Redistricting: Discussing the John R. Lewis Voting Rights Advancement Act

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

Evelyn Hildebrand:  Welcome to The Federalist Society's virtual event. This afternoon, October 1, we discuss Redistricting: The John R. Lewis Voting Rights Advancement Act. My name is Evelyn Hildebrand, and I'm an Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

      Today we are fortunate to have with us some very distinguished speakers. I'll introduce our moderator, Maya Noronha, who will then introduce our speakers. Maya is a Visiting Fellow at the Independent Women's Law Center and she's also a member of The Federalist Society's Free Speech and Election Law Practice Group. Maya was formerly the Acting Chief of Staff and Principal Advisor to the Commissioner for the Administration for Children and Families at HHS and Senior Advisor to the Director of the Office for Civil Rights within the Office of the Secretary. We're very pleased that she could join us to moderate this afternoon.

     

      After our speakers give their opening remarks, we will turn to audience questions, time permitting. If you have a question, please enter it in the Q&A feature at the bottom of your screen.

 

      With that, thank you for being with us today. Maya, the floor is yours.

 

Maya Noronha:  Thank you, Evelyn. And thank you to The Federalist Society for hosting this panel. I'm delighted to welcome these two amazing redistricting experts who have dealt with the issue for multiple cycles.

 

      So, we have, first, Professor Jeffrey Wice who is at the New York University Law School as an Adjunct -- New York Law School -- Adjunct Professor of Law and Senior Fellow and Director of their Census and Redistricting Institute. And second on the panel, we have Mark Braden who is Of Counsel at BakerHostetler.

 

      So, without further ado, Professor Wice.

 

Prof. Jeffrey Wice:  Well, thank you very much, Maya. It's a pleasure to share this program with Mark Braden, who is a longtime friend and associate of mine. We may come from different political or philosophical backgrounds, but for many years have been able to work together for the common interest of pursuing fair redistricting policies, maps across the country, and enforcing the Voting Rights Act, however you might look at it.

 

      What I'll to do start is to give a brief overview of H.R.4, the John R. Lewis Voting Rights Advancement Act, which passed the House of Representatives earlier this year and is now pending before the US. Senate, as is S. 1, a bill that does a lot more in terms of election reform. So, both bills are before the US. Senate where, given everything else from debt ceiling to the budget to infrastructure, it's had to say what will happen. But we can say that, this now being October 1, many states are in the throes of redistricting of their congressional and state legislative districts. In fact, Oregon and Maine have completed their processes, and I believe Nebraska is about complete things there, as well. Many other states will enact their own plans later this year, and some will enact plans as late as 2022. But the bottom line is that, at the state end, new congressional and state legislative lines needs to be in place before the 2022 elections given the Supreme Court's mandate under One-Person, One-Vote Population Equality that lines be redrawn once every ten years, generally after the federal decennial census, which was delayed due to the pandemic and getting the data to the states. But states are on track now, albeit being a bit late.

     

      The John R. Lewis Voting Rights Advancement Act would restore and strengthen the right to vote by making sure that any changes to voting rules that could discriminate against voters based on race or background are federally reviewed before they could be implemented by state and local governments. The bill would restore essential portions of the Voting Rights Act that block discriminatory voting practices before they go into effect, putting a transparent process in place for protecting everyone's right to vote.

 

      In 2013, the US Supreme Court vacated § 4 of the Voting Rights Act which served as the trigger for § 5 of the Voting Rights Act. Section 5 is still good law. That was enacted by Congress in 1965 and requires that, for a certain number of so-called coverage jurisdictions, states and localities with a history of racially discriminatory voting practices -- that any law, practice, or procedure needed to be precleared or preapproved by either the federal district court in Washington, DC—a special federal district court in Washington, DC made up of three judges—or by the US Justice Department. Section 5 was triggered by § 4 which included a formula, enacted in the 1960s and amended in the early 1970s, that based coverage on whether a state had discriminatory practices for language requirements or poll tax, also where you had less than half of the voters in a county or state voting in the 1964 presidential election. And in the case that was brought up to the Supreme Court, Shelby v. Holder, the Supreme Court held, in an opinion by Chief Justice Roberts, that you could not apply a 1960s formula using vote numbers from 50 years ago in the context of post-2010 reality. So, they vacated and set aside -- rejected the trigger formula in § 4. -- When you teach [Inaudible 00:06:57] all day yesterday; the voice hasn't quite come back.

