Last week we tried a thought experiment on the Empire. Following up on our reporting on ethnic and racial minority groups’ efforts during the redistricting process to have lines drawn that better served “communities of interest” (i.e. racial and ethnic groups), we took up one of the ideas floating around. Is it possible to create a Congressional district in Queens that was at least 40 percent Asian?
The short answer was, yes—see below.
But, it turns out, just because it’s possible to draw a 40 percent Asian district doesn’t mean it’s legal, if even likely, thanks in part to the long shadow cast by the landmark 1965 Voting Rights Act.
But isn’t the VRA (that’s the cool way to refer to it) all about helping minority groups, like, vote?
It is. But it’s more than that. Let’s take a step back to review what the VRA is, how it impacts and affects us here in New York, specifically during the redistricting process. Then we’ll get to why our 40 percent Asian district in Queens would never fly.
Voting Rights Act 101
As mentioned the Voting Rights Act was enacted in 1965, and has been evolving over the years in a number of ways. Its genesis is in the civil rights struggles in the South, as you might recall, and the systemic disenfranchisement of African American voters. Today it remains a bulwark against attempts to deny voters their constitutional rights.
There are two main components of the VRA that we’re concerned with: Section 2 and 5.
Section 2 applies to everyone, everywhere, in any voting situation. It applies specifically to areas where minority groups should, because of their relative size and like-mindedness, be able to vote for a preferred candid. Section 2 is violated when, because of a racially polarizing practice—gerrymandering that deludes the minority vote, literacy tests, etc. — means a large, politically-cohesive minority group is denied representation through block-voting by the white majority.
“It prohibits electoral systems and practices that have a discriminatory purpose, or have a discriminatory result,” said Robert Kengle, co-director of the Lawyers’ Committee for Civil Rights Under Law voting rights project.
While Section 2 covers everyone, Section 5 applies only to specific states, counties or cities identified by the Department of Justice as having historical issues with discriminatory electoral practices. Most of the South continues to be covered under Section 5, but New York City has three boroughs—Manhattan, the Bronx and Brooklyn—that adhere to Section 5 as well.
Whereas Section 2 is concerned with the after effects of an electoral system, Section 5 is concerned with what the law calls “retrogression.” Anything that affects voting—like redistricting—in an area subject to Section 5 has to be pre-cleared by the Department of Justice or a Federal court in DC to make sure minority voters will not, through the new plans, lose the ability to vote for a preferred candidate.
Simple example: there are currently 10 districts represented by elected officials from minority communities. If plans are drawn that will likely result in only six officials, this would likely be seen as retrogression and the Department of Justice would not pre-clear, or approve, those plans.
“In Section 5, under the affects test, what you're looking for is whether there is back sliding,” Kengle explained. “Whether, when you compare the existing plan with the new plan, whether the new plan worsens the position with minority voters in the jurisdiction as a whole."
Protecting New York City voters
When it comes to applying the two provisions, most of the focus in the city is on Section 5. Because we have minority candidates from minority districts elected at every level of city and statement government, Section 2 isn’t a concern. This isn’t the case for Nassau County, where local officials are being sued in Federal court for violating Section 2 when they allegedly drew districts that unfairly broke up minority communities.
The same can’t be said for Section 5 in New York City.
“When redistricting is done, the state has to be aware of the minor populations and where you can create—without doing violence to traditional districting principles—minority districts,” said Randolph McLaughlin, a professor at Pace University who is involved with the Nassau County court case.
If you look at, for example, the Congressional districts of Congressman Charles Rangel in Manhattan; José E. Serrano in the Bronx; and Yvette Clarke, Ed Towns and Nydia Velazquez (mostly) in Brooklyn, they will need to be preserved to make sure the populations in those districts are able to vote for representatives from their communities.
How not to draw a map
This is where things get tricky—and partly why our 40 percent Asian district would never fly. While minority voting rights are protected, the Supreme Court has ruled that race alone can’t be the determining factor when drawing a district. It’s also determined that misshapen and contorted race-based gerrymandered districts (like our map) are also unconstitutional.
“That’s been ruled to be impermissible: you can't just create districts that are misshapen or not contiguous or not compact, just to lump minorities into it,” McLaughlin said.
So what mapmakers have to attempt are districts as tightly compact as possible, without overly stuffing or intentionally dividing minority communities, that ensure that the three boroughs (which really means the whole city) don’t lose any minority representatives.
The issue takes on a different dimension at the state level, and that’s why you see civil rights groups producing detailed plans to increase the number of minority-majority districts across the city. This could be the beginning of a Section 2 court case if the new lines can be shown to meet the high threshold of proof that minority voters have been disenfranchised.
Then again, according to Jeff Wice, a lawayer who has worked with the Assembly majority during the redistricting effort for years, we should expect that, no matter what lines get revealed, someone’s going to be suing.
“What I've found going back to the 1980s, 90s and post-2000 process is that congress redistricting never gets discussed until state legislative redistricting is decided, and congress redistricting has never been decided without federal or state court intervention," Wice said. Fun!
Next week we’ll take a look at the Brooklyn seat of Yvette Clarke to look at how the African American community will fare during the redistricting process.