As African-Americans overwhelmingly vote Democratic, Republicans want to cram the Democratic vote into as few House districts as possible. There are two ways to dilute that influence in the redistricting wars: “cracking,” or spreading black voters out across multiple House districts, and “packing,” or putting as many black voters as possible into the fewest number of districts.
Cracking the minority vote can easily run afoul of the Voting Rights Act’s 1982 amendment, which mandates that minority voters be able to choose their representatives.
Packing, on the other hand, gives black politicians a better chance at getting elected, while diluting black voters’ influence on other districts. While egregious packing can be challenged in court, it is harder to fight. In the ‘80s and ‘90s, Republicans developed an “unholy alliance” strategy to exploit this sytem.
By packing Democrats into fewer and fewer House districts to protect a handful of black incumbents, Republicans are expanding their control over all 435 House seats by limiting Democratic influence to the smallest number of House seats possible.
“The Voting Rights Act has become one of Democrats’ biggest roadblocks to taking back the House,” said redistricting expert Dave Wasserman of the Cook Political Report. “This pattern of heavily minority districts and increasingly-whitewashed surrounding districts means Democrats could win the total vote for House by several points and still fall more than a dozen seats short of 218.”
But that could now be changing.
“In the 1990s, all of the [electoral] cases were favoring this unholy alliance,” said redistricting expert Michael McDonald. “ Those conditions have dramatically shifted. More often we’re finding situations where it’s not in the black community’s interest to side with Republicans.”
Republicans no longer need much help from African-American lawmakers. In many Southern states, the GOP controls the process for the first time in decades. And where they don’t, black Democrats are seeing more value in being in the majority.
In Virginia, Rep. Bobby Scott (D) has been open to drawing down the amount of black voters in his district in order to create a second significantly African-American district. In Maryland, black lawmakers backed a plan that helped Democrats by spreading out minority voters — despite objections from Rep. Donna Edwards (D). Black leaders are pushing back on attempts by Rep. Corrine Brown (D) to preserve her oddly-shaped minority-majority seat.
Some Democrats have suggested trying to loosen the Voting Rights Act restrictions to circumvent the problem. But legal experts are now arguing that some African-American districts could be redrawn as less than 50-percent minority, creating more competitive districts while still meeting the standard of letting minority communities elect their chosen representatives.
A 2009 U.S. Supreme Court ruling (Bartlett v. Strickland) found that “coalition” districts — in which African-Americans are a sizeable minority but not a majority — are not protected under Section 2 of the Voting Rights Act.
But that doesn’t mean that a majority-minority district cannot be redrawn as a coalition district and still meet the Voting Rights Act standards as representing that community.
Skeptics argue that the Supreme Court strongly suggested in Bartlett that the 50 percent line should be the standard. They also point to a recent Justice Department decision in Louisiana as proof that this argument won’t hold.
Louisiana is one of 17 states that must have all or part of their map pre-approved by the DOJ under Section 5 of the Voting Rights Act as not diluting the minority vote. The Justice Department approved a GOP-drawn map in Louisiana that had one minority-majority district when two were possible.
But in pre-approval of state maps, the DOJ only looks at backsliding — whether there is less minority representation than before. It doesn’t preclude further court challenges under Section 2, which protects minority choice more generally. (Texas, for example, currently faces both Section 2 and Section 5 challenges.)
The argument for representing majority-minority communities with districts that are less than 50 percent minority is fairly new.
“I have no doubt it will eventually be decided by the Supreme Court, but nobody knows when it will come up,” said Justin Levitt, an elections law professor at Loyola Law School. “I don't know if they'll end up deciding this cycle or not. There have only been four cycles since the Voting Rights Act, and the Supreme Court has given us different rules in every cycle so far.”
In Ohio, Republicans are reaching out to the state’s black caucus in hopes of cutting a deal on new redistricting maps, avoiding a statewide referendum. What black lawmakers decide to do will be a sign of how much times have changed.
If most black lawmakers side with Democrats, this new interpretation of the Voting Rights Act could help the party expand its reach. But there’s still a good chance a policy intended to help minority representation might help Republicans remain in the House majority after 2012.