 

      So, we don't have the trigger in place now for § 5, and the bill in Congress H.R.4 would, essentially, do that. And it’s trying to do that as this point in history where a number of states have enacted laws that are being seen as erecting barriers to the ballot box for millions of Americans. I think in this past year there have been over 400 pieces of legislation introduced and 30 laws enacted by states that would have needed, for the most part, to have been precleared by the Justice Department or a federal court before they could be implemented. Some states, in fact, enacted voter suppression laws right after the Shelby case came down. And now it's been seven years without § 5 enforcement.

     

      The Voting Rights Act has historically had a long record of bipartisan support. Every time the Voting Rights Act has been reauthorized, it's been signed into law by a Republican president after first being approved by President Lyndon Johnson during 1965 at the height of the civil rights movement. When the Voting Rights Act was last reauthorized in 2006, it passed the US Senate with the unanimous vote of 98 to nothing. And it’s my hope that in the US Senate, there will be bipartisan support for whatever kinds of bill they can pass. That's still something that's a work in progress.

 

      Section 5, up until 2013, had a specific formula that the Supreme Court rejected as I had mentioned. What H.R.4 does is rewrites the trigger formula, creating a new structure. And in a nutshell, what H.R.4 would do would be to give the attorney general of the United States the authority to request federal election observers if there is serious threats of discrimination. The bill also adds new triggers for violations of the Voting Rights Act, including a new formula that would address current discrimination tactics when evaluating a state or locality's history of voter discrimination. In particular, these voting rights violations that would require a federal court or the Justice Department to review a new law would include jurisdictions or states that have 15 or more voting rights violations in the last 25 years or any state with ten or more Voting Rights Act violations and at least one state-committed voting rights violation within the past 25 years, as well as impact any subdivision of state -- local government with three or more Voting Right Act violations in the last 25 years.

 

      The bill also would require states and localities to be more transparent by requiring that more public notice be provided when changes are being proposed for voting policies or laws and require that all voting changes be announced at least 180 days prior to an election. The bill would also require federal approval for policies that impact the ability to register to vote or to cast a ballot and also provides for new language that allows for administrative bail out from coverage from § 5 of the Voting Rights Act where the attorney general would be asked to determine if any political subdivision of the state would be eligible for exemption from preclearance requirements.

 

      After the Voting Rights Act was first enacted in 1965, it was challenged. Specifically, South Carolina, in a case of South Carolina v. Katzenbach, challenged the ability of the federal government to enact the Voting Rights Act. The Supreme Court held in that case that the Constitution permitted the Congress to enact laws that would send federal examiners to oversee voter registration, as well as to provide for advanced federal approval of proposed changes to voting regulations—laws—which of course includes redistricting plans. The Court held that the Voting Rights Act was permitted under the scope of power given to the Congress by the Fifteenth Amendment, which was enacted in 1870 after the Civil War, that allowed Congress to employ any rational means to abolish state laws that promote racial discrimination in election procedures.

 

      The § 5 effort was used for redistricting review from the '60s all the way through the 2010 redistricting cycles. And now that we're underway now, there is no preclearance policy. As I mentioned at the beginning of my talk, states are already underway. Although Maine and Oregon were not states that go under preclearance in the past, both governors in those states have already approved their plans. Had those states been under preclearance before, they would then have 60 days to obtain -- well, once they submit the plan to the Justice Department, the Justice Department would have had 60 days in which to approve or reject the plan. But until that approval had been granted, the plans could not go into effect.

 

      And that provided for a valuable tool for those who objected to plans because you couldn't use the plans, unlike now. If you're challenging a racially discriminatory redistricting plan under either § 2 of the Voting Rights Act, which prohibits minority vote dilution, or under the Fourteenth Amendment, which bans racial gerrymandering or the packing of too many minority voters into a district, federal litigation can take at least two years. And during that time, the plan that is being challenged would be used in the next election for the most part. Stays could be issued against them, but generally, those plans can be used on an interim basis. It always depends on the timeline, the facts of the situation, and when the next election is occurring.

 

      So I hope that provides just an overview of H.R.4, what it seeks to do, what it does, where things have been, and now that we're in October, where things might be going. So thank you.

 

Maya Noronha:  Thank you, Professor Wice. Mr. Braden.

 

Mark Braden:  Hi. It's a pleasure to be with Jeff. We've known each other and have been involved in redistricting voting issue for a long time. I had different color hair. I think Jeff had more hair, as I remember. But leaving aside that, H.R.4 and H.1—H.R.4 being the Voting Rights Bill and H. R. 1 being the General Election Bill—are in response to what is alleged to be an election crisis that we're in. And I would suggest to you that, in fact, we don't have an election administration crisis. We might have a crisis of confidence in our system, but we don't have an election administration crisis. Our elections are generally well run in this country. The winners almost always are certified the winners of the election. There's no real indication of massive fraud. There's no real indication of suppression of minorities to any reasonable degree across the country.

