponents of majority-minority districts, including the argument that Shaw makes it unlawful intentionally to draw a majority-minority district, and the argument that a districting plan must achieve ideal compactness in order to serve as a valid Section 2 remedial district. The lesson of these post-Shaw cases is clear: Section 2 of the Voting Rights Act still makes it unlawful to adopt a redistricting plan that denies minority voters an equal opportunity to elect candidates of their choice.

If a state (or other redistricting authority) has substantial evidence that voting is polarized along racial lines, that minority voters have had difficulty electing candidates of their choice to office in majority-white districts, and that the minority population is sufficiently large and geographically compact to form a majority in one or more districts, then the state (or other redistricting authority) has a compelling interest in creating majority-minority districts to avoid a violation of Section 2.

The intentional creation of a majority-minority district is not inherently suspect under the Fourteenth Amendment unless race predominates over all other factors in drawing the district. One of the biggest questions initially raised by the 1993 decision in Shaw v. Reno was whether redistricting plans would automatically be suspect under the Fourteenth Amendment if the plan intentionally created a majority-minority district. In decisions subsequent to Shaw, Justice O’Connor, whose vote was critical to the 5-4 Shaw majority, has made it clear that the intentional consideration of race in drawing a district is not, by itself, enough to make the plan suspect.

One of Justice O’Connor’s clearest statements along these lines came in her concurring opinion in Miller v. Johnson, in which she said, “To invoke strict scrutiny [of a majority-minority district], a plaintiff must show that the State has relied on race in substantial disregard of customary and traditional districting practices.” Justice O’Connor also took pains in the Texas redistricting case, Bush v. Vera, to make it clear that Section 2 of the Voting Rights Act will often require states to draw majority-minority districts, and that states are entitled to assume that Section 2 is constitutional. Justice O’Connor’s views really establish the controlling guidelines for redistricting, because without her vote, there would have been no majority for striking down any of the districts that the Supreme Court has invalidated in the wake of Shaw.

According to Miller v. Johnson, to create majority-minority districts that will withstand a challenge under Shaw, plan drawers should avoid districts that “substantial[ly] disregard . . . customary and traditional redistricting principles.” The Supreme Court and lower courts have identified a variety of factors such as compactness, contiguity, respect for political subdivisions, respect for communities of interest, and protection of incumbents (and other political factors), as traditional redistricting principles.

That does not mean, however, that majority-minority districts must necessarily achieve the maximum possible compactness, or maximum possible respect for political subdivisions. The Supreme Court held in Bush v. Vera that a majority-minority district need not defeat other districts in a “beauty contest” in order to be sustained. Justice O’Connor also said, in Miller v. Johnson, that the Court’s “basic objective” was “making extreme instances of gerrymandering subject to meaningful judicial review.”

Obviously, the rules that have emerged out of the Supreme Court’s decisions are fairly subjective-it’s permissible to have some departure from ideal compactness, but a “bizarre” district will be suspect. What does that mean in practice? It means that the lower courts end up with a lot of discretion in deciding how much departure from traditional redistricting principles is too much. In Illinois, a three-judge district court upheld Illinois’ 4th Congressional District-the famous “earmuff” district (see district top right above)-against a Shaw challenge, and the Supreme Court summarily affirmed that decision. The Supreme Court also upheld the constitutionality of Florida’s Senate District 21, even though it split three counties and crossed Tampa Bay. On the other hand, districts less bizarre than either of these have been struck down by other federal courts under Shaw.

The best advice for redistricting, then, is to attempt to observe traditional districting principles to the greatest extent possible while still creating districts that afford minority voters an equal opportunity to elect candidates of choice to office. Even though split counties or cities will not automatically invalidate a plan, minimizing the number of such splits will increase the chances of a district being upheld against a Shaw challenge. In particular, plan drafters need to be careful about using racial data at the census block level-below the precinct level-in creating a district, if your mapping software does not also permit you to examine other, nonracial characteristics at the block level. Splitting precincts along racial lines was a primary basis for the Supreme Court’s conclusion that race unlawfully predominated over all other factors in drawing the Texas congressional districts that were challenged in Bush v. Vera.

Similarly, even though “ideal” beauty is not a constitutional requirement for district shapes, minimizing the numbers of odd-looking “fingers,” “appendages,” and “tentacles,” will help in sustaining the constitutionality of a district.

It is also very important to understand that departures from traditional redistricting principles are permissible if they can be explained in terms of race-neutral factors. For example, if a majority-minority district is distorted in shape because of the need to meet one-person, one-vote requirements; to keep two incumbents separated; because the political jurisdiction itself has odd boundaries; or to link communities of interest that are not defined solely in racial terms, then the district’s shape will not necessarily render it suspect. It is particularly important to make sure that the record of the redistricting process, including any public hearings or legislative testimony, documents the race-neutral factors that went into the redistricting plan.

If a redistricting plan increases the percentage of minority population in a particular district-for example, raising the minority percentage from 55 percent to 60 percent-special care must be taken to document why this increase was either the result of race-neutral redistricting goals or was necessary to overcome a clear pattern of minority vote dilution. Some court decisions after Shaw have tended to assume that any district that far exceeds 50 percent in minority population is an example of “maximization” and therefore suspect.

