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Turning Lemons into Lemonade: Making Georgia v. Ashcroft the Mobile v. Bolden of 2007.
Abstract
This article presents a discussion of the 2003 decision by the U.S. Supreme Court, Georgia v. Ashcroft, that significantly altered the retrogression standard under Section 5 of the Voting Rights Act. It seeks to draw a comparison to Mobile v. Bolden, a 1980 decision by the U.S. Supreme Court that dramatically altered the legal test for Section 2 of the Voting Rights Act, and which led to a Congressional response that overturned the holding in Mobile v. Bolden.
... What do these analyses of federal project allocation mean for voting rights and the law? Benson (2004) has argued that Georgia v. Ashcroft should be the impetus the voting rights community needs to push for stronger protections for majority-minority districts. The Court's finding in the case, though, suggests that black influence districts may be the preferred method of insuring black interests in the future and that majority-minority districts are no longer needed. ...
Do representatives elected from majority-black districts allocate more federal projects to black constituents than representatives from black influence districts? In this paper, I argue that studying distributive policy decisions - where legislative coalitions may be universal - may be preferable when assessing the efficacy of black-majority versus black influence districts. Further, when examining the allocation of distributive policy projects to African-Americans, drawing black decisive districts is critical to enhancing African-American influence. Black decisive districts are a new category of districts I introduce to the debate over voting rights and racial redistricting: they are districts that are highly likely to elect an African-American representative, yet they are districts that are still electorally competitive. I argue that these black decisive districts improve African-American substantive representation in Congress and these districts fit within the law as established in Georgia v. Ashcroft (2003).
Following the 2000 Census, Georgia redrew its fifty-six state senate districts to comply with the one-person-one-vote rule. At the time, the assembly and senate both had Democratic majorities. The governor, Roy Barnes, was a Democrat as well, and led the charge to construct a districting plan that could stem the expected Republican tide in the upcoming 2002 elections. The key to this plan was to "unpack" many of the heavily Democratic districts and distribute loyal Democratic voters to surrounding districts. In particular, black voters were reallocated away from districts with either especially high or low levels of black voting age population (BVAP) to create more districts in the 25 to 40 percent BVAP range, so-called influence districts. This meant that some districts with black populations above 55 percent or 60 percent were brought down close to the 50 percent mark. This strategy is illustrated graphically in figure 4.1. To construct this graph, the BVAPs in each district for both the existing baseline plan and the proposed plan were sorted from highest to lowest, and the difference between corresponding entries was calculated. The figure clearly shows the reallocation of black voters away from the extremes of the distribution and toward the center. The state submitted its plan directly to the D.C. District Court for preclear-ance, and the Justice Department (DOJ) indicated its intention to interpose objections to Senate districts 2, 12, and 26, whose BVAPs were slated to fall from 60.6 percent, 55.4 percent, and 62.5 percent to 50.3 percent, 50.7 percent, and 50.8 percent, respectively. The state submitted evidence showing that the point of equal opportunity - the level of BVAP at which a minority-preferred candidate has a 50 percent probability of winning - was 44.3 percent, and argued that the redrawn districts should still offer black candidates a healthy chance of gaining office. The DOJ disagreed, arguing that the state had not met its burden of proving the proposed plan non-retrogressive. The district court agreed with the DOJ and refused to preclear the plan. The Supreme Court eventually overruled in the case Georgia v. Ashcroft (539 U.S. 461), ruling that the district court had not taken sufficiently into account the state's avowed objective of increasing substantive representation, even at a possible cost (Figure presented) to descriptive representation. The Court relied heavily on the testimony of black state legislators, including civil rights leader and U.S. Representative John Lewis, who supported the plan as an attempt to expand Democratic control of state government.1 The reaction to Ashcroft was swift and heated. Karlan (2004) denounced the decision as a first step towards "gutting" section 5 preclearance. Others claimed that it "greatly weakened the enforcement provisions of Section 5" (Benson 2004). An ACLU official's reaction was that "The danger⋯ is that it may allow states to turn black and other minority voters into second-class voters, who can influence the election of white candidates but cannot elect candidates of their own race" (House Committee on the Judiciary 2005, 6). Others viewed the decision more favorably. Henry Louis Gates, for example, wrote in the New York Times that descriptive representation "came at the cost of substantive representation - the likelihood that lawmakers, taken as a whole, would represent the group's substantive interests. Blacks were winning battles but losing the war as conservative Republicans beat white moderate Democrats" (September 23, 2004, A23). At the heart of the latter set of arguments lies the notion of a tradeoff between substantive and descriptive representation: getting more of one necessarily entails accepting less of the other. This topic has been the subject of previous research: Morgan Kousser (1993) discusses the possibility of such a tradeoff in the context of influence districts, as does Richard Pildes (1995) in his review of social science research on the changing political landscape in the South. More quantitative studies of the tradeoff include Charles Cameron, David Epstein, and Sharyn O'Halloran (1996) and David Lublin (1997), both of which studies detected the possibility of an emerging tradeoff in their analyses of election and roll call data through the early 1990s. One of our goals is to expand and update this work, studying patterns of minority electability and congressional voting on minority-supported legislation for the years 1974 to 2000, and the districting plans that maximize substantive and descriptive representation. We also, for the first time, include Hispanic as well as black voters in these calculations, both to see if the patterns emerging for Hispanic representation differ significantly from black representation and to examine the degree of cross-minority support between blacks and Hispanics in elections and in the legislature. Our results show that up until roughly the mid-1980s few nonminority legislators in the South championed black causes in Congress. As a result, districting schemes that maximized black descriptive representation were identical to those that maximized substantive representation. Over the past two decades, though, these objectives diverged, so that recent increases in the number of blacks elected to Congress have come at the cost of substantive representation. For Latinos, the story is rather different. It has always been relatively difficult to elect Hispanic representatives, quite possibly due to the gap between total voting age population and citizen voting age population in concentrated Latino districts. On the other hand, white Democratic representatives have been generally supportive of Latino positions on roll call votes, much more so than Republicans. Thus there has always been a tradeoff between Latino descriptive and substantive representation, with the dimensions of this tradeoff changing little over time. The situation is much the same for blacks outside the South: supportive votes from nonminority Democrats have led to tradeoffs between the two types of representation throughout the period. Finally, we find interesting relationships between issues of black and Latino representation. There remains an almost perfect electoral separation: districts with more black than Hispanic voters rarely elect a Hispanic representative and vice-versa. Further, adding Hispanic voters to a heavily black district increases the probability that a black representative is elected, but adding blacks to a Hispanic district does little to help Hispanic candidates win office.
