By Krist Novoselic
In 1954, the Supreme Court of the United States (SCOTUS) issued its Brown v. Board of Education decision; which put an end to the doctrine of “separate but equal”. This unanimous ruling struck down the notorious Plessy v. Ferguson — an 1896 decision that propped up a regime of racial segregation lasting for generations. A decade after Brown, vestiges of segregation still existed in state and local election law. As a result, a broad-based, grassroots civil rights movement took action. To this day, the federal Voting Rights Act of 1965 (VRA), a centerpiece achievement of the civil rights movement, looms large over elections in the United States. The goal of this landmark legislation is to break down statutory barriers to political representation such as literacy tests, poll taxes and other voting rules meant to exclude. As a result of the VRA, elections today are reflecting more racial diversity than ever before. This demonstrates the success of the VRA.
On the other hand, the status quo of civil rights advocacy is far from dynamic. Civil rights issues have been drawn into the political polarization that currently grips American politics. We find the Act repeatedly manipulated by political elites of both major parties to maximize their electoral strength. Instead of broad-based, grassroots efforts, the battles over civil/voting rights within legislative reapportionment are fought among attorneys. The resulting course of law is a patchwork of civil rights rulings, some at odds with the Act itself. These fights occur at all levels of government; for seats in the U.S. House of Representatives; who controls the floors of various state chambers; on down to counties, cities and other local jurisdictions. Those who control and prevail with the drawing maps for this type of election effectively become Masters of the Political Universe. This article looks at how political elites tend to focus on geographical districting with single-seat, winner-take-all elections as a remedy to VRA cases.
While the VRA has been successful with electing minorities, measuring legislative responsiveness in the United States Congress shows poor results. This article examines legislation in the House of Representatives regarding immigration—an important concern to Latino voters—and how this issue is languishing as a result of distortions caused by partisan manipulation of district lines.
I conclude by suggesting some form of modified at-large voting as a way of keeping omnipotent political elites in check.
Concerns over the VRA and ethnic minorities efficacy with government have been expressed for decades. Guinier has criticized the single-member district as a remedy to minority vote dilution and how alternative-voting systems could effectively connect more people with their representatives (1994). Issacharoff, Karlan and Pildes in the legal textbook The Law and Democracy, compile then examine many cases regarding the VRA and redistricting. They also look at alternative voting methods (2012). Engstrom and McDonald (2003) not only look at reform efforts like district elections that increase minority representation, they consider the efficacy these communities have with government once their candidates are elected. Empirical data shows districting as a success in electing minorities, while the latter regarding efficacy has, at best, mixed results. Wallace (2014) offers similar research regarding Latinos. She looks at roll call votes and bill co-sponsorship in the 112th Congress — when Democrats had complete control. She picks bills regarding immigration, labor and education because she says these are “high salience issues” for the Latino community. Her study suggests that Latino representatives are more active on these issues than their non-Latino colleagues.
Polarization in the United States
Our nation has hardly achieved a post-racial social condition. Every week brings news of another black man perishing at the hands of white police officers. Regardless of the circumstances of each instance, the painful legacy of racial conflict in the United States lingers over these tragedies. Recent events in Maryland and Missouri reveal the sad fact that we still have race riots in our country. Racial unrest is an expression of the racial unease in our nation. This uncomely fissure within our society also infects the public ballot itself.
In August of 2012, voters in Yakima Washington overwhelmingly voted for an Anglo surnamed judicial candidate over a Hispanic one. Bruce Danielson was an obscure attorney who barely campaigned against his opponent Steve Gonzalez, a sitting State Supreme Court justice who won key endorsements, raised financial contributions and ran a conventional campaign. Yet Danielson won over 70 percent of the vote in Yakima County — winning the most votes of any statewide candidate on the primary ballot. Racially polarized voting played a role in the outcome. Evidence strongly suggests dominant white voters in this contest essentially rejected the Spanish surname. While Gonzalez ultimately won the statewide vote, recent studies show how political choices nationally also tend to be divided among racial lines.
