EG's State Senate Thread

[Torie]

That 91% black SD is going to be a target for litigation as illegal packing, and I only count 6 SD that are majority black. Currently there are 9 Chicago area seats that elect black Senators. Most observers would say that anything less than 8 SDs where the black population can elect a candidate of choice is going to run into challenges.

You only have 3 majority and 1 plurality Hispanic SDs. There are 4 current seats, though many think a fifth should have been drawn. 59% HVAP is seen as a minimum to avoid dilution charges, though the fifth seat could possibly be under that.

I don't get it. Some of the downstate districts are over 90% white, is that "illegal packing" too? Black people happen to live around other black people, there's nothing I can do about that and I want the districts to look neat with no obscure gerrymanders. And the whole idea of a democracy is for everyone to elect a candidate of their choice, not just a particular race or group. People can elect whoever they want, I think these quotas just make drawing districts harder than it needs to be.

If it was boxed in by other minority districts you might be able to make a case for it, but the district to the west is white, so it is possible to make two districts that will both elect the black population's candidate of choice. Congressional IL-4 has survived decades of challenge despite the bizarre shape because it is constrained by the black CDs. Without that constraint it would be forced to a far more compact shape.

Is it clear it's illegal packing if the lines as drawn of the "packed" CD otherwise hew to defensible redistricting principles (hewing to jurisdictional lines other than perhaps gerrymandered ward lines), such as county town lines and/or have a compact shape that fits in with nicely with the lines of the adjacent districts in the area?  Is there any case which has so held? Although not applicable here, suppose there were a city that was 90% black. Do you have to chop it in half if it will create two districts that have a majority minority VAP population?  I ask because the map lines you questioned as to their VRA legality seem clean enough, and unless there is a chop to lose by generating another black district, I am not sure I see a violation. This would be particularly true if creating another black CD did generate more chops, or more erosity. As I understand it, packing is only illegal if the map does not otherwise follow good district line drawing principles. Granted, political realities may dictate more black districts, but that is another matter.

Anyway, I ran the drill for SD's on the south end of Cook County, and came up with the below (not that the Dems would ever draw such a map because the green SD to the west is Pub leaning, and we can't have that).  Alas I didn't come up with a 90% BVAP CD, but I came reasonably close. Do you think there is a packing rap against that slate blue SD west of Hyde Park?  



And the chartreuse SD numbers are below. Is that supposed to be the 8th black SD (assuming two black SD's can reasonably be drawn without undue manipulation of the lines on the west side of Chicago)? Do the lines need to be made more erose to get the BVAP up for the chartreuse SD? Suppose, as may be the case here, there is a map that gets the BVAP up for this SD that is about the same in erosity? Does that answer turn on whether the manipulation without much additional erosity can theoretically get the BVAP up to 50%, even if a lower percentage would elect a black candidate?



For example, here is another iteration, that looks about as good as the first map, and gets the chartreuse SD up about 3% in BVAP, which may be enough to make the difference between electing a black candidate or not (doubtful actually, because much of that BVAP increase is offset by a lower low turnout HVAP percentage and higher high turnout white percentage when it comes to the BVAP percentage actually voting in Dem primaries), but it's still far short of 50% BVAP. Must it legally be drawn? I would suggest not. If one could hit 50% BVAP, it's a closer case, and might well go the other way.



Again, is there a case that holds that a map that otherwise hews to good neutral criteria needs to change to increase the number of minority representatives in a zone, because that neutral criteria has some districts packed, thereby at the periphery of the zone having a district that does not have enough minority VAP to elect a minority candidate? Within and near a minority zone, does one need to go the chop and/or erosity route to get there (we know that between minority zones that we do not, but how about with respect to one zone)?  It's relatively easy to parse legally when looking at the first minority district to be drawn in a zone, but when we are in a multiple minority district scenario in such a zone, it seems to me that things get a lot more complicated legally in a hurry.

Lawyers love to play with hypotheticals. Who knew?  

[Torie]

I don't think any of your legal citations resolve the legal questions that I posed. As to practice, it is one thing as to what courts allow - quite another as to what courts demand. Are map messes required to generate extra minority districts in a zone?

As to the issue of that chartreuse district having an Hispanic zone, the problem is the black wall around the Hispanic zone. So yes, see below, one can generate two Hispanic districts in the zone rather than one (barely at 59% HVAP each, and that required that chop into Lyons Township (Summit) by the dark pink Hispanic SD to get there), but the result is a erose map mess. And I only have seven black districts. You think a court will demand a map that has eight SD's? Based on what case?  I strongly doubt it absent appellate authority to the contrary.

Indeed, absent that erose mess as to the 7th black SD, even the 7th SD is problematical. The 7th black SD basically connects two separate black zones, and has to crawl snake like around the perimeters of the Hispanic zone (plus an Asian and white zone near downtown that one of the Hispanic SD's needed to take in to get to the right population, without eating into heavily black precincts). Which raises another interesting question. If a black district can reasonably be drawn, except that it cannot in order to generate a district for another minority, must one then go erose to save the minority district otherwise being sacrificed? Or does one only need to decide to generate a district a district for one minority or the other but not both? Any on point cases on that one? I tend to doubt it.  Even if the answer is yes, one must go erose, does that obtain, where as here, the ensuing erose 7th black SD connects two non contiguous black zones?  

Where or where is a case demanding race based gerrymanders violating good line drawing principles, particularly in order to generate additional districts beyond the first one in a minority zone? That is the question.