Section 5 and Retrogression

In states covered by Section 5 of the Voting Rights Act, the requirement of nonretrogression is still a powerful tool to protect minority voting strength. States and localities covered by Section 5 must obtain preclearance from the United States Department of Justice or the United States District Court for the District of Columbia before implementing new redistricting plans. A redistricting plan is retrogressive, and therefore cannot receive preclearance under Section 5, if it would reduce the ability of minority voters to participate effectively in the electoral process.

There are many ways in which a redistricting plan may be found to cause unlawful retrogression, the most common being reducing the total number of effective majority-minority districts in a plan, or reducing the percentage of minority population in a district where minority voters previously were able to elect a candidate of choice. When a covered jurisdiction reduces minority voting strength in this way, it is vulnerable to an objection under Section 5.

States and localities covered by Section 5 are not free to adopt retrogressive redistricting plans merely by pointing to Shaw v. Reno and arguing that a majority-minority district might be unconstitutional. A jurisdiction’s existing plan should be regarded as the benchmark for determining retrogression unless a federal court has already struck down the plan as unconstitutional.

Unfortunately, in Reno v. Bossier Parish School Board the Supreme Court held in January 2000 that, in the absence of retrogression, the Department of Justice cannot object to a voting change under Section 5 on the ground that it was based on a racially discriminatory purpose, or would result in a violation of Section 2 of the Voting Rights Act. Nevertheless, given the tremendous increase in the number of majority-minority districts created after the last census, and given the large number of these districts that have survived the decade without a successful challenge under Shaw, the nonretrogression principle of Section 5 remains an important tool for the 2000 round of redistricting.

Brenda Wright is managing attorney for the National Voting Rights Institute in Boston, Massachusetts

The Supreme Court’s Recent Redistricting Decisions: Change of Heart or Lack of Interest?

By Laughlin McDonald

Vol. 22, No. 4, 2000 p. 9

After a series of blockbuster decisions beginning with Shaw v. Reno in 1993, it looks as if the Supreme Court has, at least for the moment, had its fill of the so-called reverse discrimination gerrymandering cases. During the current term it has thus far declined to review a lower court decision rejecting a challenge by white voters to a majority black councilmanic district in Jefferson Parish, Louisiana (Theriot v. Jefferson Parish, Louisiana), as well as a similar challenge to two congressional districts in Florida (Chandler v. Harris).

In another case, without deciding the merits, the Court set aside a successful challenge by white voters to two majority black state legislative districts in Alabama on the ground that the plaintiffs, who lived in adjacent majority white districts, lacked standing to complain about the way the majority-minority districts had been drawn (Sinkfield v. Kelley). The Court also refused to review a case from Tennessee in which the state argued that a lower court’s decision ordering into effect an additional majority black house district in the six county area of Rural West Tennessee was an unlawful prescription for “black maximization” (Sundquist v. RWTAAAC).

Do these recent decisions, all of which were resolved in favor of minority voters, suggest that the Court is having second thoughts about the Shaw line of cases and the fairness of singling out majority-minority districts for strict, and generally fatal, constitutional scrutiny? Probably not. There is no reason to believe that the architects of the Shaw doctrine (Rehnquist, O’Connor, Kennedy, Scalia, and Thomas) have had a real change of heart. A more likely explanation is that as the decade draws to a close, and the constitutionality of existing plans is rapidly becoming moot in light of the new census, the Court is simply no longer interested in redistricting, at least for the time being.

A notable exception is congressional redistricting in North Carolina, a matter the Court has taken up for the fourth time in seven years (Hunt v. Cromartie). It heard oral argument in the case on November 27 and will shortly decide if the state’s plan, which no longer contains any majority black districts, violates the Fourteenth Amendment.

It would help if the Court were to use the North Carolina case as an occasion to clarify its conflicting redistricting standards, described charitably by the dissenting members of the Court (Stevens, Ginsburg, Souter, and Breyer) as “unmanageable.” Under the Court’s present rules, a legislature can only guess if it properly took race into account in drawing a plan, as it is required to do to comply with the Voting Rights Act, or if it placed too much emphasis on race.

It would also help if the Court were to apply the same standards to white voters that it applies to black voters who challenge redistricting plans on constitutional grounds-that they show they have suffered an actual injury or dilution of their voting strength and that the state intended to discriminate against them. But whether the Court will do that, or continue to write the rules to favor majority white districts, remains to be seen.

Laughlin McDonald is director of the Voting Rights Project at the American Civil Liberties Union’s Southern Regional Office.