 

      Sure, there's mis- and maladministration of elections on occasion, and fraud does occasionally happen, but these are all incidental issues. They are not major issues. So the last election should not have triggered anything resembling an election crisis, which of course is totally different than in 2000. In 2000, the Bush v. Gore race was genuinely in doubt following the election. And there are two states in which you really, frankly, had to do a recount to have any reason to believe that the election night’s numbers and the certifications that would be coming from those election night numbers and the more formal canvas process were, in fact, accurate.

 

      And so that was a genuine crisis, And in response to that genuine crisis, we have the Help America Vote Bill pass by overwhelming bipartisan support, virtually unanimous in both parties, dealing with real issues identified in the Bush v. Gore recount. There were real problems with election administration, real problems with old, antiquated election counting/casting systems that simply didn't work well enough for the 21st century. So, those were real crises.

 

      We can and should point out -- I will point out that we now have a crisis of confidence in the system. Whether that's fair or not -- I doubt that it's fair. I think it's fair, though, to point to the former president as being the person who's the arsonist who started the fire -- a lack of confidence in our system. But unfortunately, the proposals in Congress right now from the Democratic leadership—the firemen dealing with that crisis—neither of these bills has any type of genuine effort to have bipartisan support for the changes, and they simply are firemen showing up at the fire of confidence with gasoline rather than water.

 

      When the Voting Rights Act was passed in 1965, it arguably was one of the single most important pieces of legislation in the 20th century. It fundamentally changed, in combination with the One-Person, One-Vote revolution in the Supreme Court in the mid-'60s, too -- fundamentally changed American politics. It fundamentally changed the whole concept of American politics. American politics prior to that was a one-party, one-race in the significant portion of our country. The Voting Rights Act blew that up. The Voting Rights Act, like the Help America Vote Act, was a bipartisan enactment. Lyndon Johnson deserves tremendous credit for his legislative achievement, but of course that is a broader group of folks involved. You had Martin Luther King, TVs, the Selma heroes marching for registration are all important.

 

      But in the actual chamber itself, it's important to point out Lyndon Johnson was very clear, and expressed it to any number of people, that the bill had to be bipartisan and Everett Dirksen had to agree to the bill and had to bring along a majority of the Republican members in the Senate. It was a bipartisan bill with Dirksen directly involved. The renewals of the bill -- in '82, Dole was one of the clear players in enacting the renewal. Bush signed the renewal. The Republican leadership in the House and Senate were in favor of it. They were bipartisan efforts. Bipartisan is, in fact, the only approach that you can deal with election law changes where you can help bank the fire—our present lack of confidence in some areas on the process.

 

      But that's not what we're looking at here. We're looking at a process that would fundamentally move most of election administration, which is principally at state and local levels, into a much more regulated federal process. And that is, in my opinion, fundamentally a mistake. Our process works pretty well—not perfect. We have a system that was not designed by God nor administered by angels, but on the whole, it actually works pretty well. I have no reason to believe the approaches we're talking about here would, in fact, instill more confidence or make for a better system. This system works pretty well, and we're looking at changes that are not being adopted in a serious bipartisan effort.

 

      Describing the changes in the law in the last year at the local level as a return to Jim Crow is ridiculous, as I think any fair-minded person really looking at what Jim Crow was like and the process then would recognize. Now, reasonable minds can disagree on any of these changes. You can argue whether or not voter ID is good or bad, and there are points to be made on both sides, but the reality is a huge percentage of the electorate, Democrat, Republican, white, and black, view voter ID laws as being reasonable—a reasonable effort at protecting the system. Again, this process we're looking at in both the House Bill, Election Law Bill, and the Voting Rights Bill is not a genuine effort, in my opinion, to improve the system but is an effort that would result in a lack of confident in a system that's already shaken.

 

      Now, the process of shaking the confidence of people in the system, may have been unfair, but we are where we are. And so what Congress should be doing and should be looking for is if we need to make changes, it needs to be something coming from both parties. We need to recognize that there are a lack of confidence in a significant portion of the electorate out there, and we need to do confidence.

