By Leland Ware
In Page v. Virginia Board of Electors a three-judge panel held on
October 7, 2014, that a Virginia Congressional redistricting plan violated the
Equal Protection Clause of the Fourteenth Amendment because it was a racial
gerrymander.
Between 2000 and 2010, Virginia’s
population grew by 13 percent. Because the growth was unevenly distributed the
state was obligated to redraw its congressional districts to balance
populations in each district. Virginia developed plan and submitted it to the
U.S. Department of Justice for Section 5 preclearance.[1]
The plan was approved on March 14,
2012, based on a finding that it would not result in a retrogression of the
ability of African American voters to elect candidates of their choice. (A
retrogressive plan makes changes that reduce minority groups’ opportunities to
elect candidates of their choice.)
A civil action was filed claiming
Virginia used Section 5’s preclearance requirement as a pretext to pack African
American voters into Virginia’s Third Congressional District and to reduce
those voters’ influence in other districts. The redrawn District, the
plaintiffs contended, violated the Equal Protection Clause of the Fourteenth
Amendment.
The evidence showed that the legislature
subordinated traditional districting principles, such as to compactness,
contiguity and respect for political subdivisions, to racial considerations. “Packing”
is a tactic that dilutes minority votes by putting as many minority voters into
as few districts as possible to minimize the number of representatives they can
elect. Virginia’s plan packed more African American voters into what was the
only congressional district in Virginia with a majority-minority population
represented by a black incumbent, Congressman Bobby Scott. This made adjoining
districts whiter and safer for Republican incumbents.
Under the new plan the Third
District’s voting-age population grew from 53.1 percent African American
to 56.3 percent African American. Maps of the district showed it is an
oddly shaped chain of predominantly African American communities, stretching
from Richmond to Norfolk, loosely connected by the James River. The
redistricting has been described as “one of the most aggressive gerrymanders in the country.”
The legislature used
proximity to the James River to bypass white communities and connect
predominantly African American populations in areas such as Norfolk, Newport
News, and Hampton. Other evidence showed that the Third District was the least
compact congressional district in Virginia. It split more voting tabulation
districts than any other congressional district.
Virginia’s lawyers conceded that
avoiding retrogression was the legislature’s top priority in drawing the 2012 plan.
Former delegate William Janis, the legislation’s sole author, emphasized that
his foremost objective in drawing Virginia’s congressional maps was ensuring
that the Third Congressional District retained as large a percentage of African
American voters as it had under the under the existing boundaries. Janis said
he considered race to be the single, “nonnegotiable” redistricting criterion.
In cases where race is the
predominant factor the redistricting plan must be subjected to the “strict
scrutiny.” A racially motivated redistricting can be justified only when it has
a “compelling justification” and the means chosen are “narrowly tailored” to
achieving a legitimate governmental objective. In this case the Court found
that compliance with Section 5 was a compelling state interest, but the means
chosen were not narrowly tailored to achieving the legislation’s goals
The majority’s opinion noted that
the Supreme Court has repeatedly struck down redistricting plans that went
beyond what was necessary to avoid retrogression. As the Court explained,
Section 5 “does not give covered jurisdictions carte blanche to engage in
racial gerrymandering in the name of nonretrogression.” The panel ruled, 2-1,
that race was the predominant consideration when Virginia’s legislators re-drew
the boundaries of the Third Congressional District. This was a textbook case of
racial gerrymandering. The avoiding retrogression justification was a pretext for
packing African Americans in a single district.
Page v. Virginia Board of Electors shows that efforts to undermine the
voting rights of African Americans are longstanding and ubiquitous. The case is
an example of the many abuses of the “incumbent protection racket” known as
congressional redistricting.
[1]
Section 5 of the Voting Rights Act (VRA) was enacted in 1965 to prevent changes
in election practices in covered jurisdictions until the new procedures were
determined by the Attorney General, or the U. S. District Court for the
District of Columbia as not having a discriminatory purpose or effect. In Shelby
County v. Holder the Supreme Court held in 2013 that it was
unconstitutional to use the coverage formula contained in Section 4(b) of the
Voting Rights Act to determine which jurisdictions are subject to the
preclearance requirement of Section 5 of the Voting Rights Act. The Supreme
Court did not rule on the constitutionality of Section 5 itself but the effect
of the Shelby decision is that the jurisdictions identified by the
coverage formula in Section 4(b) are no longer obligated to seek preclearance
for the new voting changes.
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