Following the 2000 census, the state of Georgia redrew its fifty-six state Senate districts to comply with the one person, one vote rule.1 At the time, Democrats held majorities in both chambers of the state legislature. The governor, Roy Barnes, was a Democrat as well, and he led the charge to construct a districting plan that would advantage his party in the upcoming 2002 elections, hoping to preserve Democratic control in the face of an expected Republican surge.
The symbolic importance of Barack Obama’s election is without question. But beyond symbolism, does the election of African-American politicians matter? Grose argues that it does and presents a unified theory of representation. Electing African-American legislators yields more federal dollars and congressional attention directed toward African-American voters. However, race and affirmative action gerrymandering have no impact on public policy passed in Congress. Grose is the first to examine a natural experiment and exceptional moment in history in which black legislators - especially in the U.S. South - represented districts with a majority of white constituents. This is the first systematic examination of the effect of a legislator’s race above and beyond the effect of constituency racial characteristics. Grose offers policy prescriptions, including the suggestion that voting rights advocates, the courts, and redistricters draw ‘black decisive districts’, electorally competitive districts that are likely to elect African Americans.
In 2003 the Supreme Court issued its opinion in Georgia v. Ashcroft, a case involving the redistricting of Georgia's state Senate under Section 5 of the Voting Rights Act. This paper traces the course of the Georgia litigation from the legislature through the Supreme Court, examining its impact on the future of retrogression analysis under Section 5 and its impact on the future of the section itself. In addition, it looks at the opinion by Justice Sandra Day O'Connor in the context of competing claims regarding the progress, or lack of progress, in the racial politics of the South, claims which arose again and again in the course of the litigation. The author concludes that O'Connor's re-working of the Section 5 standards was an attempt, whether successful or not, to overcome an inherent paradox of minority voting rights in the contemporary South.
Majority-minority voting districts have been advanced as a remedy to the underrepresentation of minority interests in the political process. Yet, their efficacy in furthering the substantive goals of minority constituents has been questioned because they may dilute minority influence in surrounding areas and lead to an overall decrease in support for minority-sponsored legislation. Thus, there may be a trade-off between increasing the number of minority officeholders and enacting legislation that furthers the interests of the minority community. Using nonlinear estimation techniques, we simulate the districting strategies that maximize substantive minority representation, and find that such a trade-off does exist. We also find that, outside of the South, dividing minority voters equally across districts maximizes substantive representation; inside the South the optimal scheme creates concentrated districts on the order of 47% black voting age population. In addition, minority candidates may have a substantial chance of being elected from districts with less than 50% minority voters.
Contrary to Cameron, Epstein, and O'Halloran's article (1996), (1) racial redistricting remains vital to the election of African Americans to the U.S. House, and (2) the tradeoff between black descriptive and substantive representation is actually greater in the South than in the North. Substantive and methodological errors explain why they arrived at their findings. Specifically, their analysis ignores the effect of the presence of Latinos on the election of African Americans. Ironically, due to the very policy assessed in the article, Cameron, Epstein, and O'Halloran's data set does not allow them to examine the link between the racial composition of a district and the ideology of its representative. In addition, they do not consider that racial redistricting not only changes the aggregation of seats into votes but also indirectly boosts the Republican share of votes and seats.
Recent and otherwise unrelated Supreme Court opinions take a peculiar approach to defining constitutional norms. According to these opinions, government acts unconstitutionally when it reduces pre-existing protection of some favored interest, but not when it arrives at the same place via a different route. The direction of movement takes precedence over the substantive content of the law. We call this general approach "non-retrogression." In its purest form, the non-retrogression principle holds that government may extend protection beyond what the Constitution requires, but it cannot retreat from that extension once made. While variations on non-retrogression have been sensibly employed in statutory contexts--most prominently, under Section 5 of the Voting Rights Act -- the article questions non-retrogression as a principle of constitutional law. After locating the birth of non-retrogression as a constitutional principle in Warren Court race cases, we describe its renaissance in recent constitutional cases, most prominently Romer v. Evans and the litigation over California's Proposition 209. The article proceeds to explore the doctrinal, conceptual, and jurisprudential weaknesses of non-retrogression as a principle of constitutional law. It compares non-retrogression to other constitutional doctrines that confuse procedure and substance and juxtaposes it to the jurisprudence of traditionalism. Finally, we suggest that the recent reemergence of non-retrogression is symptomatic of broader problems with the current Supreme Court's approach to constitutional law. While the Rehnquist Court borrowed from the Warren Court both the non-retrogression principle and the habit of judicial activism, the authors argue, it lacks a comparable agenda that would give direction to non-retrogression by pointing to which way is forward.