 

      What's important in elections—of vital importance in elections—more important than anything else, is that the winners win and, equally important, that the rational supporters of the losers believe they lost. Everything else is secondary to those two points. And I do not see, in any of these changes, efforts to address those concerns but efforts that, in many ways, look like trying to garner political advantage through legislative process and/or the litigation process. I hate to be so contrarian, but this just simply is incredibly mishandled. If there's a genuine effort to deal with genuine issues, I'm wildly in favor of that, but this effort to nationalize the system through simply, “We're in power now and we can do it,” is simply a mistake.

 

Maya Noronha:  Thank you, Mr. Braden. You both have raised a lot of legal issues that are relevant for this cycle. So, I want to ask, what is different about this cycle versus prior cycles in terms of advising states drawing maps right now, complying with the law when litigation is anticipated and potentially new legislation being passed?

 

Mark Braden:  Well, I think –

 

Maya Noronha:  Let's start with that.

 

Mark Braden:  -- we definitely can agree on the notion that the general voting rights racial jurisprudence had become significantly less clear. There is a good deal of tension between the creation of majority/minority districts pursuant to the Gingles case and § 2 of the Voting Rights and how you identify racial gerrymanders which violate the Fourteenth Amendment. You've got competing notions at to how you should draw lines. We have some states now who are drawing the lines without using racial data because they're afraid of racial gerrymandering claims. And they feel the best way to avoid those is by not using racial data whatsoever. That, of course, does raise the question of how do you show that you complied with § 2 of the Voting Rights Act as outlined in Thornburg v. Gingles without looking at racial data. And that's an interesting question. I'm not sure I have an answer for it.

 

Maya Noronha:  Professor Wice.

 

 

Prof. Jeffrey Wice:  Well, my basic advice to legislators of both parties is that the redistricting process needs to be fairer, more transparent, and more participatory to allow the public to weigh in to a greater extent than it has in the past. This used to be a totally backroom process in the proverbial smoke-filled room that no one really understood. In fact, people look at the word redistricting with negative connotations that “re” must mean something we don't want to know about. They don't really understand the process.

 

      But when we explain that redistricting gets down to who represents you in Washington, the state capitol, and local governments, who enacts the laws that impact your hospitals, your schools, your streets -- you look outside the window, everything you see that's funded by government is driven by who represents you and the quality of services that they deliver. That's why redistricting is so important. If you can begin engaging the public, and if the legislators also have a more transparent public process, everybody benefits.

 

      What I don't want to see are redistricting plans announced overnight with no public input, passed without much debate the next day, and signed into law. We've seen that happen in a number of states, especially after 2010, and that led to a public outcry against letting politicians pick their voters, instead let the voters pick their politicians. And we've seen in Utah, Colorado, Michigan, Virginia, New York, California, Arizona, new commissions created that ostensibly take away the power from the elected officials to draw the districts and try to have the plans developed by bipartisan or nonpartisan groups. Now, those commission efforts, to some degree, have been successful and some not successful. The jury is still out on that.

 

      But when it comes to the specific advice on the Voting Rights Act and on districting in minority communities, Mark is correct. I agree that there's still debate. It's unsettled. My advice, generally, is that you should use racial data if you use it the right way. You need to be mindful not to dilute minority voting strains. That's where § 2 of the Voting Rights Act comes in that you don't want to crack the minority community into fewer districts where they cannot elect their preferred candidate of choice, where you have significantly high levels of racially polarized voting. On the other hand, you also want to avoid Fourteenth Amendment racial gerrymandering packing problems where you unnecessarily put too many minority residents into a district that wastes their ability or denies them the chance to impact elections in neighboring districts.

 

      I think there is a difference that can be understood. A key thing, though, is that redistricting authorities need to employ something called racial block voting analysis before they enact a plan. That involves using a political scientist's skills to run various kinds of numbers from the last ten years of primaries and election results to see how the white voters and the Asian or black or Hispanic voters vote, and whether the white majority denies the minority the ability to elect a candidate at certain specific levels. There's no one-size-fits-all. But you need to employ that kind of methodology so you know—you're informed—on what to do or not to do.

 

      Since 2000, the Supreme Court has looked at districts being created, not for racial purposes, but for partisan purposes. And North Carolina was in court from 1990 until 2001 over its 1990 plan litigated after the next census was taken. But the Supreme Court finally said, in a challenge to an infamous interstate highway-shaped district, that race wasn't involved, politics was, and that's okay -- essentially passing the buck on it. But the bottom line still is that race does matter. You can't go overboard, but you also have to be mindful of not diluting racial voting strength either where you have high levels of polarization. That's an important point to make, that you have to have these kinds of tests done so you know what you're doing. Many states have not done this prior to enacting their plans in recent years. I think they will now.