According to a recent report by the Joint Center for Economic and Political Studies, race and partisanship are closely aligned. They say the 2012 presidential election “pitted 93 percent of blacks, 73% of Asian Americans, and 71% of Latinos on the Democratic side, against the clear majority of whites (at 59%) on the Republican side” (2015 p. 18). There are similar findings from the Pew Research Center; 80% of blacks and 56% Latinos tilt Democratic. Republicans hold a 49 percent to 40 percent lead over Democrats with party identification among whites (2015 p. 3). The report shows the gap is even larger in significant sub-groups of whites.
The conflation of racial polarization with political polarization should be a cause for concern. It is here where the struggle for civil rights for every American has become contaminated by the power battles among elites. The VRA is a victim caught in this tug of war.
Tool of Change
There are two ways to use the VRA to force changes to legislative maps. One way is through Section 5 and the preclearance process. The other is a court action against a jurisdiction through Section 2.
With Section 5, certain states, and the jurisdictions within, are under federal supervision with their election system. The United States Department of Justice (DOJ) has to approve changes with elections in these “Section 5 covered” places. The idea behind this section of the Act is to stop discriminatory and racially retrogressive election laws before they are put in use, thus avoiding time consuming and expensive litigation. Without question, this efficiency has been an important protection to the benefit of the cause for civil rights. While this section of the VRA can cover many different types of changes to elections, this article will focus on redistricting.
In 2013, SCOTUS decided Shelby County v. Holder. The Court voided Section 4 of the Act, which provided the formula for jurisdictions to qualify for Section 5 preclearance. While Congress renewed the VRA in 2006, the old formula remained unchanged; it was based on whether these places had prerequisites to voting such as literacy tests and low voter registration or voter turnout statistics from the 1960s or 1970s. The Court left it to Congress to devise new/modern criteria for Section 4. However, our politically polarized Congress has yet to pass an updated law. Section 5, with its important efficiencies and protections, now hangs in limbo. Notwithstanding, the course of law reveals the pre-clearance process had offered no guarantee of balanced elections.
Georgia v. Ashcroft (2003) involves Section 5 and is an example of the conflict among power elites when drawing districts maps. After the 2000 census, majority Democrats in the Georgia legislature decided on a different approach to reapportionment. Instead of packing black voters in single Democratic districts, the plan was to spread these voters among more districts. Some districts would still contain a majority of black voters, while others could be an “influence district" . These new state legislative maps enjoyed almost unanimous support of black lawmakers. Regardless of this support, the DOJ challenged the plan under Section 5, alleging the influence districts were retrogressive for black voting power. Yet again, the wheels of the legal apparatus were put into gear. Ultimately, SCOTUS upheld the legislative maps on the grounds that the District Court that disqualified them did not look at the totality of circumstances. The black / Democratic power brokers in the Georgia legislature may have won the battle, but at what cost?
Before the ruling, retrogression was just that  — districts where the number of black voters was diminished were simply evidence of disenfranchisement. Now, with the totality of circumstances criterion, the lines are blurred. Issacharoff (2004) says about Ashcroft, “from a bright-line rule . . . to an assessment of the competing political considerations in securing effective black representation, the Court introduced for the first time to Section 5 the fine grained calculus of trade-offs of political influence versus descriptive representation.” The legal squabble effectively was over the dogma of racially based districting. The old way of thinking was, “for guarantees of minority electoral success, which in turn translated into the maintenance of packed minority districts” (Issacharoff, p. 1729). Packed districts usually result in an uncompetitive or uncontested election in a district with a large surplus of minority voters needed for the election of a single representative. The post Ashcroft ideal is for spreading enough minority voters across districts as a better way to increase their influence, as it allows the opportunity to create cross-cultural coalitions. In turn, prevailing coalitions could result with better responsiveness in government. Regardless of how you look at packing or influencing districts, the practice of engineering electoral districts to affect the results are at the heart of the matter.
