Race and Redistricting: Myths, Truths and Facts

By Todd A. Cox

From Southern Changes, Vol. 24, No. 1-2, 2002 pp. 13-14

Federal court decisions regarding redistricting over the past several years have caused some to question how district line drawers can create redistricting plans that will provide all voters equal opportunity to elect candidates of choice. Since Shaw v. Reno, the courts have clarified the criteria for drawing district lines and made it clear that race can be a factor in redistricting and these clarifications have supported lawmakers and grassroots organizers who sought redistricting plans that allow fair representation for minorities in many states and localities since 2000.

But, the process of redistricting is not complete throughout the South. States like Louisiana and North Carolina are still developing plans and, more importantly, countless communities across the South have yet to draw new city council, county commissioner, and school board plans. For this reason, it is imperative that local activists supporting fair representation for minorities are well informed of the role which race may play in redistricting. Line drawers may still try to argue against creating districts that fairly reflect minority voting strength. These arguments will essentially be based on myths about the role of race in redistricting. In order to advocate for the creation of fair redistricting plans, be prepared to debunk these myths.

Myth: Race cannot be considered during redistricting.

Truth: It is okay to be conscious of race during redistricting. It is, however, important to avoid violating "traditional redistricting principles." These include: making sure that the districts are compact and contiguous (ensuring that all parts of the district touch); respecting political subdivisions; and preserving communities of interest.

States and local jurisdictions are permitted to express and meet political goals even if the result is the creation of majority-minority districts. Hunt v. Cromartie, issued in April 2001, is the latest word from the U. S. Supreme Court on the role of race and politics in redistricting. In that case, a group of white voters sought to have North Carolina's new 12th and 1st Congressional Districts ruled unconstitutional racial gerrymanders. The Supreme Court, however, found the 12th District constitutional. The Court pointed out that the North Carolina General Assembly simply sought to create a district containing very loyal Democratic voters and in so doing created a district that had a large concentration of African Americans who tend to vote Democratic, writing, "A legislature trying to secure a safe Democratic seat is interested in Democratic voting behavior. Hence, a legislature may, by placing reliable Democratic precincts within a district without regard to race, end up with a district containing more heavily African-American precincts, but the reasons would be political rather than racial."

Myth: Jurisdictions are not required or permitted to create majority-minority districts.

Truth: Jurisdictions are permitted and may even be required to create majority-minority districts. Those drawing lines during the redistricting process are required to comply with Section 2 of the Voting Rights Act of 1965 which forbids the adoption of redistricting plans that have the result of denying voters an equal opportunity to participate in the political process because of their race, color, or membership in a language minority group. Those drawing lines must avoid creating redistricting plans that result in diluting the voting strength of minority voters. Dilution occurs when concentrated minority populations are fragmented or split between districts or over-concentrated in a district, resulting in minority voters having less of an opportunity to elect their candidate of choice than other voters.

Despite the requirement that line drawers not dilute minority voting strength, some individuals and groups may still advocate for dismantling a majority-minority district and spreading its voters between various districts in order to achieve some partisan political advantage. The determination of whether a particular redistricting plan violates Section 2 is very complicated and specific to the area being examined. It requires complex political and social science analyses of electoral behavior and of a community's political history. Without this analysis, it would be inappropriate for those drawing district lines to dismantle majority-minority districts or fail to create them merely based, for example, on anecdotal information of minority electoral victories or hypothetical promises of future success.

Myth: The redistricting process is closed to the public.

Truth: Redistricting should be an open process. The redistricting process is open for participation by anyone, including individuals and grassroots organizations.

To get involved, first, educate yourself about the redistricting process in your state and community. Find out the redistricting schedule, the timing for hearings and developing plans, and how you can participate. You should get a copy of any proposed redistricting plans from the body charged with redistricting in your community and find out if the state or local government will provide the public access to redistricting computers so that you may develop your own alternative plans. Also, you should familiarize yourself with the census population data for your community, evaluating population characteristics and assessing the various demographic trends that have developed over the last decade. This data is available from various sources, including the U.S. Census Bureau.

