Voting Rights Act: A bad decision with positive consequences for Arizona

Starting with a particular number of majority-minority districts makes it tough to create competitive districts in the balance of the state.

For decades, the U.S. Supreme Court’s jurisprudence on redistricting has been a muddle.

According to the court during this stretch, if a state didn’t consider race enough, that violated the Voting Rights Act. If a state considered race too much, that violated the 14th Amendment.

The court never established coherent rules for the Goldilocks consideration of race, neither too little nor too much. It propounded a multipronged set of ambiguous considerations and applied them inconsistently.

Then again, the section of the Voting Rights Act the court was interpreting and applying was hardly a model of clarity itself. A violation occurs if members of a protected class “have less opportunity than other members of the electorate …to elect representatives of their choice”. However, the statute goes on to say “that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population”.

Now there are several problems with this formulation based upon democratic principles. The right to vote is an individual one; not a collective grant of political power. And in a democracy, no one, or no group, is guaranteed to be on the winning side, or “to elect representatives of their choice”. That’s why they count the votes. And everyone is at risk of being on the losing side.

There is nothing in the Voting Rights Act that requires the establishment of majority-minority districts, or districts in which, as a practical matter in American politics, either blacks or Latinos constitute the majority. However, as a matter of administrative law and practice, that became the way in which states attempted to comply with the VRA injunction that members of a protected class have the ability to elect representatives of their choice. And even though the VRA specifically eschews proportionality, that became the de facto test of whether a sufficient number of majority-minority districts had been created.

In the recent Louisiana v. Callais case, the court’s majority effectively put an end to the need for states to create majority-minority districts under the VRA. As a policy matter, I think that should happen. But the dissent by Justice Elena Kagan is correct in criticizing the disingenuous way in which the court’s majority reaches that outcome.

Rather than straightforwardly finding that the race consciousness and disparate treatment required to create majority-minority districts violates the 14th Amendment, the majority opinion, written by Justice Samuel Alito, leaves the multipronged set of ambiguous considerations in place but make them virtually impossible to satisfy. To satisfy the multipronged considerations, a plaintiff will now have to present an alternative map that includes all the redistricting objectives of the state’s map. And prove that the state’s map wasn’t created to achieve those objectives, including partisan advantage, but instead establish that there was “a strong inference” of racial bias that motivated its creation. Any patina of other redistricting objectives will defeat a challenge.

The elimination of the need to create majority-minority districts will have profound ramifications for redistricting in Arizona, but the state’s Republicans appear oblivious about what those ramifications are likely to be. State Senate President Warren Petersen has threatened to sue to require the state’s redistricting commission to reconvene and adopt new maps as a result of the Louisiana decision. In reality, Petersen may be Senate president rather than minority leader because of the majority-minority districts the commission felt compelled to create.

Under an initiative that established the commission, Arizona’s redistricting is supposed to start with a grid map based strictly on equal population. In reality, redistricting has begun with establishing what was regarded as the requisite number of majority-minority districts.

This requires sweeping a large percentage of registered Democrats into the majority-minority districts, leaving Republicans with a lopsided advantage in the balance of the state. One of the arguments in favor of establishing a redistricting commission, rather than continue to have the Legislature draw the lines, was to get a larger number of competitive districts in which both major parties had a reasonable chance of prevailing. The reform has been largely disappointing in that regard. However, the felt need to start with majority-minority districts has been a major reason.

For Congress, Arizona has two majority-minority districts, CDs 3 and 7. Over a quarter of the state’s registered Democrats are in those two districts. Less than 10% of the state’s registered Republicans are within their boundaries.

Statewide, Republicans have a registration advantage over Democrats of 7 percentage points. After the creation of the two majority-minority districts, that advantage grows to 14 percentage points in the balance of the state.

The effect is even larger for the Legislature. There are eight majority-minority legislative districts out of 30 total, seven with a Latino majority and one with a Native American one. Nearly a third of Democratic registrants are in these districts. The GOP advantage in the balance of the state is 15 percentage points.

After the establishment of majority-minority districts, Republicans are 40% of the voters left over for the balance of the state, while Democrats are just around 25%. Hard to create competitive districts from that residual.

Before Petersen sues, he might want to inquire as to why the existing maps were approved by the two Republican commissioners and the independent chairwoman, while the two Democratic commissioners voted against them.

I believe that ceasing to start redistricting with the establishment of lopsided majority-minority districts will be healthy for Arizona politics. There will still be congressional and legislative districts dominated by Latinos. I expect that any redistricting commission will still establish a legislative district dominated by Native Americans. But there can be a more diverse set of voters left over to make the balance of the state more competitive.

I understand the history behind this peculiar provision of the VRA, the games that were played in redistricting to dilute the voting power of minorities. And I agree with Kagan that changes in circumstances are a matter for Congress to consider, not the court.

However, the premise underlying the case for starting redistricting by establishing a particular number of lopsided majority-minority districts – that minorities have a shared political viewpoint and have to be lumped together to have a chance to get elected – is tough to sustain in today’s Arizona.

In the last election, in a statewide vote, Arizonans elected a Latino, Ruben Gallego, to the U.S. Senate. Previously, another Latino, Adrian Fontes, was elected to the second highest state office, secretary of state. Those two are Democrats. A Republican Latina, Lea Marquez Peterson, won a statewide election to the Corporation Commission.

Ironically, one of Arizona’s majority-Latino congressional districts is represented by a woman of Iranian descent, Yassamin Ansari, a Democrat. While CD 6 is only 27% Latino, but is represented by a Latino, Juan Ciscomani, a Republican.

Tempe is less than 10% black, but has a black mayor, Corey Woods. In Scottsdale, Latinos are just around 10% of the population but, until recently, had a Latino mayor, David Ortega.

Ethnic affinity is a factor in politics. And racism is still a scourge not to be dismissed.

But, clearly, in Arizona, race does not consume or exhaust our politics. It shouldn’t be the only starting point for drawing our political lines. While inveighing against the Louisiana decision as a matter of law is understandable and warranted, the result in Arizona is likely to be a healthier politics and more competitive congressional and legislative elections.

Reach Robb at robtrobb@gmail.com.