Recent court rulings show how the “fine grained” strategy of districting is replacing the longstanding practice of packing districts with minorities. Alabama Democratic Conference, et al. v. Alabama, et al. (2015) regarding state legislative lines and Dawn Curry Page, et al., v. Virginia State Board of Elections, et al. (2014) regarding congressional boundaries, are two cases where the longstanding practice of district packing was rejected by the courts. In addition, the political insiders who drew the lines in Virginia, defended their work as preventing retrogression of minority voting power. Alabama map makers were basically recreating minority districts from the 2001 redistricting cycle. Excuses aside, it must be noted that both of these “packed” maps were pre-cleared under Section 5 by the DOJ.
The brief look at the circumstances above shows section 5 failing its mission of preventing redistricting litigation. Section 2 of the VRA also seems to offer lackluster results with districting remedies.
With section 2, a plaintiff must prove that an election system is fostering racial voter dilution. Jurisprudence has developed a three-pronged test to determine if any dilution is possible.
Washington State had its first federal action ever under the VRA in 2012. Considering the example of racially polarized voting above, it should be no surprise the City of Yakima was sued by plaintiffs under a section 2 challenge alleging the City’s winner-take-all, at-large election system was harming Latino voters. Federal judge Thomas O. Rice issued a summary ruling siding with the plaintiffs that racially polarized voting occurred under the city’s election arrangement. Yakima was ordered to submit an exclusive district plan, which included one, so-called, majority-minority district and another “influence district”.
Within the initial pleadings, Yakima pointed to a key weakness with exclusive single-member districts as a remedy to racial exclusion. They argued for Latinos who did not live in these two racially fashioned districts. Yakima claimed excluding voters replaced one alleged violation of Section 2 with another sure violation. Judge Rice, in the summary ruling responded, “[C]reating a minority district to remedy a §2 violation will always result in a dilution of minority voting strength in the remaining districts . . . The dilution of minority votes in other districts is an inevitable byproduct of the §2 remedy, and there is nothing improper about it” (Montes v. Yakima, 2014). In response to settle the section 2 issue, Yakima then offered a hybrid plan including a modified at-large component that clearly resolved the problem of Latino voters left out of exclusive districts. Nevertheless, the judge rejected the City’s settlement offer and, as a result, Yakima’s voters are now segregated into racially-fashioned districts. Latinos living outside of the majority-minority district are drawn into a political minority, abandoned as an “inevitable byproduct” of districts.
The City is appealing on equal protection grounds that the new districts are lopsided when considering eligible voters. For example, in the new majority-minority district, the citizen voting age population is 40 percent. In district seven, which contains mostly white voters, the citizen voting age population is 74 percent. In essence, it takes less than half as many voters to get elected in the majority-minority district than in the other. If the section 5 cases mentioned above involve “packing” districts with racial minority/opposition voters, this section 2 case is about “scattering” racial minority/supportive voters. Either way, it is about political elites using single-member districts to engineer elections.
The logic with section 5, (before Ashcroft) and section 2 in Yakima are examples of dogmatic thinking applied to the VRA. With the former, accusations of retrogression were applied to an apportionment plan conceived with progressive intentions for wider minority voter participation and representation. With the latter, racial constituencies outside of exclusive districts—that are supposed to be protected under the VRA—are shrugged off as an inevitable byproduct. The Court’s use of language is revealing — voters on the losing end of the districting battles among elites are basically collateral damage. Preordained winners and losers in specially-crafted boroughs are not the only limitation to the doctrine of the single-member district, policy suffers as well.
Distorted Districts, Distorted Outcomes
It is here that I present my primary research regarding the 2012 election and the subsequent 113th Congress. We must look at the results of this election to put the following research into perspective.
This election featured a presidential race at the top of the ballot, a factor that tends to increase voter turnout. Barack Obama was elected to a second term in an election that produced an estimated 57.5 percent total voter turnout. Democratic candidates for the United States House of Representatives (House) received 51 percent of total national vote. Republican candidates won 49 percent of the national House vote. However, because of the effects of reapportionment, minority vote getter Republicans won a 54 % majority of the seats in the House (HAAS 2013).