 

Maya Noronha:  So, the Federalist Society wants to open this up to Q&A. So, as the individuals on the webinar start submitting questions, let's continue the discussion. So the John R. Lewis Voting Rights Advancement Act, it differs from the existing Voting Rights Act because it doesn't have retrogression comparing it to the elements of discrimination earlier from the time. And that was what the Supreme Court found problematic with the preclearance formula. So what are the positive or negative aspects of changing preclearance to relate to decisions or litigation or the attorney general in developing a formula?

 

Prof. Jeffrey Wice:  The language of the bill includes several kinds of violations, whether it's a § 2 Voting Rights Act violation, whether it’s a language minority – I think it’s § 203 of the Voting Rights Act. If a jurisdiction exhibits a number of so-called Voting Rights violations that there have been, basically, bad actors vis-à-vis a determination of a state or federal court or the Justice Department and you tally those up -- that if a state demonstrates a bad record with minority voters, then it would be covered under the new § 5 trigger that H.R.4 creates.

 

Maya Noronha:  Mr. Braden, what would be a bipartisan new formula if you said that there aren't bipartisan measures in H.R.4 and in the House side the votes were on party lines?

 

Mark Braden:  Yeah. Sure. You could certainly make changes in the Voting Rights Act that would garner bipartisan support. Any type of preclearance provision, except in very, very narrow circumstances, strikes me as unlikely to generate bipartisan support because it's really -- this is a good observation with The Federalist Society -- it sounds like it's a federalist issue, the notion of where the locus of most election control should be, whether at the local level or at the national level. At the national level, in a crisis situation which we had in 1965 -- we had a crisis situation. That was a long-term crisis. It was a crisis of denying African Americans the right to vote from the end of reconstruction, to a large degree, up until the passage of the '65.

 

      But we don't have that crisis situation right now. And the notion that the local jurisdictions are not the best decision makers on this, and that somehow there's better location in the District of Columbia for this decision making, strikes me as unwise. And this is not just decision making on election administration. This is also decision making on drawing legislative plans. Jeff and I share the view that we ought to have fair plans, but like beauty, one's definition of fairness is often dependent upon one's point of view—which way your feet are pointing. So fairness concepts are tricky to deal with.

 

      And we start out with a system that's a geographically-based system rather than a list system. If your definition of fairness is some type of proportionality, then we would need a list system like Italy or France or some component of a list system where we could come up with something resembling more closely proportional representation.

 

      We have a geographically-based system, which by its very nature, are going to come up with plans and results which do not reflect proportionality, either partisan or racially-based, because of different residential patterns. So we have decided on that system. There are thousands of pages from hundreds of different political scientists arguing the different points of view. But we have a long-term commitment in this country to geographically-based systems. And to some degree, if you're going to define fairness simply as proportionality, that's going to present problems because our system won't end up there no matter who's controlling it.

 

Prof. Jeffrey Wice:  If I could just add, what we don't want to see is a return to the situation we had up until 1965. One of the tenants of § 5 preclearance was the rule against retrogression— that you had to maintain, for redistricting purposes, the same number of districts in your new plan that you had in the old plan—that you not retrogress. So I know that in Texas, draft plans are now circulating where allegedly minority districts might be eliminated or weakened. And if that's the case, had § 5 been in effect, those plans could not have been used. It was a very basic rule of thumb that you had to have, simply, the same number of districts in your new plan as the old plan. So, we wouldn't want to see a situation in Texas, let's say, where minority districts, if they're still effectively electing the preferred candidate of choice for the minority community, is eliminated. So we need to be careful there.

 

      We don't want to see laws -- again, I'll mention Texas -- where Harris County, with a predominate minority voting bloc, is denied the right to vote certain hours on a Sunday or to cut back on the number of drop-off boxes where people can cast their ballots—all the kinds of topics that come up in the bills before states today.

 

Maya Noronha:  We have a question. There are a lot of statistical analyses on using the census, having computers to computerize it, to develop an algorithm for compactness and communities, to take out the human element. Would that be an effective way to draw districts and not have consideration of race or comply with the law?

 

Mark Braden:  No, in my opinion. I've not seen anything that would make sense. Certainly, computer analysis statistics are appropriate to help you analyze plans. Although, I'm a firm believer in the cliché that there are lies, damn lies, and then there's statistics. A great deal of this litigation involves statistics which are often misleading, and anyone involved in it realizes the limitations of some of our statistical analysis. And frankly, it's becoming clearer to some of the political scientists that some of our traditional methods we've used, trying to identify polarized voting, are subject to some doubts. So, these are useful tools, but you want judgment. You want judgment.

