Friday, June 17, 2011

Five-Cent VRA Review

Whether anyone is getting worked by the CRC's lines, who is getting worked, how hard, and how it's being done is something that might end up in court and if so, will get there under a Voting Rights Act review. So what's this VRA business anyway?  Here's your nickel tour of the issue. (Warning, gross simplification of complex and consistently evolving area of law follows. Please correct my outright inaccuracies in the comments section.)

The United States Constitution, through the 14th Amendment’s Equal Protection Clause, prohibits redistricting that intentionally dilutes the voting strength of minority groups.

Additionally, Section 2 of the Voting Rights Act further prohibits plans that have the effect of diluting minority voting strength, whether or not the effect was intentional.

To establish a Section 2 violation, litigants must show that based on all the circumstances, the electoral process is not equally open to participation by the members of a minority group in that its members have fewer opportunities than other members of the electorate to participate in the political process and to elect representatives of their choice. 

Who Doesn't Love Some Prongs?

As with all great topics of common litigation, the Court has developed a three part test as a threshold for establishing a Section 2 violation, commonly referred to as the Gingles requirements after the case of the same name:

  1. The harmed group is sufficiently large and geographically compact to constitute a majority in a single district.
  2. The minority group is politically cohesive.
  3. The majority votes sufficiently as a block to enable it usually to defeat the minority group’s preferred candidate.
If a group can show it meets the above threshold factors, it still must demonstrate that based on a totality of the circumstances, the group possesses less relative opportunity to elect a representative of its choice.  Don't forget this last, umbrella test.  It can be more important and decisive than you might think.

How might a violation look?

Frequently, the first sign of some bad district mojo is a bad-looking district.  Ribbons of connective fiber, the skipping of populations, demonstrating a love of the zen by making a lot of yins and yangs on the map can give groups a reason to lawyer up. Of course, the courts have discussed these non-compact works of abstract art.

The courts' evolution on district shape goes roughly like this:
1.)    To look closely at it on behalf of any one group, you need to show us some numbers first.
2.)    But those numbers won’t necessarily prove anything.
3.)    Also, we no longer care if you were trying to discriminate or not, if you ended up discriminating, you’re toast.
4.)    And if the district looks a little wacky, that might be enough for us to look at it.
5.)    But don’t think drawing a perfectly circular or square district gets you off the constitutional hook.
6.)    And we didn’t mean there could never be a Rorschach-shaped district.

Everyone clear?

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