Latinos made up 10 percent of the electorate in the 2012 election. As mentioned above, a strong majority of Latino voters prefer Democratic candidates. In the 113th Congress there were 35 Latino representatives in the House. This was the largest class of Latinos ever. It is not easy to determine who is a member of an ethnic group. There are different metrics to ascertain this profile, however, I settled on the information provided by the House Press Gallery. Twenty-seven Latinos belong to the Democratic caucus, while 8 are Republicans.
I want to look at the efficacy of these Latino representatives regarding issues that are important to this community of voters. According to Latino Decisions, immigration is the top issue for Latino voters. A 2013 Latino Consortium/ Latino Decisions poll found that 70 percent of Latino voters wanted “a clear path to citizenship for undocumented immigrants, as long as they pass a background check, learn English, and pay a fine” (Latino Consortium 2013).
Methods and Results
I analyzed the record of the Clerk of the United States House of Representatives for bills submitted by Latinos regarding immigration. Their website is comprehensive and interactive. A researcher can keyword “immigration” into the search field under “113th Congress and all the bills with this term will result.
The record shows that Democratic Latinos introduced forty-two bills in the House, with none passing. Republican House Latinos introduced eight bills, with none passing also. In total, the House introduced 150 immigration bills. While not every immigration bill had to do with immigration from Central and South America, there was substantial legislation in this regard.
Democratic Representative Raul Griljava of Arizona’s 3rd Congressional District, introduced HR 3163 — the Comprehensive Immigration Reform for America's Security and Prosperity Act of 2013. This 645-page legislation is just as it title suggests — a wide-ranging proposal regarding immigration along the southern border. The bill deals with rules affecting legal immigrants including a program to assist permanent resident aliens to become citizens. The bill also considers illegal immigration, among other issues, and it is this facet of the proposal where I want to focus. Section 163 of the bill establishes apprehension procedures for families and parents of illegal aliens. Part 5 of this section wants to, “ensure that the best interests of children are considered in decisions and actions relating to the detention or release of any individual apprehended by the Department of Homeland Security, and that there be a preference for family unity whenever appropriate.” As the poll above states, this sensibility speaks to the needs and values of the Latino community.
Arizona’s 2011 congressional district map was precleared under Sec. 5 of the VRA. According to Rep. Grijalva, “The 3rd District includes the majority of Tucson’s Hispanic, African American and urban Native American residents”. Rep. Grijalva’s seems to be representing his constituents by introducing HR 3163. He was not alone in Congress, a similar bill, sponsored by New York Senator Charles Schumer also offered comprehensive immigration reform. The difference is that S. 744 passed the Democratically controlled Senate in the 113th Congress. House Republicans, by virtue of their artificial majority, not only failed to pass HR 3163, they had opposite intentions for the issue of immigration.
HR 5272 is a callous attempt at eliminating the Department of Homeland Security’s discretion involving children who entered the United States unauthorized. The Deferred Action for Childhood Arrivals program was created by an executive action. It allows unauthorized youth legal residency and even legal employment for a time period to individuals who qualify. HR 5272, which specifically seeks to repeal this program, was one of the six immigration issue bills to pass the House in the 113th Congress. If ever made into law, HR 5272 would result in the deportation of many thousands of Latinos currently in the United States.
This negative result is strong evidence of the lack of efficacy regarding Latino representation in the U.S. House.
There is no doubt that if the Democratic Party—who won the majority of national votes—controlled the House, with support from the Democratic Senate and President, comprehensive immigration reform would have been passed into law. The single-member district has not only failed Latinos; for the 113th Congress, the doctrine of single-member districts, by not reflecting the majority of Americans, hobbled the fundamental concept of the House of Representatives as a populist chamber.
