Chapter 16 Finding Middle Ground for State Legislative Reapportionment

CHAPTER 16 FINDING MIDDLE GROUND FOR STATE LEGISLATIVE REAPPORTIONMENT

TOMMIE S. CARDIN AND B. PARKER BERRY

The 2010 cycle of legislative redistricting presented drafters with new challenges based on refined contours of familiar federal principles resulting from both regulatory oversight and court decisions.¹ Of course, these challenges were not unusual given the fluidity of voting rights law. Most of the challenges were nuanced, not resulting in any major shifts in the approach to the redistricting process.

Things will be different in the 2020 cycle of legislative redistricting. Significant changes have already occurred which will have a measurable impact on the process of drafting district lines in 2021. While some of these changes may seemingly be straightforward in theory, the practical effects will not be understood until the actual drafting process begins. And, while we know of certain changes now, there are several court challenges in the queue that may further alter the landscape. It is difficult to predict how different things will be in approximately five years until the next legislative cycle rolls around.²

For now, though, we know that one of the most significant events in the history of voting rights litigation has occurred—the demise of section 5. With the death of section 5, redistricting parameters change dramatically. Also, by a narrow margin, the U.S. Supreme Court has provided the first guidance on racial gerrymandering claims since ushering in the cause of action in the 1990s. These changes alter the redistricting paradigm for legislative plan drafters. There is hardly a dull moment for those charged with the responsibility for implementing these changes.

I. Evolution of Legislative Redistricting

In order to find middle ground for the upcoming cycle of legislative redistricting, it is helpful to review the evolution of interpretation and application of the Voting Rights Act to fully understand the context for going forward. This is helpful because drafters will not be confronted with a clean slate. When we arrive at the next round of legislative redistricting, the districts in existence will have been crafted based on the legal principles previously in place. Drafters will start with benchmark plans, which have been developed under an analytical framework that will be altered going forward. In order to know where to go in the future, we need to understand our past.

While there were certain significant developments affecting redistricting in the early years following initial passage of the Voting Rights Act of 1965 (VRA),³ some of the most relevant developments affecting modern-day districts started in the early 1990s. During the 1990 cycle of legislative redistricting, many states covered under section 5 of the VRA found themselves attempting to maximize the number of majority-minority districts in an effort to satisfy the interpretation of preclearance regulations promoted by the Department of Justice's (DOJ) new maximization policy. As a result of this policy, known as the "max-black" policy, other states developed similar plans under this rubric and the primary goal in drafting shifted to maximizing the number of majority-minority districts with traditional redistricting principles being a secondary goal.⁴ However, as quickly as this new focus on maximization of majority-minority districts was ushered in by the DOJ, it was ushered out by the Supreme Court in Miller v. Johnson.⁵

In Miller, the American Civil Liberties Union (ACLU) submitted a redistricting proposal to the Georgia Legislature on behalf of the Black Caucus of the Georgia General Assembly that became known as the "max-black" plan.⁶ This plan created two new majority-minority districts and maximized black voting strength by pushing the percentage of black voters within its majority-Black districts as high as possible.⁷Upon review by the DOJ, several of Georgia's other proposals were denied preclearance on the grounds that there were not enough majority-minority districts.⁸ After being spurned twice by the DOJ, Georgia set out to create three majority-minority districts to gain preclearance using the ACLU's "max-black" plan as its benchmark.⁹ Ultimately, the plan submitted by Georgia and precleared by the DOJ was substantially similar to the ACLU's "max-black" plan, creating three majority-minority districts with a high percentage of Black population in each district.¹⁰

The challenge presented to the Court in Miller was that Georgia, under the DOJ's implied "max-black" policy, violated the Equal Protection Clause by racially gerrymandering districts. In not addressing the raised constitutional question but finding the DOJ's "max-black" policy as in impermissible interpretation of beyond what Congress intended for section 5 of the VRA, the Court provided:

Instead of grounding its objections on evidence of a discriminatory purpose, it would appear the Government was driven by its policy of maximizing majority-black districts. Although the Government now disavows having had that policy . . . and seems to concede its impropriety . . . the District Court's well-documented factual finding was that the Department did adopt a maximization policy and followed it in objecting to Georgia's first two plans. . . . In utilizing § 5 to require States to create majority-minority districts wherever possible, the Department of Justice expanded its authority under the statute beyond what Congress intended and we have upheld.¹¹

In addition to the Court's decision in Miller eliminating the "max-black" policy, it also pulled in the reins on the use of race in drafting districts. In the now famous Shaw v. Reno decision, the Court held that race could not be the predominant factor in drawing district lines.¹² To determine whether race has been the predominant factor in redrawing districts, the Court simply instructed that the drawing of the district(s) be explained on grounds other than race, such as the traditional districting principles of compactness, contiguity, and respect for political subdivisions.¹³

Consequently, when we arrived at the 2000 cycle of legislative redistricting, drafters faced a dilemma. How were they to achieve compliance with section 5 of the VRA (and section 2 for that matter) and avoid using race as the predominant factor in redrawing district lines? This analytical framework was challenging to say the least. On the one hand, drafters had to pay close attention to race to avoid retrogression under section 5. On the other hand, if drafters relied too heavily on race, they ran the risk of a Shaw violation. Undoubtedly, drafters faced a delicate balancing act. How could this be achieved effectively in a section 5 jurisdiction?

Mississippi provides a successful example. In 2002, the DOJ precleared both the state House and Senate redistricting plans adopted on the first try by both legislative chambers.¹⁴ The Mississippi House plan slightly increased the number of majority-minority districts from the previous districting cycle, while the Mississippi Senate plan maintained the same number of majority-minority districts, as compared with the benchmark.¹⁵ However, no new majority-minority districts were created from scratch, but several districts with significant minority voting-age population in the benchmark plans were converted to majority-minority districts.¹⁶ While DOJ precleared both plans, several plaintiffs challenged the Senate plan under a reverse Shaw—that is, that race (Caucasian) was the predominant reason that a district in South Mississippi was drawn whereas it should have been a majority-minority district.¹⁷ The three-judge panel upheld the state's approach, relying heavily on the testimony of the chief drafter of the plan indicating the predominance of traditional redistricting principles and not race to craft the districts.¹⁸

When we arrived at the 2010 cycle of redistricting, while there had been nothing of the ilk of a Shaw change in redistricting, there were several refinements of the analysis applicable to retrogression under section 5 and the one-person, one-vote requirement, which would impact drafters' decisions. For example, one such refinement came from Reno v. Bossier Parish School Board, whereby the Court held that the "intent" under section 5 was limited to the intent not to retrogress as opposed to any intent to discriminate.¹⁹ Further, in Georgia v. Ashcroft, the U.S. Supreme Court implied that the creation of minority influence districts at the expense of majority-minority districts might satisfy the nonretrogression standard under section 5.²⁰

In response to this line of decisions, especially Ashcroft, appearing to weaken the applicability of section 5, Congress adopted an amendment to section 5 to provide that any purpose to discriminate would be a basis for denial of preclearance as opposed to a more restrictive intent not to retrogress.²¹

Thus, in the 2010 cycle, the focus was again on retrogression under section 5. The delicate balancing act between section 5 and Shaw still existed, with the complicating layer of addressing retrogression in the proper way under the newly amended language. In efforts to provide some guidance to drafters in light of the amendment, the DOJ revised its regulations and issued its "Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act"²² and "Procedures for the Administration of Section 5 of the Voting Rights Act of 1965."²³ In culmination, these revised guidance and procedure documents framed the preclearance analysis into two key questions of whether the submitting jurisdiction met its burden of establishing that the plan (1) was adopted free of any discriminatory purpose and (2) will not have a retrogressive effect.²⁴

With regard to the one-person, one-vote constitutional requirement, the Supreme Court had established that exact population equality was not required in state legislative districts.²⁵ An overall maximum deviation within 10...