The Department of Justice: Enforcing the Voting Rights Act

By Anita Hodgkiss

Vol. 22, No. 4, 2000 pp. 11-12

The U.S. Department of Justice (DOJ) has the authority to take steps to protect voting rights when election district lines are changed. The Department can file a lawsuit in court under Section 2 of the Voting Rights Act to challenge racially discriminatory districts anywhere in the country. In certain states and local jurisdictions (see box on page 16), covered by Section 5 of the Voting Rights Act, all changes in laws affecting voting, including redistricting plans, must be submitted to DOJ or to the District Court for the D.C. Circuit, to be reviewed before they can be put into practice. DOJ has sixty days to review redistricting plans submitted under Section 5. The Department will then either grant “preclearance” giving the state or local jurisdiction the go ahead to implement the change, or the Department will object to a redistricting plan if it has the purpose or effect of making minority voters worse off. When DOJ objects to a plan, it does so by writing a letter to the jurisdiction, outlining the reasons why the new plan makes minority voters worse off. (Recent objection letters are available through the Department’s website at: www.usdoj.gov/crt/voting/sec_5/obj_activ.htm.)

The DOJ’s role comes fairly late in the redistricting process, after a redistricting plan already has been adopted by a state legislature or local governing body. The Department does not introduce redistricting plans in the state legislatures. Similarly, DOJ does not take a position on what redistricting plan should be adopted by any jurisdiction, unless they are parties to a matter that is in litigation.

In addition, it is not the role of the DOJ to object to new redistricting plans if the districts are oddly shaped. In reviewing redistricting plans under Section 5, the Attorney General may not deny preclearance on the grounds that the new plan violates the one-person, one-vote principle, that it violates Shaw v. Reno, or on the ground that it violates Section 2 of the Voting Rights Act.

When to Contact the Department of Justice?

• Contact DOJ if you believe that community groups or citizens are not being given an opportunity to participate appropriately in the redistricting process because of their race or color, anywhere in the country.

For example, you should contact DOJ if your state is refusing to allow representatives of a minority community group to speak at public hearings on redistricting proposals or to have access to the state’s redistricting computers, when other civic groups are allowed to speak or use the computers. The Department should examine, under Section 2 of the Voting Rights Act, whether purposeful racial discrimination is occurring and, at a minimum, be aware of concerns about the fairness of the redistricting process if the jurisdiction is one that must obtain Section 5 preclearance.

• Contact DOJ if the redistricting plan passed by your legislature or local jurisdiction is retrogressive and the jurisdiction is covered by Section 5 of the Voting Rights Act.

“Retrogression” is a term the Supreme Court first used in 1976 to define how discriminatory effect is evaluated under Section 5. With regard to redistricting plans, the Justice Department evaluates whether a new redistricting plan is retrogressive by comparing it to the benchmark plan. The Department calculates the population data for the benchmark plan using the new 2000 Census data. The racial composition of the benchmark plan is then compared to that of the new redistricting plan submitted by the jurisdiction. Retrogression occurs if the new plan, evaluated together with election history and voting patterns in the jurisdiction, voter registration, turnout, and other information, reduces minority voting strength.

The Section 5 guidelines identify a number of factors that DOJ considers in determining whether a new redistricting plan is retrogressive when compared with the benchmark plan, including whether the new plan:

• Reduces minority voting strength in any district;
• Has fewer districts in which minority voters can elect candidates of choice;
• Splits minority communities among several districts;
• Over-concentrates minority voters in one or more districts;
• Departs from or is inconsistent with objective redistricting criteria set by the jurisdiction;
• Ignores available natural or artificial boundaries without explanation.

If you believe that the new redistricting plan in your jurisdiction is retrogressive, contact the Department of Justice to request that the Attorney General object to the plan under Section 5 of the Voting Rights Act.

• Contact DOJ if the redistricting plan passed by

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your legislature or local jurisdiction is discriminatory, anywhere in the United States.

A redistricting plan is discriminatory when it dilutes the voting strength of minority voters and can be challenged under Section 2 of the Voting Rights Act. In general, a redistricting plan violates Section 2 when minority voters have less opportunity than other members of the electorate to participate in the political process and to elect candidates of choice to office.

Unlike retrogression under Section 5, which requires comparison to the jurisdiction’s benchmark plan, discrimination under Section 2 does not necessarily require showing that the new plan makes minority voters worse off than they were under the old plan.

• Contact DOJ if the redistricting plan passed by your legislature or local jurisdiction is fair to minority voters and the jurisdiction is covered by Section 5 of the Voting Rights Act.

If you live in a Section 5 jurisdiction, and you believe that the new redistricting plan is fair to minority voters, you can contact the Department of Justice to explain why the Attorney General should preclear the new plan.

How to Contact DOJ

Call the Civil Rights Division, Voting Section, toll-free at 1-800-253-3931. Letters should be addressed to: Chief, Voting Section, Civil Rights Division, Department of Justice, P.O. Box 66128, Washington, D.C. 20035- 6128.

The Section 5 guidelines provide that comments by individuals or groups concerning any change affecting voting may be sent at any time; however, individuals and groups are encouraged to comment as soon as they learn of the change. Even though DOJ has sixty days to review a redistricting plan, the earlier they have your information, the better. Occasionally, the Department will preclear submissions before the end of the sixty-day review period, where expedited consideration has been requested.

Department of Justice officials and employees will comply with the request of any individual that his or her identity not be disclosed to any person outside the Department, to the extent permitted by the Freedom of Information Act. In addition, whenever it appears to the Attorney General that disclosure of the identity of an individual who provided information regarding a change affecting voting “would constitute a clearly unwarranted invasion of personal privacy,” the identity of the individual shall not be disclosed to any person outside the Department.