Second, assemble the information you need to make your case for a fair redistricting plan and share it with redistricting officials. Make sure information proving the need for the creation of a particular majority-minority district is included in the redistricting record. This can take the form of letters, public hearing testimonials, studies, reports, articles, or expert analyses and should include:

• maps showing that reasonably compact majority-minority districts can be drawn;
• an examination of whether voting is racially polarized in your community;
• an assessment of the history of discrimination in your community and in the state, particularly to voting;
• a list of current electoral practices that have a discriminatory impact on the ability of minorities to cast an effective vote;
• an assessment of the extent to which minority candidates are excluded from nominating processes;
• an assessment of the social and economic disparities between minorities and whites in your community and the state in areas such as education, employment, and health;
• examples of overt or subtle appeals to or reference to race that have been made in elections;
• a record of the electoral successes and losses suffered by candidates of choice of minority voters;
• the lack of responsiveness of the governing body being redistricted to the needs of the minority community; and
• an assessment of how insubstantial a jurisdiction's policy reason may be for not creating majority-minority districts and maintaining the current plan.

Third, some jurisdictions--including many in the South--are required to submit their redistricting plans to the federal government for review under Section 5 of the Voting Rights Act of 1965. Under Section 5, certain jurisdictions with a history of discrimination in voting ("covered jurisdictions") must submit any changes in law that could affect voting, such as redistricting plans, to either the Department of Justice (DOJ) or the federal district court in the District of Columbia for review to make sure that the law is not racially discriminatory. Even if a jurisdiction is only partially covered by Section 5, congressional and state legislative redistricting plans for the entire state must be submitted for review. Most jurisdictions submit voting changes to the DOJ which has sixty days to review and decide either that a given change is not discriminatory and approve or "preclear" it or that the change is discriminatory and disapprove or "object to" it. The states covered entirely under Section 5 are: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia. States of which only certain counties or towns are covered under Section 5 are: Arizona, California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota.

The DOJ welcomes the participation of individuals and community groups during the Section 5 process. Your goal should be to assist the DOJ in making a decision and your comments should include your perspective on the facts leading to the creation of the proposed redistricting plan. Your letter should be addressed to Chief, Voting Section, Civil Rights Division, Department of Justice, P.O. Box 66128, Washington, D.C. 20035-6128. The envelope and first page should be marked "Comment under Section 5." Also, you may call the DOJ with your comments at: 1-800-253-3931 or: 202-307-2385 or arrange to meet with the Department to discuss the proposed plan. You may check the status of the DOJ's review by visiting the Voting Section's website at: www.usdoj.gov/crt/voting/index.htm. After the DOJ has made its determination, you should receive a copy of the decision if you participated.

It may be beneficial for you to seek the assistance of experts--a demographer, historian, or political scientist--who can help you in collecting and developing the information you will need during the redistricting process. A demographer uses census data to draw or redraw redistricting maps and can analyze the proposed redistricting plans and create alternative plans on your behalf. A historian will study the political and social history of your community, providing information about race relations and the interests that all members of your community have in common, and that, therefore, should be respected during the redistricting process. A political scientist will analyze election information to determine voting patterns among voters, including the degree to which minority voters have an equal opportunity to elect candidates of their choice. You may also wish to seek the aid of an attorney who can suggest the types of experts you need, provide advice about the redistricting process, and provide important legal arguments on your behalf in court or before the DOJ.

Redistricting offers a chance to maintain or alter the political dynamic on elected bodies. The right to vote is one of the most precious rights we enjoy in this country. Participating in redistricting gives true meaning to the right to vote by helping to create electoral plans that afford all voters an opportunity to participate in the political process.

At the time of this writing, Todd A. Cox was an Assistant Counsel with the Washington, D.C. office of NAACP Legal Defense and Educational Fund. For more information about its political participation program or to request copies of publications, call: 1-800-221-7822.