 

      I'll use Virginia, where the congressional plan was declared a racial gerrymander. And Bernie Grofman, probably one of the best-known consultants and experts in this area, was hired to be the master to redraw the plan. And he redrew the plan, which was the intention of the litigation to be candid. It changed the make-up and created another seat for the Democrats in Virginia. It had the effect, though, of removing a Republican member who would have, in the next Congress -- likely have been the chairman of the Armed Services Committee, and that Republican member represented Norfolk. I would suggest to you a plan drawn by any Virginia politician might have -- if it had been a Democratic politician -- might have changed the delegation that came out -- the way the litigation came out with an additional Democratic seat. But they would not have thought it was a good idea to get rid of the person who was going to be either the ranking member or chairman of the Armed Services Committee who was representing Norfolk. In case there's anybody here who doesn't know what Norfolk is, it's the location of the largest military installation in the United States. That's the lifeblood of the Norfolk economy. It was brain dead, politically. Bernie was exactly right. If you look at the statistics and you say – and that made sense to a political scientist from California, and the numbers all work. It just was, politically, a huge mistake.

 

      And so you want politicians involved. You don't want this to be done by a computer. The notion -- I've heard this repeat and repeat of -- we don't want the politicians choosing their voters. I totally agree with that in a sense, but we also don’t want the computers to decide who has the seats. Paying some deference to incumbent members makes sense. Let them be voted out of office. Don't draw them out of office. But if you're going to use a computer to do this and you're not taking incumbency into consideration in preserving core subdivisions, you're going to be removing, by the line-drawing process, people from Congress who were elected to Congress. I'm not sure that's the process we want.

 

Prof. Jeffrey Wice:  Yeah. I'm also a firm believer that there is a human -- there needs to be the human element to redistricting—that people aren't trees, as Chief Justice Earl Warren once wrote in a major redistricting opinion—that redistricting plans need to reflect where people live, how they live, what they do, that there's a big mosaic to this process. The problem develops, however, when partisan gerrymandering goes too far. Algorithms, mathematicians have become more involved recently in a way that when a court is presented with a challenge -- and judges don't like to get involved in redistricting, but they have to. But to make it easier for them, political scientists, and more recently mathematicians, have developed theories that they run, I'm told, thousands of iterations of a state, house, or congressional plan. You don't really need to do that if you draw the human part of it first the right way.

 

      And what judges end up doing is having to look at third-party analyses done by computers to, then, score plans. Which is the most compact? Which is the least contiguous? Which is the most competitive district? And there are scores and scores of ways to do this, but you still need to have the human element.

 

      A note on incumbency because this has become a buzzword now that you don't want to consider incumbency anywhere in the redistricting process. In fact, the Virginia commission that's now drawing state legislative and congressional lines—it's a bipartisan commission of eight Republicans, eight Democrats—agreed not to factor in incumbency or the home addresses of the current legislators in their line drawing. And they’ve hired two sets of line drawers, one Democratic, one Republican, and the plans come back to the commission, and lo and behold, all these incumbents are being pared. Well, then when they realize this, public comment comes in, "No, you can't do this. You can't do that." And in Northern Virginia a few days ago, one district comes back. It was rather compact, rather like a -- shaped like a fist, but there was a little appendage sticking out. That's because they put the precinct of where the incumbent who represented most of that district lived back into the district.

 

      But there's something to be said for incumbency, as Mark mentioned, that whether you like it or not, the Congress and most state legislatures follow the seniority system where, having been there longer periods of time, you build up seniority. You get committee chairmanships/chairpersonships. You move up the ladder and deliver funding and programs for your districts. Without that—without those kinds of people remaining in office—you might get what you want, but not get what you need.

 

Mark Braden:  I always use the example of Ohio. I was involved in some litigation the last cycle in Ohio. And some of the proposed remedial plans would likely have removed John Boehner—at that time, the Speaker of the House—from the House of Representatives. No one in Ohio who was actually involved in the political process, involved in running anything, involved in getting money from the federal government, would think that was good for the citizens of the State of Ohio. It doesn't matter how you feel partisanly or what you thought about John Boehner. Having the member, the Speaker of the House, being from your state is incredibly advantageous to the state. So the notion that you wouldn't consider that in the process but use some type of computer that would ignore that, strikes me as brain dead.

 

Maya Noronha:  So, Professor Wice, we have a question about your comment about racial majorities and minorities. This person says that census projections show that the white population will become less than 50 percent of the population in the next one to two decades. So if the majority is the minority and the minority and the majority, how do you draw districts and deal with population changes?