For more information: The Voting Section of the Civil Rights Division maintains a Website with Section 5 guidelines, summaries of Supreme Court cases, descriptions of the Section’s work and frequently asked questions. The Visit: www.usdoj.gov/crt/voting/index.htm.

Anita Hodgkiss is co-director of the Voting Rights Project at the Lawyers Committee for Civil Rights Under Law in Washington, D.C.

Fighting the “New” Disfranchisement with a New Voting Rights Movement

By Ellen Spears

Vol. 22, No. 4, 2000 p. 14

The raft of disfranchising mechanisms, old and new, that served to delegitimize the 2000 presidential election place the need for electoral reform at the top of the national agenda. More than at any time since the passage of the 1965 Voting Rights Act, the workings of the system are exposed, revealing undemocratic practices that affect many voters and pervasive disfranchisement of voters of color. Calls for national unity and healing will have no meaning unless these persistent wrongs-including the overwhelming influence of money in politics-are righted.

The experience of disfranchisement by voters unaccustomed to it in Palm Beach County bared the innards of an electoral system that does not fairly count the votes. But much more needs repair. Partisan-initiated voter purges conducted during spring and summer 2000 that removed 173,000 voters from the roles had a disproportionate impact on African-American, Haitian-American and Latino voters. The Florida felon disfranchisement law, like laws in twelve other states, permanently withholds the vote from persons who have paid their social debt. These policies affected an estimated 400,000 voters of all races in Florida; similar policies deny the vote to an estimated 1.4 million African American voters nationwide. Perhaps most troubling is the black vote suppression in Duval County, with an African America population of 26 percent, where an estimated 10.2 percent of the voters’ ballots were invalidated.

Three separate investigations into racial bias in the voting irregularities in Florida-by the U.S. Department of Justice, the U.S. Commission on Civil Rights, and Florida state government-need full public airing. But greater electoral democracy requires a range of reforms in every state.

Federally funded updating of election machinery in poor and urban areas to provide a full and fair count is only the beginning. Many elections are won or lost long before most voters are attuned or many candidates have paid their filing fee, during the decennial remap process. Insuring that the lines are fairly drawn will be a particular challenge in what is likely to be an especially partisan and bitter redistricting cycle. Full implementation of voter registration laws and an end to discriminatory purges are crucial.

A range of election day practices that work to disproportionately suppress the turnout of voters of color must be stopped. Voters turned away at the polls, polling places moved, intimidation, threats and harassment of African-American voters, failure to provide bilingual ballots, as required by law, or failure to provide language assistance with ballots-all these practices have no place in a genuine multiracial democracy. Absentee ballot irregularities require particular attention.

Clear principles for judicial review of elections must be set. The Supreme Court majority that decided this election by the slimmest of margins has evidenced hostility toward the Voting Rights Act during the past decade. If legitimacy of elections and the Court are to be retained, uniform standards must be applied.

Beyond each of these prescriptions lie even deeper structural or institutional reforms: further consideration of proportional voting and Electoral College reform rank high among them. The South has, once again, wielded disproportionate power in the national election. Though 53 percent of African-American voters (who vote 90 percent for Democrats) reside in the Southern states, the combined effect of winner-take-all elections and the Electoral College system acts to prevent those votes from counting. Writes ColorLines magazine editor Bob Wing, “the result was the same as if blacks and other people of color in the region had not voted at all.”

The corrosive power of money in politics places the need for campaign finance reform at the top of this long list. We cannot decry low U.S. voter participation rates, yet fail to act to get money out of politics; we must press for structural reforms to policies that inhibit involvement or deny access. To do so, as Harvard law professor Lani Guinier points out, we need a new voting rights movement. If we hope for a genuine, multiracial democracy, we cannot make obsolete the solemn promise of the vote.

Ellen Spears is associate director of the Southern Regional Council. She can be reached by email at espears@southerncouncil.org.

Racial Discrimination in Florida: Election 2000

Staff

Vol. 22, No. 4, 2000 pp. 15-16

Testimony about racial discrimination in the Florida elections was received at a hearing sponsord by the NAACP on November 11. Following is one personal story from the NAACP hearing and an excerpt of a report by the Lawyers Committee for Civil Rights Under Law, the Advancement Project, and The Leadership Conference on Civil Rights documenting charges of racial discrimination on November 7, 2000, as minority voters exercised their right to vote in Florida. For more information, visit www.lawyerscomm.org.

Donisse DeSouza testified she has been registered to vote in Florida since 1982 and has voted in all major elections. She has lived in the same majority-black precinct for the past six years.

On Election Day, DeSouza, an African-American resident of Miami, went to the polling place listed on her new Voter ID Card. She had waited until late in the day so she could take her five-year old son to teach him the importance of voting. She arrived in the vicinity of the polls at 6:30 p.m., but a police officer was keeping voters’ cars in a long line waiting for parking spaces. A small lot provided the only place to park. After waiting for twenty minutes, DeSouza entered the polling place and presented her driver’s license and voter registration card to a white poll worker who explained that DeSouza was not listed on the registration rolls and instructed her to move to another line to address the issue. DeSouza stood in the other line with approximately fifteen others. At 7 p.m. they were informed that the polls were closed. They were not offered an affidavit ballot or other assistance; they were told that nothing could be done if their names were not on the registration rolls. These citizens were refused the right to vote.