Solutions / Discussion
Legislative reapportionment is very complicated. Districting criteria of competitiveness, compactness and keeping communities of interest together must be weighed with constitutional obligations. Mapmakers must also consider the obligations of the VRA into this situation. With fifty years of court rulings interpreting how to apply the law, the course from President Johnson’s desk in 1965 to today is not a straight line. One curve is how it is acceptable to create racially exclusive majority-minority districts, but extreme racial gerrymanders designed to benefit minorities are not permitted (Shaw v. Reno 1992). Another turn is how the protections of section 5 preclearance have not only failed to stop litigation, they can miss the finer points of reapportionment — such as how voters should be able to build coalitions instead of sitting packed in their own exclusive districts. Section 2 also falls short when applied in a way that abandons some minority voters as byproducts of single-member districts.
In the section 2 case with Yakima, the city proposed an alternative to exclusive districts. By offering a modified at-large voting system, many of the problems with districts are eliminated. The problems are eliminated because there are no districts with a modified at-large voting system . These alternatives to winner take all at-large voting are used in local elections in the United States. They are systems of proportional representation that include the methods of “Limited Voting”, “Cumulative Voting” and “Ranked Choice Voting”. Steven J. Mulroy says, “These three ‘alternative’ systems employ special voting rules designed to enhance the abilities of minority voting blocs to obtain representation . . . without carving the jurisdiction into sub-districts” (1998).
Voting rights expert Lani Guinier has been a longtime supporter of modified at-large systems and says the link between representation and voting is restored because legislators represent united, not divided, constituencies (Guinier 1994). She adds. “Gerrymandering becomes unnecessary and can no longer be used to enhance the disproportionate power of incumbents to ensure their own reelection or to exaggerate the political control of the party in power.” (p. 152).
The Supreme Court of the United States has mentioned modified at-large voting systems favorably. In a concurring opinion with Holder v. Hall (1994), Justice Clarence Thomas says that there is nothing in the VRA that prevents a modified at-large system as a remedy to a section 2 violation. Justice Thomas is keen on how majority-minority districts tend to racially segregate voters and he looks at many aspects of this in his opinion. The following quote from the 1994 opinion is prophetic regarding voting rights court decisions and the continuing litigation:
“Blacks are drawn into ‘black districts’ and given ‘black representatives’; Hispanics are drawn into Hispanic districts and given ‘Hispanic representatives’; and so on. Worse still, it is not only the courts that have taken up this project. In response to judicial decisions and the promptings of the Justice Department, the States themselves, in an attempt to avoid costly and disruptive Voting Rights Act litigation, have begun to gerrymander electoral districts according to race. That practice now promises to embroil the courts in a lengthy process of attempting to undo, or at least to minimize, the damage wrought by the system we created.” (p. 6)These leaders in the field of elections have been aware of the controversy and problems with redistricting and race for many years. My primary research shows one example of how the policy decision of single-member districts has real effects on citizen efficacy with government. In the end, it is the citizenry that must become aware of this matter.
Most citizens do not know or care about political institutions at all (Bowler, Donovan 2013). Districting is complicated and we should not expect voters to completely understand the process. In addition, its machinations are not visible to the average voter holding their ballot. This reality should not serve as a smoke screen to protect incumbent legislators and their political parties during political battles. The transparent way to hold elections is to take the ability to make single-member districts away from political elites by putting sophisticated voting methods in the hands of voters. This does not necessarily complicate matters. Just like voters do not know or care about institutional activities like redistricting; with modified at-large, voters need only to accomplish the task of voting easily and effectively (Amy 2002). If they do happen to care, all the information should there for them.
I mention voters are paramount as their will is the key to bring about this reform. If voters realize they have more power with comprehensive ballots, they could bring about this kind of fundamental voting change. This realization is the first step in slaying the notion of the Masters of the Political Universe.
A large body of scholarly work demonstrates that modified at-large voting systems offer greater voter turnout and efficacy (Bowler, Donovan p. 5). My article made points about problems with single-member districts. No election system is perfect, however, modified at-large voting takes the power of determining winners and losers away from elites and puts it where it truly belongs — with the voters.
Let us never forget the hard work the civil rights movement undertook in the 1950s and 60s to create the federal Voting Rights Act. We must also recognize the work of those who successfully took on racial barriers to voting by using the important tools written into the Act. As we near the VRA’s 50 Year celebrations, let us look forward in the spirit of inclusion and justice that the civil rights movement manifested into electoral opportunities for Americans to engage their government. It is in this essence that the perspectives offered above have been presented. My wish is for the reforms I offer to be considered within this same spirit.
