On an abnormally chilly morning this past summer, a group of black leaders gathered in front of the California African-American Museum in Los Angeles to oppose what they called an “effort to turn back the clock” and “declare the premature death of black political power.” The purported death sentence was issued one day before, with the release of prospective statewide redistricting maps, which consolidated African-American voters in Los Angeles County into one congressional district. Racial gerrymandering has been a common method of disenfranchising black Americans since the days of Reconstruction. But this time, the law that protesters were opposing was one identified with racial progress: the Voting Rights Act of 1965.
“The Voting Rights Act is being used to disadvantage black people in Los Angeles,” explained Jackie Dupont-Walker, the influential leader of the Ward Economic Development Corp., in the Los Angeles Sentinel, one of L.A.’s leading African-American community newspapers. Dupont-Walker wasn’t alone in making the explosive claim. The City of Angels’ most prominent black leaders have taken a united stand against the landmark civil rights legislation. Representative Karen Bass, the first black woman in the United States to serve as speaker of a state legislature, added, “We should not accept the Voting Rights Act.” An African-American member of the state’s redistricting commission lamented at a July hearing: “The Voting Rights Act is now . . . an instrument to be used against the African-American population.”
It’s a dramatic role reversal. Long considered one of the most important pieces of legislation in U.S. history, the Voting Rights Act now finds itself under attack from the same minority groups that once championed its adoption. California’s Citizens Redistricting Commission, which spent the early part of the year redrawing the state’s political maps, ultimately bowed to African-Americans’ demands that it maintain three safe congressional seats in South L.A. The commission’s compromise sets the stage for a showdown in court and at the ballot box. California’s supreme court last week unanimously rejected two challenges to the commission’s new congressional and state senate maps, which the Republican plaintiffs vow to appeal. Opponents of the commission’s work, who also include several Democratic incumbents whose seats are no longer so safe, have until November 15 to collect 504,000 signatures for a referendum that would ensure the new district maps aren’t in effect for the 2012 election cycle.
Over the last few years, California passed two redistricting-reform initiatives—Proposition 11 in 2008 and Proposition 20 in 2010. The effect of both was to strip the legislature of its redistricting authority and vest it in the independent citizens’ commission. The initiatives outlined strict line-drawing criteria, including compliance with the federal Voting Rights Act. Douglas Johnson, a redistricting expert with the Rose Institute of State and Local Government at Claremont McKenna College, says that the Voting Rights Act is one of the most difficult laws to understand. The initiatives’ authors, in an effort to avoid any confusion, added a provision that required the commission to hire special legal counsel, a responsibility eventually bestowed on George Brown and Dan Kolkey of Gibson, Dunn & Crutcher.
Throughout the mapmaking process, Brown and Kolkey advised the commission that in order to comply with Section 2 of the Voting Rights Act, the commission must draw every possible “majority-minority” district in any area with a history of racially polarized voting. Brown made it easy for the citizen commissioners; he gave them a simple numerical bright line of 50 percent. In essence, if census figures show half a district’s worth of historically underrepresented minorities, the commission must draw a corresponding district. Brown based his standard on a 2009 U.S. Supreme Court decision, Bartlett v. Strickland, which set a 50 percent standard for legal standing in redistricting challenges. But with demographic changes in Los Angeles County, that benchmark spelled trouble for the region’s three black members of Congress: Karen Bass, Maxine Waters, and Laura Richardson. Since the 2001 reapportionment, L.A.’s black population declined from 9.5 percent to 8.3 percent—enough for one, maybe two, but certainly not three majority-black districts.
Black political leaders weren’t about to surrender that third congressional seat without a fight. “We ain’t going nowhere,” vowed L.A. County Supervisor Mark Ridley-Thomas in July. “Our descendants fought, bled, and died to have a right to participate in the political process and we are not going to start sitting down now.” Redistricting commissioner Andre Parvenu proposed an alternative plan to split black voters across three districts. Just one problem: the “30-30-30” plan was a clear violation of the Voting Rights Act. “I don’t think that on its face there is a legal basis for saying just draw three districts with 30 percent African-American voting strength in the same areas that they’re in now,” Brown told the commission in May. “I don’t understand the legal argument for doing that.” Other redistricting experts echoed Brown’s view. Chandra Sharma, a redistricting consultant with Meridian Pacific, testified that a 30 percent split would “apply a different [VRA] standard to Latino populations versus African-American populations.” He added in a recent interview: “The redistricting commission, in drawing congressional districts in South Central Los Angeles, chose to violate both their own mandate and the Federal Voting Rights Act in order to protect a set of incumbent legislators.”
This inconsistent application of the Voting Rights Act motivated some redistricting commissioners to rethink their interpretation of the law altogether. Commissioner Connie Galambos-Malloy said at a tear-filled July 24 hearing, “The Voting Rights Act is not just about Section 2, and it is not just about Section 5. It’s about the big picture. It’s about not just these districts, but when we zoom out and we look at the region, and when we look at the state, and ultimately when we look at the country; what impact is the redistricting process having on minorities?” Two commissioners weren’t ready to adopt such an expansive reinterpretation of the Act and opposed the congressional maps on VRA grounds. Ultimately, the commission carved out a brand-new district in which Waters may safely run.
Redistricting commissioner Michael Ward, a Republican from Anaheim and the most vocal critic of the commission’s work, came out swinging. “I believe that the Citizens Redistricting Commission broke the law. Nowhere is this more apparent than with the commission’s failure to follow the Voting Rights Act,” he said at a press conference following the commission’s final vote on August 15.
To be fair, not everyone is convinced that the commission’s Los Angeles County congressional lines violate the Voting Rights Act. Johnson, the lead technician for Arizona’s 2001 redistricting process, has handled multiple Voting Rights Act challenges. He points out that the law never establishes a numerical standard. “There’s no magic number in the Voting Rights Act about what’s an effective district,” he said. “It’s ironic that the commission knowingly violated their own rules and in the process happened to follow the Voting Rights Act.” Despite his contrarian view, Johnson believes the commission might be susceptible to a legal challenge based on other racial gerrymandering violations.
In Shaw v. Reno (1993), the Supreme Court ruled that states couldn’t draw lines based predominantly on race. “A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid,” Justice Sandra Day O’Connor wrote for the Court. Johnson argues that “time and time again,” California’s commission did just that—draw lines around ethnic communities, most obviously with the Latino communities of South El Monte.
Perhaps most significantly, the African-American community in Los Angeles could be setting a new precedent for how the Voting Rights Act is applied nationwide. “The Voting Rights Act is a monumental piece of legislation that has helped elect minorities all throughout the country,” said Sharma. “If you set a new L.A. County precedent and apply it to other states, the consequences could be disastrous.” Alas, Californians likely won’t know just what the consequences will be unless the U.S. Supreme Court weighs in. Get ready for an ugly fight.