After the election, DeSouza went to the Board of Elections and found that her name did appear on the voter register. She was also told that all voters inside the polling place at 7 p.m. should have been permitted to vote and

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that the Board of Elections continued to take calls and clear up irregularities after the polls closed.

Since November 7, there have also been substantial, credible allegations, like DeSouza’s, of disfranchisement of minority voters in several Florida counties.

There are compelling reasons to address these complaints of disfranchisement immediately, and with the utmost gravity:

• Florida has a long, well-documented history of discrimination against African-American voters. Because of their history of discrimination, five Florida counties are “covered” jurisdictions under Section 5 of the Voting Rights Act.
• There have been reports of hundreds of African Americans, Haitian Americans, and Puerto Ricans who may have been denied their constitutionally guaranteed right to vote in the November 7 election in Florida.

Civil rights organizations associated with the Leadership Conference on Civil Rights (LCCR) received complaints of widespread denial of the right to vote, predominantly affecting minority voters and heavily-minority precincts.

Alleged Abuses

The information gathered by civil rights organizations, including the NAACP, details allegations of several forms of denial of the right to vote, intimidation, and barriers that prevented or discouraged voting. All of the following types of disfranchisement-alleging serious violations of the U.S. Constitution, the Federal Voting Rights Act and the National Voter Registration Act, as well as Florida Election Law and Florida Civil Rights Laws-have been described in complaints to LCCR organizations.

Longstanding minority voters reportedly were told that they did not appear on the voting lists. Some said they were turned away because they did not have photo identification, even though Florida law provides that registered voters without photo IDs may cast “affidavit ballots.” In some counties there were reports that minority voters were asked for a photo ID while white voters were not. Some minority voters were turned away even when they appeared at the polling place with both their voter card and a photo ID.

Voters who did not appear on the voting list or have a photo ID were shunted into a “problem” line, where they waited for long periods of time after being told that election officials were trying to telephone headquarters. Because phone lines were jammed and many of these calls never went through, many voters said they became discouraged and left without voting.

Voters reported being sent from polling place to polling place, with no real effort to determine where they were supposed to vote. Some claimed to have been turned away from not just one, but three or four polling places.

Other voters reported being denied the right to vote because of minor, immaterial discrepancies in their names as they appeared on registration lists and in their proof of identification-such as their use of middle initials.

Poll workers reportedly were instructed to be particularly “strict” in challenging voter qualifications because of aggressive voter registration and turnout efforts.

Large numbers of minority voters who claimed they registered before the October 10 deadline, did not receive their voting cards before November 7. When they appeared at the polls, they were told they were not on the voting list and were not permitted to vote.

Witnesses also reported that one, and possibly more, polling places were moved without notice to the voters and without the placement of a sign at the site, as required by Florida law. Minority voters served by this polling place had to locate their new polling place on their own.

Intimidation and Irregularities

Witnesses reported police checkpoints or stops of voters near several polling places in African-American neighborhoods.

Some voters who requested absentee ballots alleged that they did not receive them and were not allowed to vote when they went to the precinct in person on election day. In addition, a witness has reported that, in one county, hundreds of absentee ballots of registered voters were rejected by the Supervisor of Elections and not counted.

Miami-Dade County passed an ordinance in 1998 requiring that ballots in Creole be provided at forty-seven majority-Haitian precincts in the county. Complaints allege that these ballots were not available at some of these precincts.

Many Haitian-American voters also requested the assistance of a volunteer Creole/English speaker willing to translate the ballot for those with limited English proficiency, but were denied such assistance, despite provisions of Florida election-law.

Voters also reported being denied a second ballot to correct an error in the first one.

Democracy Denied

The allegations of exclusion and intimidation that civil rights investigations have uncovered show a possible pattern of disfranchisement of large numbers of minority voters in several counties. African-American, Haitian-American, and Hispanic voters who tried to vote, and who made heroic efforts to overcome barriers and refusals, must not be left voiceless in our democracy.

Voting Rights and the New Majorities

By Angelo Ancheta

Vol. 22, No. 4, 2000 pp. 17-18

The passage of the 1965 Voting Rights Act helped reshape the American electorate and led to dramatic increases in the number of elected officials of color, particularly in the South. The year 1965 also marked a major shift in American immigration policy: removing discriminatory national origin quotas from the law, and spurring significant growth in the number of immigrants from Asia and Latin America-a trend that continues today.

Because of voting rights protections, legislatures are more integrated than they were thirty years ago, and they are a better representation of the populations they were elected to serve. But shifting demographics, fueled largely by immigration, reveal that constituencies are changing as well. Los Angeles, for example, now has a population in which no single racial or ethnic group, including whites, commands a numerical majority.