1. While not a majority, racial minorities could inhabit a district in such numbers where they could influence who could get elected.
2. Beer v. United States, 425 U.S. 130 (1976)”[T]he ability of minority groups to participate in the political process and to elect their choices to office [should not] be augmented, diminished, or not be effected by the change affecting voting” (p. 425).
3. While not a majority, racial minorities could inhabit a district in such numbers where they could influence who could get elected.
4. Modified at-large voting can also use multi-member districts to achieve its goals.
5. Justice Thomas also wrote the majority opinion upholding Washington's and California's Top-Two election system.
Alabama Democratic Conference, et al. v. Alabama, et al. (2015) 989 F. Supp. 2d 1227
Amy, D. J. (2002). Real choices/new voices: How proportional representation elections could revitalize American democracy. Columbia University Press p. 189.
Barreto, M.A., Caldwell, C., Oskooii K.A.R., (2012) Dissecting Voting Patterns in the González-Danielson Supreme Court Contest in Washington State
Barreto, M.A. (2015) Missed Opportunities: Assessing Latino Turnout in 2014 Latino Decisions March, 31 http://www.latinodecisions.com/blog/2015/03/31/official-voter-turnout-data-for-latinos-in-2014/
Bi-Partisan Policy Center (2012) Election Turnout Dips Below 2008 and 2004 Levels: Number Of Eligible Voters Increases By Eight Million, Five Million Fewer Votes Cast
Bowler, S., Donovan, T. (2013). The limits of electoral reform. Oxford University Press. p. 5, 32
Dawn Curry Page, et al., v. Virginia State Board of Elections, et al. (2014) Virginia Eastern District Court, 3:2013cv00678
Engstrom, R.I., McDonald, M.D. (2003) The Effect of At-Large Versus District Elections on Racial Representation in U.S. Municipalities Electoral Laws And Their Political Consequences. Edited by Bernard Grofman and Arend Lijphart, Agathon Press, Inc. New York, 3rd Printing pp. 203-225
Grijalva, R. http://grijalva.house.gov/3rd-district/
Guinier, L. (1994) The Tyranny Of The Majority: Fundamental Fairness In Representative Democracy. Free Press, University of Michigan, 324 pages.
HAAS, K.L., Clerk of the United States House of Representatives, http://clerk.house.gov/
Issacharoff, S, (2004) Is Section 5 Of The Voting Rights Act A Victim Of Its Own Success? Columbia Law Review, Vol. 104, No. 6, Oct.
Issacharoff, S., Karlan, P. S., & Pildes, R. H. (2012). The law of democracy: legal structure of the political process. Foundation Press.
Joint Center for Political and Economic Studies (2015) 50 Years of the Voting Rights Act: The state of race in politics. http://jointcenter.org/content/50-years-voting-rights-act-state-race-politics
Latino Consortium/Latino Decisions CIR Poll Toplines March 18, 2013 http://www.latinodecisions.com/files/1913/6357/1744/Latino_Consortium_Toplines_-_March_18_Release.pdf
Montes, et al, v. City of Yakima, et al., (p. 30) Order on Cross-Motions for Summary Judgment, NO: 12-CV-3108-TOR
Mulroy, S. J. (1998). The Way Out: Toward a Legal Standard for Imposing Alternative Electoral Systems as Voting Rights Remedies. Harvard Civil Rights-Civil Liberties Law Review (CR-CL), 33(33) p. 339
Pew Research Center, April, 2015, “A Deep Dive Into Party Affiliation”. http://www.people-press.org/files/2015/04/4-7-2015-Party-ID-release.pdfShelby County Alabama v. Holder Attorney General, (2013) 679 F. 3d 848,
Wallace, S.J., (2014) Representing Latinos: Examining Descriptive and Substantive Representation in Congress, Political Research Quarterly Vol. 67(4) 917–929