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The 2020 Reapportionment And The Voting Rights Act

We’re pleased to announce that Sean Trende, the shrewd senior elections analyst for RealClearPolitics, will be contributing regularly to the Crystal Ball. His first piece looks at the future of majority-minority House districts in northern states, and how in some instances it will be difficult to maintain these districts as some of these states lose House seats after the next census. Follow Sean on Twitter at @SeanTrende.

In late December, psephologists received a belated Christmas present in the form of the 2013 population estimates from the United States Census Bureau. While relatively uninteresting in and of themselves, the figures do allow us to further estimate what the next congressional apportionment will look like. In the first few years after the census, analyses along these lines are mostly parlor games that should be clearly marked “for entertainment purposes only.”

But with each passing year population numbers get locked in, and it becomes increasingly difficult to significantly alter the trajectory of population growth. By this point in the 2000s, our estimates for 2010 were a decent approximation of what actually occurred.

The Crystal Ball’s Kyle Kondik recently looked at the states that would be expected to gain and lose seats as a result of the census, and concluded that although seats are moving from bluer states to redder states, Republicans will likely be unable to use redistricting to press their edge in Congress much further.

I want to look at this from a slightly different angle, and lay down a marker for 2020: While the major fight will, as always, be over the partisan makeup of the districts being drawn, the fight over the future of majority-minority districts will rival it. But while we have plenty of experience with partisan fights over redistricting and know how to deal with them, the coming fight over the death of some majority-minority districts is basically without precedent.

We first need an understanding of the basics of the Voting Rights Act (VRA) as it relates to redistricting. Before we undertake that inquiry, we need an important caveat about the scope of this piece: The Voting Rights Act as it relates to redistricting is an extremely complicated subject, and one that is constantly in flux. So what follows is necessarily a rough outline; use it as the basis for an answer on your law school exam at your own risk.

The Supreme Court of the United States has interpreted Section 2 of the VRA to require states to draw districts that will tend to elect a candidate of a minority group’s choice if (a) the minority group is compact and will comprise a majority of the inhabitants of the district; (b) the group is politically cohesive; and (c) white voters will vote in blocs to defeat the minority group’s preferred candidate.

We will look at these factors in turn. Most people only focus on the first prong, and only half of that prong to boot: that the minority group must form a majority of the district’s inhabitants. But the district must be geographically compact as well, else the Gingles factors (named for the preconditions under which a district can be challenged under Section 2 of the VRA) won’t be triggered. In fact, drawing non-compact majority-minority districts may trigger court scrutiny and risk having the district declared an unconstitutional racial gerrymander (although that, too, is a very complicated issue).

This compactness requirement has significant implications for drawing majority-minority districts in shrinking states. A state that loses in reapportionment necessarily sees the population of its remaining districts increase significantly. So if a state has majority-minority districts that are on the verge of losing their majority-minority status, losing an additional district could be fatal.

Let’s look at the states likely to be affected by redistricting, starting with New York. The Empire State presently has a number of majority-minority districts, but I want to examine the African-American majority districts. There are three: The Queens-based Fifth, which is presently 51% African American, and the Brooklyn-based Eighth and Ninth, which are, respectively, 56% and 53% African American.

Unless there is a surge in immigration from the Caribbean Basin or Africa itself, it is difficult to see how all three of these districts can be maintained. Each of those districts will have to add somewhere in the neighborhood of 30,000 residents. But only one of the adjacent districts has a population that is more than 10% African American. In other words, it will be difficult to avoid adding substantial nonblack populations to these districts. This could drop them all below the 50% African-American threshold.

This presents two challenges. First, the Queens-based Fifth actually can be maintained as a majority-minority district. It abuts the other district that contains an African-American population greater than 10%: the Nassau County-based Fourth. About the only option for map-drawers would be to drop minority-plurality precincts in central Queens, and to extend the district over toward Hempstead in Nassau County. This was once former Sen. Al D’Amato’s (R) political base, but today is both heavily Democratic and minority.

But removing some 40,000 voters from the Fourth District, 90% of whom voted for Barack Obama, would leave the Fourth leaning Republican, with no obvious source of additional Democratic votes nearby to offset the loss. (The seat is currently held by retiring Democratic Rep. Carolyn McCarthy and gave 56% of its votes to President Obama in 2012.) The fight that would erupt among Long Island Democrats in this event would be fierce.

The other two black-majority districts will pose a challenge of a different sort. Both could probably be maintained as plurality-minority districts that would tend to elect the candidate of African Americans’ choice (although continued upper-middle class white immigration to northern Brooklyn could alter this). Remember, however, that the Voting Rights Act requires majority-minority districts. Would redistricters be required to keep one of the two districts with an African-American majority, at the expense of tilting the other district toward not electing a candidate of African Americans’ choice? It seems like a strange outcome, but it’s plausible under current interpretations of the act.