The trends that are most prominent in California are occurring in areas throughout the country, and they raise challenging questions: How should political representation reflect the changing demographics? How should immigrant groups be incorporated into the political process? What will be the impact of population shifts on the next round of reapportionment and redistricting? Are there risks to minority incumbents? What are the possibilities for coalition building among minority groups? What are the dangers of intergroup competition? And how does the law, including the Voting Rights Act, deal with all of these changes?

Cities and counties all over the U.S. are seeing the growth of immigrant populations which are developing into significant voting blocs. For example, according to U.S. Census Bureau estimates for the year 1999, less than one quarter of Florida’s Miami-Dade County is non-Hispanic white, while blacks are 20 percent of the population, Asians and Pacific Islanders are 2 percent, and Latinos are 57 percent. Similarly, only 33 percent of Los Angeles County is non-Hispanic White, while African Americans are 11 percent of the population, Asian and Pacific Islanders are 13 percent, and Latinos are 44 percent. Cook County in Illinois is 50 percent non-white; Harris County in Texas is 52 percent non-white; and Georgia’s DeKalb County is 56 percent non-white.

At the same time, we are seeing decreases in the relative sizes of many African-American populations. In California, for example, the African-American population is now smaller than either the state’s Asian American or Latino population. The number of black elected officials has grown since the 1960s, but populations within many of the districts that were once predominantly black are now increasingly Latino and Asian. Elected officials are much more likely to be representing a broad array of constituents, composed of several racial and ethnic groups.

It is difficult to generalize about when and how minority groups vote together-or separately. Polls of racially-charged ballot initiatives such as California’s Proposition 209 have shown solid opposition from minority groups, and registration and voting patterns show very high levels of support for Democratic candidates among black voters, with strong majorities among many Latino and Asian American populations. But there can be conflicts as well. In Miami, for example, tensions between blacks and Latinos often lead to polarized voting.

Although it does not deal directly with issues such as minority coalitions and potential competition among groups, the Voting Rights Act does provide a basic set of protections to minority voters. The Act has always prohibited discrimination based on race, and since 1975 it has offered protection to language minority groups, including Latinos, Asian Americans, and Native Americans. Section 203 of the Act specifically requires language assistance, such as bilingual ballots, in areas with significant immigrant populations.

But there is also uncertainty in the law. Under the guidelines set out in the leading case of Thornburg v. Gingles, plaintiffs can challenge discriminatory electoral systems such as at-large elections because they dilute minority voting strength. Among the requirements are evidence of racially polarized voting and the existence of a large and compact racial minority population that could form a majority within an electoral district.

One issue raised in a multiple minority setting is whether minority groups can be combined as a coalition to form a majority within a district. The courts have divided on this issue, and the U.S. Supreme Court has yet to address it directly.

The limitations imposed on race-conscious redistricting by the U.S. Supreme Court’s Shaw v. Reno and Miller v. Johnson line of cases also complicate the picture. Still, race-neutral criteria that have been endorsed by the Court, such as “maintaining communities of interest,” are part of the law in many states, and can provide an avenue for protecting multiple minority interests. Minority populations

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that share common characteristics such as socioeconomic status or local business and transportation interests could be combined as a community of interest within a district’s lines.

There are no easy solutions to the problems of potential competition between minority groups or to the challenges that minority incumbents may face through the changing demographics and politics of their constituencies. The advancement of common interests may offer the best hope for minority communities and the development of positive race relations. Simple line drawing along ethnic lines may result in short term gains for minority communities who have lacked representation in the past, but it may also lead to long term divisions between groups.

Coalition building is never easy, but it may provide the best hope for minority empowerment in an increasingly multi-ethnic America.

Angelo Ancheta is the Director of Legal and Advocacy Programs for the Civil Rights Project at Harvard University. From 1994 to 1998, he was the executive director of the San Francisco-based Asian Law Caucus, which is the nation’s oldest civil rights legal organization focusing on the Asian-American population.

Why Don’t Youth Vote? Young People Respond

Staff

Vol. 22, No. 4, 2000 pp. 18-19

The following comments were excerpted from the Center for Voting and Democracy’s Spring 2000 youth essay contest which asked college and high school students to respond to the question, Why Don’t Youth Vote? The writers quoted, mostly college students, suggested changes to the electoral system that might increase political participation among young people and explained their reasons for participating in or abstaining from our political and electoral systems. “Jim C. Fung, born 1979, college student, Berkeley, California

Youth are disillusioned with politics for many of the same reasons that our parents are. If lobbyists and campaign contributors did not have more access to public officials than do regular citizens, if economic democracy in the workplace existed alongside what some would call the “illusion” of political democracy, if elected officials acted more on “bread and butter” economic issues, such as the increasing concentration of wealth and the lack of health insurance for many Americans, than on expanding the prison population and on the military-then most people of all ages would consider their votes much more meaningful.

Given the reality that youth tend to get most excited about issues rather than politicians, alternative electoral systems such as proportional representation, IRV, cumulative voting, and easier third-party ballot access, would only succeed in stimulating us if the third parties involved were ideologically oriented or issues-based parties rather than crass vote-maximizers. The issues of these parties would also need to be relevant to daily life-rather than visions of pie-in-the-sky utopianism. Many of the third parties in America today already fit this bill, addressing issues like the environment, workers’ rights, and healthcare. In addition, judging from the example of European democracies using PR, the presence of such a system tends to encourage ideological or issues-based parties. Thus, an alternative electoral system should be seriously considered.