 

Prof. Jeffrey Wice:  I think there we're looking at macro numbers that the white population is shrinking large nationally or in states, but districting is done on a local, specific basis. So you have to look at the numbers on the ground where you are. You can also have situations where – and this is something I've seen in New York City years back -- that you might have a minority white population in an area, majority black or Hispanic population, but the white voters might be older, turn out in numbers a lot greater than the minority voters do, and that could result in a minority vote dilution situation if the white vote is stronger and the minority vote is weaker. That's just one example. But outside of that, looking at the 2020 census numbers, generally, you have to look at the numbers on a district-by-district basis.

 

Mark Braden:  These issues are always very local. Although the black community in most areas of the country is fairly monolithic Democratic, the Hispanic community and Asian communities -- those should both be plural -- is not. There are significant differences between Latinos who have a background of coming from Mexico than those coming from Cuba than those coming from Central America. And they tend not necessarily to be aligned politically. In Asians -- certainly, there are Asian groups that are very Democratic, but there are Asian groups—as an example, Filipinos—who are not. So these are complicated questions, and Jeff's exactly right. These are driven by very localized issues.

 

      The Hispanic communities in New Mexico are different whether you're in southern Mexico or whether you're in Santa Fe. In Santa Fe, a lot of the people who would be classified as Hispanics don't really consider themselves Hispanic. They consider themselves Spanish. Their family came over in 1564 or whatever to Santa Fe, and they don't believe and they often are not politically aligned with more recent arrivals in Las Cruces, who are closer to Mexico culturally than they are. So it's a complicated issue that one size does not fit all.

 

Prof. Jeffrey Wice:  Yeah. And one other issue that the Supreme Court may eventually hear in the next few years is whether the Voting Rights Act requires coalition districts. Right now, if you have a Voting Rights Act violation situation, you have to show—you have to demonstrate—that a single minority group, whether it's black or Hispanic or Asian, would constitute 50 percent—that's 50 percent, period, not 49 percent—of a minority district. And if you can't reach that single-race 50 percent threshold, then you are not required to create a new minority district. But the test will come this decade whether you are required to combine—or you could combine—let's say, black and Hispanic voters into one district.

 

      The Supreme Court has not ruled on that point. It has ruled in a case called Bartlett v. Strickland that 50 percent of one race is required. Whether 50 percent of multi races are required is something I think the Court will visit sometime in the next few years.

 

Mark Braden:  I think Jeff's exactly right. There is something of a circuit split on this issue, but I certainly hope and expect -- maybe more hope than expect -- I never know. Me predicting what the Supreme Court will do has not necessarily been something I would have won a lot of money on at the MGM. But I think, given the circuit split, this is an issue that we hope the Supreme Court will address sooner rather than later for all of us who are advising line drawers.

 

Prof. Jeffrey Wice:  Yeah. And this is an issue that -- Virginia, as an example, is debating, whether coalition districts are required. The Democrats seem to favor that, whereas the Republicans are against that. Not that they’re against it in principle. It's simply you could create those districts, but you're not required to create those districts.

 

Maya Noronha:  So we have a question. How would you prove that different minority groups in a coalition district are cohesive? Do you rely on primary election results or general election results?

 

Mark Braden:  Yes.

 

Prof. Jeffrey Wice:  You have to work at it.  Yes.

 

Maya Noronha:  Okay. Both of you say, both. Okay.

 

Mark Braden:  Yeah. You have to use both to get there. It's hard to identify the candidate of choice as -- it's hard to identify the candidate of choice of the black community simply looking at general election data because I can tell you, 99 percent of the time in the general election, it's simply going to be the Democratic nominee. That doesn’t tell you whether or not the Democratic nominee is necessarily really the candidate of choice of the minority community. You might have to look at the primary to determine that.

 

Prof. Jeffrey Wice:  Yeah.

 

Mark Braden:  And that goes -- trying to identify which groups coalesce with other ones involved is a variety of different statistical techniques, retrogression analysis, ecological inferences, and things like that, which are interesting. Sometimes I understand how they're done. Sometimes I don't seem to understand how they're done. So there are a lot of ways, statistically, to look at it, but even with sophisticated statistics, it can be difficult sometimes to make that determination.