A similar conundrum presents itself in Ohio. To keep the Eleventh District an African-American majority seat, redistricters extended it out of Cleveland and down into Akron. It is now 54% African American. Despite its increasingly odd shape, it is less heavily minority than it was in 1980 (58% black) or 1990/2000 (55% black).

Once again, the problem is that there just simply are not enough African-American adults to keep it majority-minority without further distorting the district. Under the 2010 census numbers, Ohio districts would have to have 770,000 residents if the state had 15 districts overall (Ohio has 16 seats now but could lose another district after 2020). According to census data, there are only 436,000 black residents of Cuyahoga (Cleveland) and Summit (Akron) counties. So a line drawer would have to incorporate virtually all of the African-American population of these counties to keep the district majority-minority, without adding too many whites. This is nearly impossible, given that only a handful of precincts bordering the Eleventh have even African-American pluralities.

If Republicans control redistricting, they could try to extend the district eastward toward Youngstown, trying to keep it majority-minority, which Democrats might challenge, credibly, as an unconstitutional racial gerrymander. If Democrats control redistricting, they would likely resist these efforts, hoping to disperse the African-American population and damage GOP chances in neighboring districts. This could create an odd coalition of Republicans and blacks versus Democrats on redistricting, similar to what we saw emerge this cycle in Florida, Missouri and in central Ohio.

Additional problems could arise for Democrats in Illinois. There are three African-American districts in Chicago, including the First District, which has elected an African-American representative since the 1920s. None has an African-American population exceeding 55.5%, and the First District — which was extended far into the suburbs in redistricting — is down to a 51% African-American population. None of the neighboring districts has a substantial African-American population, so again, at least one of these districts will be in jeopardy.

Michigan is our last state, and it illustrates the perils of dropping the African-American share of the electorate by too much. It has two majority-minority districts, and both have a large enough minority population that they can probably be maintained as majority-minority districts, although doing so requires drawing bizarrely-shaped districts that could make Rep. Sander Levin’s (D, MI-9) white working class district into a swing district.

But in 2012, the African-American share in both districts was necessarily lowered when Michigan lost a district, and in a low-turnout primary, a white Democrat from the suburbs won a seat that had been held by African Americans since the 1950s (Rep. Gary Peters, now running for the U.S. Senate). So the threshold for a functional VRA seat may be above 50% in Michigan.

Further complicating this is the fact that many Democrats would prefer to weaken majority-minority districts. Part of the Democrats’ challenge in winning the House is that the VRA forces them to place their most loyal supporters into districts with one another. If Democrats could weaken these districts, they could dilute Republican strength in the suburbs and create more Democratic districts. We see this with the ongoing Florida litigation, where Democrats are urging the dismantling of two African-American plurality districts in the hopes of weakening neighboring districts currently held by Republicans.

Remember also that there are two other requirements for a majority-minority district: racially polarized white voting and minority voting cohesion. The former has been breaking down, especially in northern states. We’ve seen minority candidates elected to Congress in white-majority districts in places like Indiana, Minnesota, Ohio and Wisconsin. An African-American Republican has a good chance at winning an 87% white district in Utah. Of course, we also have an African-American president who didn’t win the white vote, but against whom whites did not bloc vote in most northern states.

These examples are insufficient evidence to demonstrate that white candidates no longer bloc vote to defeat candidates of minority voters’ choice as a general matter. But what if this trend continues throughout the decade? At some point in the future, racial bloc voting could weaken enough that the VRA no longer requires majority-minority districts in some Northern states.

At the same time, we may find ourselves presented with increasing questions about the cohesiveness of the minority vote. It’s often overlooked, but Republican congressional candidates won at least 35% of the Hispanic vote in 1994, 1998, 2000, 2002, 2004 and 2010. The Republican presidential candidate performed well in 2000 and 2004. We assume that years like 1996, 2006, 2008 and 2012 represent the rule rather than the exception, and there are good arguments for this view. But what if Republicans perform well with Hispanics in 2014 (the president’s job approval is weak with this group right now), and a candidate with a broader Hispanic appeal than Mitt Romney wins the GOP nomination in 2016? At some point, the assumption of Hispanic cohesiveness may need to be questioned.

We know the template for fights over partisan redistricting: We’ve been having them for almost as long as we’ve had parties. But the template for shrinking VRA districts is heretofore unknown, and presents fascinating potential coalitions between minority groups and Republicans. While I wouldn’t predict any sort of realignment on the basis of these coalitions, I would suggest that, because of these upcoming fights, the post-2020 redistricting will be unlike anything we’ve seen.