Amanda Ponzar, born 1978, college student, Lansdowne, Pennsylvania

When it comes down to it, I care. I watch all the presidential and vice-presidential debates, listen to the State of the Union, read the paper, and frequently publish letters to the editor about my concerns. Just like me, many young people around this country care desperately about their lives, goals, and future. We need someone to listen, support our issues, and prove to us that America wants to hear from young people.

Stephanie Simmons, born 1980, college student, Wellesley, Massachusetts

I’m a politically active twenty-year-old college student, and I’ve never voted in an election–state, local, or national. It seems strange now that I think about it. I’ve been interested in politics for as long as I can remember, trying to talk my parents into voting for Dukakis in 1988 and holding a sign for Bill Clinton in 1992 and 1996. I eagerly looked forward to the time when I would be able to participate in

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the selection of my representatives in the government. Why have I never voted in an election? Because the voting system is so antiquated and inefficient. Voting is for me, as it is for most young people, something between a hassle and an impossibility. If you clear the barriers, more people, and especially young people, will vote.

Jennifer Lang, born 1981, college student, The Colony, Texas

You challenge us to become more politically involved, to propose changes in the electoral process that will persuade us to flex our political clout. I challenge you to give us intelligent reasons why we would want to. Why would anyone, young or old, want to become more politically involved? Government by and for the people depends on the size of the people’s bank accounts. Issues are skipped like rocks across a pond. How many more Columbine High School tragedies have to happen before stricter gun laws are enforced on the streets, not in the local sports stores? How many more teenage pregnancies and abortions have to occur before sexual education becomes more than a few chapters in a ninth-grade health book?

Melissa M. Flicek, born 1979, college student, St. Paul, Minnesota

Generally, young people do not participate in the electoral process. Being a young person myself, I understand both the importance of being an active citizen of the United States, and the overwhelming, “it doesn’t affect me” syndrome. Many young people don’t make it a point to vote because political issues usually involve taxes, social security, and welfare reform. These issues, however important, do not relate directly to young people today. It is true these issues will have an effect on us in the future, but right now that seems very far away. Candidates for political office also seem to be rich, smooth-talkers whose loyalties lie more with their political parties than the people whom they represent. It would be nice if everyday citizens had a better chance to run for office, not just the extremely wealthy businessmen, lawyers, and military leaders.

Rozalina Grubina, born 1982, high school student, Brooklyn, New York

My grandparents lived in Latvia most of their lives, and so did my parents. Here, I can become a citizen, despite my nationality and religion. I can vote and be a respected member of society. I consider political involvement not only a privilege of all those fortunate enough to take part in it, but also the duty of my generation. It is only through voting and caring about who our leaders are that we can prevent another holocaust or race riot. Only through voting can we preclude what is now happening in Latvia and Austria from taking place in my new homeland. It is our obligation to build a country of tolerance, not hate, and of peace, not violence.

I believe that my generation must be educated on the importance of politics and the changes that they, themselves, can induce simply by participation. It is not up to the select few to run our country; it is up to us. We can make our voices heard, and we can make a difference. Thus, if young adults realize that they could influence the course of history, voting participation would skyrocket. Getting Youth Back to the Polls

According to the National Association of Secretaries of State (NASS) survey, fewer than 20 percent of young people, ages eighteen to twenty-five, participating in the 1998 midterm election. Youth are far and away leading the national trend towards non-voting-and the South is leading the country in numbers of youth who do not vote. In response to that trend, the Fair Representation Program at the Southern Regional Council with Clark Atlanta University’s Southern Center for Studies in Public Policy is currently engaged in a comprehensive evaluation of youth political participation and nonparticipation in the South. Called the Youth Empowerment Project (YEP), the study will first document the non-voting trend among youth in the South and then develop pilot youth leadership development programs to nurture and grow youth political engagement. For more information about YEP, email the Fair Representation Program at: fairrep@southerncouncil.org. Call 404-522-8764, or visit www.southerncouncil.org.

Fair Policies through Effective Redistricting

By Mike Sayer

Vol. 22, No. 4, 2000 p. 20

In 1992, a three-judge federal court in Mississippi approved a legislative redistricting plan that, in the court’s words, created the “maximum number of electable black districts.” As it approved the plan, the court denounced its creation in response to the demands of an organized black effort. The black population (37 percent of the state’s total) was represented by the Mississippi Redistricting Coalition. The court made it clear that it accepted the plan only because the Coalition, comprised of statewide and local redistricting organizing groups and members of the Legislative Black Caucus, had convinced the legislature and both political parties that this was the only way to settle the case.

ter the plan was approved, Mississippi black voters turned out in record numbers in 1992 and doubled the number of black legislators from twenty-one to forty-two, a total of 24 percent of the state’s 174 legislators.