 

Prof. Jeffrey Wice:  Yeah. Yeah. Mark is right. And what you have to do -- this is one of the hardest selling points I've had to make -- although more jurisdictions I'm working with are coming around this decade -- is that you have to undertake classic, racially-polarized voting analysis, which means you've got to build a database of election results looking at every primary, the general election, for, generally, a ten year period, and then bring in a qualified, court-tested political scientist -- Bernie Grofman is probably the leading one in the country -- to analyze the data. And that data is going to tell you whether Smithtown or Jonesville has racially polarized voting and whether 48 percent or 55 percent minority voting age population is needed to elect the minority community's preferred candidate—not necessarily a minority candidate her or himself, but the preferred candidate. And that’s done by looking at these primaries and general elections where a white candidate ran against a black, Hispanic, Asian American candidate. Without that kind of analysis, it's a guessing game.

 

      And too many jurisdictions in the last ten years lost their court challenges because they didn't do that kind of homework. You can look at North Carolina, Virginia, Alabama as examples in the recent few years. It just takes a few thousand dollars or more, about a month's worth of time, but you have to get that basic homework done. Otherwise, it's a partisan -- don’t bring a knife to a gunfight. You have to have the right tools and homework done.

 

Maya Noronha:  So, Congress is also considering other legislation on the Voting Rights Act. The senate has a Freedom to Vote Act which has differences from the John R. Lewis Act and some elements of the For The People Act. So how would that impact redistricting if that were to move in the Congress?

 

Prof. Jeffrey Wice:  How things might impact redistricting, at this point, depends on if these bills, any bills, get through the Congress. The S.1 Bill, they couldn't get the votes to bring it up in the Senate. Senator Manchin was first opposed. Now Senator Manchin from West Virginia has come back with a compromise that would, essentially, set new standards against partisan gerrymandering. So that bill -- the intent is that regardless of when Congress passes it, any redistricting plan can be challenged in court even after they're enacted for a period of years looking backwards.

 

      But there's no federal law, at this point, outside of the Voting Rights Act, the Fourteenth Amendment, and the equal population requirement that federal law has jurisdiction over. It's really left to state and local laws. The current Bill S.1 or its current iteration in the Senate would create a wholly new standard for giving courts more power to reject redistricting plans based on partisan grounds. That bill has not gained traction yet.

 

Mark Braden:  There's still -- partisan gerrymandering as a cause of action, as we speak right now, in federal court is pretty much dead. I guess you can dream up some way that it would be alive in some context, but not much in federal court. That does not, though, mean that it's dead in state courts. Pennsylvania, as the perfect example, has decided that their state constitution, in what is basically a 180-degree change over the past jurisprudence, has a provision that would support a claim under partisan concepts of gerrymandering. To some degree, you see the same thing in North Carolina. My guess is that there may be other states where, in the state court system, you'll see those claims. In fact, you almost certainly will see those claims. The more difficult question is whether they'll be successful or not. I think if you have a conservative court in your state, it's unlikely. Frankly, it doesn't matter who drew the plan, whether Rs or Ds—a conservative court is unlikely to entertain partisan gerrymandering litigation in most states. So, --

 

Prof. Jeffrey Wice:  If I could --

 

Mark Braden:  -- a more liberal court? Maybe.

 

Prof. Jeffrey Wice:  -- if I could just close. In 1946, the US Supreme Court in Colegrove v. Green said, Justice Frankfurter's words, "Stay out of the political thicket of redistricting." In 1961 -- '62, rather -- Justice Brennan comes back and tell us, Baker v. Carr, "This is all justiciable." Come 2019, Chief Justice Roberts tells us, "No partisan gerrymandering cases in this building." Come back in 20 to 40 years and see what happens.

 

Maya Noronha:  Any last words? Equal time, Mr. Braden.  No?

 

Mark Braden:  Well, I can tell you one thing for sure, there are a lot of thorns in the political thicket which might not be good for the country, but are really good for the lawyers. So we are very, very busy, Jeff and myself and our comrades here, because the law remains, even after years, quite murky.

 

Prof. Jeffrey Wice:  Yeah.

 

Maya Noronha:  Well, on behalf of the Federalist Society, Free Speech and Election Law Executive Committee, thank you both so much for joining us. I'm sure you guys could chat with us for much longer. And so, thank you so much for your time.

 

Mark Braden:  Well, thank you.

 

Prof. Jeffrey Wice:  Thank you.

 

Evelyn Hildebrand:  Great. Thank you very much. I'll just add my thanks and the thanks of The Federalist Society to our panelists, to our moderator, and to our audience for participating and sending in your questions. We welcome listener feedback by email at [email protected], so if you have comments or any other comments, please send them there. In the meantime, thanks very much. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.