“Non-Retrogression Without Law” – blog on the right to vote


This is a co-authored post by Eric McGhee, Chris Warshaw, and myself about our new article, Non-Retrogression Without Law, on the aftermath of Shelby County vs. Holder in the context of redistribution:

A decade ago, the Supreme Court ruled Shelby County vs. Holder that a key provision of the Voting Rights Act was unconstitutional. For nearly half a century, Section 5 of the VRA had prevented certain, mostly southern, states from changing their electoral laws unless they received prior approval (“pre-approval”) from federal agencies. Pre-approval was granted only if the states concerned could demonstrate that their proposed changes would not result in a reduction (“reverse”) in the electoral influence of minority voters. In Shelby County, the court ruled that the formula used to determine which states are subject to Section 5 was invalid because it relied on allegedly outdated data. Since the court’s decision, Section 5, once the “crown jewel” of the civil rights movement, has been suspended.

With Shelby CountyAs the tenth anniversary of the crime approaches, one might think that by now we know the implications of the case for American democracy. And as for the voting laws themselves, we have a reasonable understanding. Over the past decade, states that used to fall under Section 5 have enacted many voting restrictions — photo ID requirements for voting, cuts in early voting, polling station closures, and the like — that would never have been pre-released had Section 5 still been in force . For the time being, however, these measures do not appear to have unduly harmed minority voters. Several studies suggest that the gap between minority and white political participation has since widened no more in formerly covered states than in formerly uncovered states Shelby County.

But the policy that led to the most objections to pre-approval in the years leading up to the court’s decision was not voting restrictions. These were newly drawn district maps. And no information was available prior to our upcoming article Shelby County‘s implications for redistribution. The reason is Shelby County was handed down in 2013—after Federal states had already designed their districts for the 2010s. Following the court’s ruling, states released from the Section 5 pre-authorization system simply retained their existing districts for the remainder of the decade. They didn’t update their counties until the 2020 census was completed and it was time to draw new boundaries for the 2020s. The recently completed 2022 election was therefore the first to be held under maps created in a non-Section 5 world.

In our article, we analyze the new (2020s) and old (2010s) Congressional, State Senate, and Statehouse plans for all fifty states. For each plan, we determine the number of “minority ability districts”—districts where minority voters can vote for their preferred candidates. Minority constituencies are common, but not necessarily so, constituencies where minority voters form an absolute majority of the population. Back when Section 5 was still in effect, it prohibited affected states from reducing the number of districts with minority capabilities on any of their maps.

There are many reasons to expect Shelby County to have violated minority representation. But we find relatively little regression in the final round of redistribution. At the congressional level, eight out of nine formerly covered states (all except Texas) created as many minority ability districts for the 2020s as they did for the 2010s. At the level of state legislation, there was a little more regression: a total of five new maps in formerly covered states with fewer minority ability districts than their predecessors. However, this decline was more than offset by increases in minority ability districts elsewhere. Overall, in all the states formerly covered, the number of minority ability districts in the state legislature actually grew by five. Most of this growth has taken place in so-called “crossover” districts, where minority voters, with some support from white voters, can vote for their candidates of choice.

Formerly covered states also did not perform worse in terms of minority representation than states not subject to the special rules of Section 5. Even in the former group, the total number of minority districts has increased incrementally in the last redistricting cycle. But in states that were mostly or entirely unaffected by it Shelby Countythe total volume of minority ability districts fell at fourteen. Our conclusion about regression in formerly covered states – that not much of it has occurred – is the same whether our calculations are absolute or relative to the baseline of formerly uncovered states.

Why didn’t the fall of Section 5 have more dramatic consequences? A likely answer is the status quo tendency of many line artists. Under pressure from incumbent operators who are happy with their districts, mapmakers often minimize changes to existing boundaries. This aversion to major disturbances was evident in our data. In as many as two-thirds of the 2020s plans we evaluated, the number of minority capability districts was exactly the same as in the 2010s. Most line artists therefore sought neither to improve nor to worsen minority representation—rather, to avoid altering it in any way.

Another explanation for our results is that regression is typically unnecessary for states to achieve their partisan goals. In addition to determining the volume of minority capability districts in each plan, we calculated the number of Democratic districts. We then examined the relationship between the change in minority skills districts from the 2010s to the 2020s and the change in Democratic districts. Notably, there was no consistent association between these variables. Many new maps, many of them partisan Gerrymander, contained significantly more or less Democratic districts than their predecessors. But some of these cards reduced minority representation, others increased it, and most just left them alone. By and large, neither Democratic nor Republican line draftsmen have systematically subtracted (or added) minority ability districts for reasons of party advantage.

While our focus here is on Section 5, Shelby County left untouched the other important provision of the VRA, Section 2. If a number of conditions are met, Section 2 requires jurisdictions across the country to create more minority ability districts than they currently possess. States previously falling under Section 5 may then have been deterred from backtracking by the prospect of litigation under Section 2. If successful, Section 2 lawsuits could have compelled those states to restore the minority ability districts they removed. However, this potential deterrent effect should not be overstated. Section 2 only protects a subset of minority ability districts, while Section 5 previously shielded all of them. Plaintiffs’ recent track record in Section 2 litigation has been abysmal. And Section 2 is currently under attack for reasons similar to those that doomed Section 5.

We would like to emphasize that our findings not mean that Shelby County had no impact on the representation of minorities. Again, we have identified six district maps in formerly covered states that have mined minority capability districts: the Texas Congress map, the maps of the state senates of Georgia, Mississippi, Texas, and Virginia, and the Mississippi State House map. All of these regressions would probably have been avoided if Section 5 had still applied. And there could be further regression in the future as line artists become less risk averse or more willing to risk Section 2 liability. We also considered only statewide district plans. But many of Section 5’s activities have historically been local. Our analysis says nothing about whether and to what extent formerly covered municipalities made use of it Shelby County reduce minority representation.

Our claim, then, is only that the cancellation of Section 5 did not lead to it widespread Regression (at least not in statewide district plans). The law now allows formerly covered states to eliminate minority ability districts in many cases. But it turns out that the law isn’t the only—or even the most important—driver of backsliding. This title instead refers to non-legal factors such as the line artists’ bias towards the status quo and the pursuit of partisan advantages. For the most part, these factors did not cause the formerly covered states to disband the minority ability districts in the last redistricting cycle. So we ended up seeing little regression, even though the law would have allowed a lot more.

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