Summary of the current state of play the Voting Rights Act as applied to redistricting

[David Hume]

For understandable reasons, there is considerable confusion as to the current state of play of the VRA. Below is my attempt to summarize it in a practical way as a resource for the cognescenti, who already have a good understanding  of the terminology. I intend this to be a crowd sourcing effort, so if anyone has a better way to phrase the rules, or add to it, or correct errors, they are free to make suggested edits. I typed this out in some haste, so my ego will not be deflated when others discern meritorious defects.

At some point, as a suggestion, it might be useful to sticky this thread, for purposes of reference, when it gets to be in reasonable shape, as determined by the Great One and Master of the Board, Muon2.

Summary of VRA law as of 1-17-22

1. There is no retrogression concept anymore.

2. If there is not racially polarized voting in the subject region, the VRA does not apply.

3. As a percentage of the number of districts in a state,  the VRA does not require the drawing of  performing minority districts that is greater than their percentage share of the population of the state.

4. If there is racially polarized voting, if a "Compact" 50% CVAP district of one minority cannot be drawn, the VRA does not apply. If you can, it does (a “Gingles Trigger District”).

5. If you can draw a Gingles Trigger District, you need not draw a 50% CVAP district if the district will be performing for the subject minority with a lower percentage. A minority performing district is referred to as a VRA Compliant District.

6. Where one region of a state requires the drawing of a VRA Compliant District, you may not draw a VRA Compliant District elsewhere  in the state in lieu of a VRA Compliant District in the subject region.

7. Where there is racially polarized voting,  neither  (i) a non-Compact district that has more than 50% CVAP of the minority if drawn for racial rather than political reasons,  nor (ii) a more than 50% CVAP district of the minority that does not hew to neutral redistricting principles, where a district that does hew to neutral redistricting principles can be drawn at a lower minority CVAP percentage that is 50% CVAP or more, is a VRA Compliant Districts.

The above rules are clear. Ambiguities that remain are:

1. What constitutes a “Compact” district such that it becomes a Gingles Trigger District.

2. Where a Gingles Trigger District can be drawn, is a district drawn for partisan  rather than racial "packing," a VRA Compliant District where a more compact minority performing district can be drawn with a lower minority CVAP that better hews to neutral redistricting principles under each of the fact patterns:

a. The district has a more than 50% minority CVAP?

b. The district has no more than a 50% minority CVAP?

Note that if in both instances a and b above, the districts drawn are not VRA Compliant Districts, then it becomes a possibility that is a Gingles Trigger District (that requires the drawing of a VRA Compliant Districts) is not itself a VRA Compliant District because a more compact district that hews to more neutral redistricting principles is possible to draw that is minority performing. In other words, a Gingles Trigger District is not per se a VRA Compliant District.

Great summury!

Based on 4, FL-05 is not VRA protected, since a, it is less than 50% CVAP, b, it is more similar than the old NC-12 snake than reasonably "compact".

Even GA-02 is dubious, since it completely relies on how court interpret compactness.

[David Hume]

2. Where a Gingles Trigger District can be drawn, is a district drawn for partisan  rather than racial "packing," a VRA Compliant District where a more compact minority performing district can be drawn with a lower minority CVAP that better hews to neutral redistricting principles under each of the fact patterns:

a. The district has a more than 50% minority CVAP?

b. The district has no more than a 50% minority CVAP?

Note that if in both instances a and b above, the districts drawn are not VRA Compliant Districts, then it becomes a possibility that is a Gingles Trigger District (that requires the drawing of a VRA Compliant Districts) is not itself a VRA Compliant District because a more compact district that hews to more neutral redistricting principles is possible to draw that is minority performing. In other words, a Gingles Trigger District is not per se a VRA Compliant District.

What's the exact definition of minority performing district? Say a compact district with 45% black always elects a black in D primary, but D may not win in general election, which depends on the national environment. Is this considered as a minority performing district?

[David Hume]

2. Where a Gingles Trigger District can be drawn, is a district drawn for partisan  rather than racial "packing," a VRA Compliant District where a more compact minority performing district can be drawn with a lower minority CVAP that better hews to neutral redistricting principles under each of the fact patterns:

a. The district has a more than 50% minority CVAP?

b. The district has no more than a 50% minority CVAP?

Note that if in both instances a and b above, the districts drawn are not VRA Compliant Districts, then it becomes a possibility that is a Gingles Trigger District (that requires the drawing of a VRA Compliant Districts) is not itself a VRA Compliant District because a more compact district that hews to more neutral redistricting principles is possible to draw that is minority performing. In other words, a Gingles Trigger District is not per se a VRA Compliant District.

What's the exact definition of minority performing district? Say a compact district with 45% black always elects a black in D primary, but D may not win in general election, which depends on the national environment. Is this considered as a minority performing district?

Thank you.

If a district less than 50% BCVAP district cannot elect (or would have trouble electing) that minority candidate of their choice due to racial block voting, it is not a minority performing district. A 45% BCVAP district that is not minority performing would be highly unusual, but possible. 40% BCVAP is probably a realistic possibility sometimes as not minority performing. 49% would be near impossible not to be minority performing in this day and age.