Black voters also elected 30 percent of the state’s county supervisors. The control of public policy and the expenditure of public funds by county supervisors is considered second only to that of the state legislature. The record black voter turnout was the result of the involvement of the black population in workshops and meetings to learn how redistricting works, in the work to draw the redistricting plans, in the efforts to push for the adoption of fair plans at public hearings and in legislative committee meetings, in the education of the public, the news media, and individual legislators as to what constitutes a fair redistricting plan, and in pushing for fair plans at the county and municipal levels.

In the 1995 regular legislative election, African Americans retained all of the forty-two seats they won in 1992 and added three more, to increase the size of the black caucus to forty-five, 26 percent of the legislative body. The black caucus held the balance of power on appropriations bills and other legislation, whenever it was unified.

Prior to the 1992 special election, the only success the Legislative Black Caucus achieved through unity around a public policy issue was a holiday honoring Martin Luther King, Jr. But in 1995 the caucus led the state to ratify the Thirteenth Amendment to the U.S. Constitution to abolish slavery. Although seemingly a symbolic victory, in Mississippi symbolism is also substance.

Beginning in 1995, the Caucus, pushed and supported by grassroots community organizations, consistently defeated efforts by a coalition of Republicans and conservative Democrats to reverse the increase in black representation. It blocked moves to eliminate partisan political primaries, to create non-partisan primaries for all political offices, and to permit voters to vote in partisan political primaries regardless of party affliation. It also stopped efforts to reduce the size of the state legislature and the county boards of supervisors, a move that would have forced new redistricting and possibly undone the success in the 1991-1992 process.

The presence of this strong minority representation has had a great impact on public policy. In 1997, the state legislature, for the first time, injected $650 million over five years into public education. In 2000, the state legislature, under pressure from the grassroots Mississippi Education Working Group adopted provisions in the education accountability plan that requires parents and students to be actively involved in the formation, adoption, and implementation.

The involvement of grassroots black activists and groups in redistricting was the key to enabling the black population to elect accountable representatives in sufficient numbers to have an effect upon the formation of public policy at the state, county, and local levels.

The Power of Grassroots Organizing

By Mike Sayer

Vol. 22, No. 4, 2000 p. 21

When people work together, they build their capacity to make things happen or not happen. They build power. The capacity to impact public policy is increased when people and grassroots organizations work to establish redistricting policies and plans that are responsive to their needs and interests.

Effective grassroots organizations utilize four elements of community organizing:

Investigation: Get the information needed to develop good redistricting plans and to understand the goals of the public officials who are also drawing plans.

Education: Share information with a cross-section of stakeholders within the designated community to develop an understanding of the importance of redistricting and how best to participate in the redistricting work.

Negotiation: Build a broad base of support within the community in order to negotiate from strength with public officials on how the redistricting plans ought to be drawn.

Demonstration: Bring large numbers of people to public meetings, hearings, and negotiations to demonstrate unity.

In the past, for the most part, small groups of public officials, attorneys, and demographers have met by themselves to draw the plans at the state, county, and local levels. However, communities have the right to participate in several major ways during the process of drawing plans:

• See, get copies of, and make an independent evaluation of the merits of plans drawn by public officials.
• Attend all public meetings at which redistricting plans are being discussed, deliberated, or voted upon.
• Submit plans to the appropriate public bodies (such as the state legislature, county supervisors or commissioners, or city councilors), which have a duty to give full consideration on the same basis as plans drawn by representatives of the public body.
• Bring complaints to the attention of the Voting Section of the U.S. Department of Justice concerning any wrongdoing or unfairness in the procedures used by public bodies to draw plans.
• Make comments (evaluations as to the fairness of the plans) to the Voting Section and negotiate with the Voting Section, and the public bodies, concerning the merits of all the plans submitted.
• Bring suit in federal or state court to prevent the adoption of the plans on the grounds that they violate the 1965 Voting Rights Act or the Constitution of the United States.

Drawing redistricting plans does not require being an attorney, demographer, or engineer. Anyone can draw plans, with some training, technical assistance, and experience.

Redistricting plans are not primarily math and geometry exercises. Rather, redistricting is usually result or outcome driven. That is, people who draw plans start out with the goal that the district lines should, to the extent possible, ensure that voters have a reasonable opportunity to elect representatives who will be accountable and responsive to their needs and interests.

Other values or goals must be taken into account in drawing the plans. But, the redistricting process is sufficiently flexible to permit plans to serve several goals. It is extremely important for grassroots groups to participate effectively to protect and ensure that their interests are reflected in the plans adopted.

Grassroots communities need to build strength through unity and unity through organization in order to make their collective voice heard. They should insist on the right to provide input and feedback to those who are drawing the plans, whether they are working for the public officials or are engaged in drawing alternative plans.

Grassroots and community groups need to identify people who can develop the tools and skills of redistricting. Community people bring local expertise to the table. They know where people actually live; what the issues are that bring people together or divide them in terms of race, class, education, and other considerations; where common interests lie; which groups will be willing to work together to support candidates on particular issues and which will not; which groups of people actually vote and which do not; at which locations people are willing to go to vote and which locations are intimidating to people and will discourage voting; and which political parties people support and where they live.

Mike Sayer is program director of Southern Echo, a grassroots organization in Jackson, Mississippi.