Thanks for your reply. But does this mean say if R win GA-2 this year, it will make the seat not VRA compliant? So D can sue to redraw to make it a safe D district? (Assuming GA-2 is considered VRA seat for now.)

[David Hume]

Regarding racially polarized voting, this means that it has to be that minority vote in one way, while the white vote the other way, effectively D v. R. But in places like ATL, where a large number of liberal white vote D, does this mean racially polarized voting ceases to exit? And if so, the black districts there would not be VRA protected?

[David Hume]

2. Where a Gingles Trigger District can be drawn, is a district drawn for partisan  rather than racial "packing," a VRA Compliant District where a more compact minority performing district can be drawn with a lower minority CVAP that better hews to neutral redistricting principles under each of the fact patterns:

a. The district has a more than 50% minority CVAP?

b. The district has no more than a 50% minority CVAP?

Note that if in both instances a and b above, the districts drawn are not VRA Compliant Districts, then it becomes a possibility that is a Gingles Trigger District (that requires the drawing of a VRA Compliant Districts) is not itself a VRA Compliant District because a more compact district that hews to more neutral redistricting principles is possible to draw that is minority performing. In other words, a Gingles Trigger District is not per se a VRA Compliant District.

What's the exact definition of minority performing district? Say a compact district with 45% black always elects a black in D primary, but D may not win in general election, which depends on the national environment. Is this considered as a minority performing district?

Thank you.

If a district less than 50% BCVAP district cannot elect (or would have trouble electing) that minority candidate of their choice due to racial block voting, it is not a minority performing district. A 45% BCVAP district that is not minority performing would be highly unusual, but possible. 40% BCVAP is probably a realistic possibility sometimes as not minority performing. 49% would be near impossible not to be minority performing in this day and age.

Thanks for your reply. But does this mean say if R win GA-2 this year, it will make the seat not VRA compliant? So D can sue to redraw to make it a safe D district? (Assuming GA-2 is considered VRA seat for now.)

It depends how racially polarized the voting is, and perhaps who bothered to show up and vote, and who did not. But 1) yes, it would then  be proved to be a non performing CD if the black Dem received no white votes other than Jimmy Carter's, and subject to redraw based on evidence not available at the time it was drawn (the subsequent election results), or 2) no, because actually the loss was due to the vote of  rural blacks now disaffected from the undue influence of the Dem party by urban woke Godless upper middle class Ivy League educated whites, and thus your current assumption that it was subject to the VRA is false because there is an insufficient level or racially polarized voting as the disdain of Dems in this set of zip codes becomes biracial.

Say R runs a black candidate (very likely to happen), and gets 15% of the black votes. D (be it Bishop or not) gets 15% liberal white votes. But due to black turnout drops, R wins narrowly. Do you think D should/will sue to redraw?

[David Hume]

2. Where a Gingles Trigger District can be drawn, is a district drawn for partisan  rather than racial "packing," a VRA Compliant District where a more compact minority performing district can be drawn with a lower minority CVAP that better hews to neutral redistricting principles under each of the fact patterns:

a. The district has a more than 50% minority CVAP?

b. The district has no more than a 50% minority CVAP?

Note that if in both instances a and b above, the districts drawn are not VRA Compliant Districts, then it becomes a possibility that is a Gingles Trigger District (that requires the drawing of a VRA Compliant Districts) is not itself a VRA Compliant District because a more compact district that hews to more neutral redistricting principles is possible to draw that is minority performing. In other words, a Gingles Trigger District is not per se a VRA Compliant District.

What's the exact definition of minority performing district? Say a compact district with 45% black always elects a black in D primary, but D may not win in general election, which depends on the national environment. Is this considered as a minority performing district?

Thank you.

If a district less than 50% BCVAP district cannot elect (or would have trouble electing) that minority candidate of their choice due to racial block voting, it is not a minority performing district. A 45% BCVAP district that is not minority performing would be highly unusual, but possible. 40% BCVAP is probably a realistic possibility sometimes as not minority performing. 49% would be near impossible not to be minority performing in this day and age.

Thanks for your reply. But does this mean say if R win GA-2 this year, it will make the seat not VRA compliant? So D can sue to redraw to make it a safe D district? (Assuming GA-2 is considered VRA seat for now.)

It depends how racially polarized the voting is, and perhaps who bothered to show up and vote, and who did not. But 1) yes, it would then  be proved to be a non performing CD if the black Dem received no white votes other than Jimmy Carter's, and subject to redraw based on evidence not available at the time it was drawn (the subsequent election results), or 2) no, because actually the loss was due to the vote of  rural blacks now disaffected from the undue influence of the Dem party by urban woke Godless upper middle class Ivy League educated whites, and thus your current assumption that it was subject to the VRA is false because there is an insufficient level or racially polarized voting as the disdain of Dems in this set of zip codes becomes biracial.

I did some research and am suspicious about this. In Johnson v. De Grandy (1994), "the ultimate right of ? 2 is equality of opportunity, not a guarantee of electoral success for minority-preferred candidates of whatever race." This seems to mean that the VRA districts should give minority a good opportunity, but not a guarantee to always elected their preferred candidate.

I am not sure how far this can goes. Say if R draws AL-07 with 51% black, and it elects a D with about 50% chance due to reasons like low black turnout or high quality R candidate. Would they may prevail in the friendly 11th circuit and SC?