I suspect what you are used to is what politics demands, vis a vis what the courts will allow. My questions lie elsewhere. I am not even sure jurisdictional chops are required to squeeze out more minority districts, and certainly probably not if there is not a 50% VAP district in play.

In short, we need more litigation! I need to be Governor of all 50 states, and veto a bunch of maps, to get all these interesting questions thrashed out in court. I suspect when done, it will be clear, that no racial gerrymanders are required by law. None, nada, zip. That clearly seems to be the direction SCOTUS is going. They are getting tired of all of this BS. Sure, draw minority districts where drawing them comport with neutral principles, even if other maps also so comporting, would not, but that is about it. The two parties, out of mutual self interest, are conspiring to make it seem as if racial gerrymanders are required by law, when they are not. It's time to strip from their bag of tricks the ersatz legal excuse to the extent it enables them. Rather, they should just be honest, and admit, that they do racial gerrymanders, because they can (to the maximum extent allowed by law in some instances). We should start by suing over the FL-05 CD that was drawn by staff, to get rid of that Leon County split. Pity I don't live in Leon County.



This map btw chops the Hyde Park hood in Chicago, which if governor, I would never tolerate (go chop Bridgeport, go chop the dead mayor Dailey's house, do whatever, but don't chop Hyde Park), but I digress.

[Torie]

Where is the case that says, absent minority concurrence, it needs to be "impossible?" Your map has lots and lots of chops. Sure, it's legal, but is it legally required? That, again, is the point. Absent any case law, that addresses the precise points I am making, color me skeptical. Sure, the "experts" might say to be legally safe, because the law is unclear, do x and y, but that is entirely a different matter. To suggest without any legal authority, that a certain path is probably legally dictated, needs to be questioned. I am questioning it. Maybe you should print out this thread, and ask one of your legal experts, if he has any case law, preferably in the form of a memo, to suggest that my point of view is not well taken.

One other point. It is one thing, if a map follows no neutral principles, to question it, if minorities don't get the max, quite another to challenge a map which does. Illinois is a cesspool, so I can see a court saying since you have no credibility at all, don't screw with minorities. If you chopped and erosed for a bunch of white Dem hacks, you had better chop and erose for non white ones as well, in other words.

Make sense?  Be skeptical of these so called legal experts! They need to show where the beef is. I often find much of what I read to be superficial, and overly conclusory, but that is just me.

Oh, out of curiosity, what are the minority SD's, and what are the VAP's? I must admit that I am amazed even with your chop city map (but not grotesquely rose) that you managed to bag so many minority SD's, that presumably are 50% BVAP, or 59% HVAP (absent the one you say is but 55% HVAP). If some of the black SD's are below 50% BVAP, surely you agree that they are not legally required, correct?

[Torie]

You quoted nothing in the case that one must violate neutral mapping principles to get there, assuming the map in its totality hews to neutral mapping principles. If a map is gerrymandered, I can see a court finding that minorities must get their share of the spoils. If a map does follow neutral principles, to claim a minority is discriminated against is a huge stretch.  

I glanced at the DeGrandy decision. I would first note that Seuter's chat about past discrimination, sounds more like Section 5 rather than Section 2. I don't think SCOTUS would write that way today. Second, it was about internal lines within Dade County. There was nothing written about internal subdivision chops within Dade County, and I doubt any defense was offered that the alleged unequal treatment was based on neutral principles to minimize chops. If something is not argued, because the facts don't support it, then the Court tends to miss pointing out the result might vary depending on that point. To the extent the vague statement of law means something, it is but dictum, because the facts were were discussing, were not not before the court, much less argued. Since then SCOTOS has shown increasing hostility to racial gerrymanders, and certainly to mandating them, if maps are drawn in good faith.

Again, is there any case anywhere, where a map drawn in accordance with neutral principles, was found illegal because there were not enough minority districts drawn? One, just one? That is the case that we need to read, or one with such facts that went the other way. The rest is largely noise at the present time in my view.

[Torie]

You quoted nothing in the case that one must violate neutral mapping principles to get there, assuming the map in its totality hews to neutral mapping principles. If a map is gerrymandered, I can see a court finding that minorities must get their share of the spoils. If a map does follow neutral principles, to claim a minority is discriminated against is a huge stretch.  

We will then have to disagree on the meaning of "determining whether minority voters have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice," as the standard for a section 2 violation when viewing the plan in its totality.

We disagree that at the present time, those words mean that neutral line principles must be violated to achieve an equal share of the spoils, and that only be violating neutral line drawing principles, and achieving such equal share of the spoils, can one effect avoiding a minority having "less opportunity" to "elect members of their choice," because that is what those vague words demand. Absent facts testing what those vague words mean involving the need to violate neutral line drawing principles, we don't have much at all. So yes, we disagree, as to what the law actually demands at the present time. At a minimum, the law on this point is uncertain, rather than probable as to your interpretation. The odds that your interpretation is correct are even lower if non contiguous minority zones are in play. Thanks for the discussion.

It's interesting that we only got into this firefight, because smaller jurisdictions were in play. CD's are so relatively huge, that what we disagree about typically does not come into play. It only would typically if a given minority zone in a metro area had close to a half CD in play, with the rounding up or down, depending on just how choppy and erose the lines were, and whether the map overall hewed to neutral principles.

In response to your codicil, is there anything in the amended statute suggesting that one can find discriminatory effect if neutral line drawing principles are followed? Has that ever been litigated? I keep asking that question. My point of view, my instinct, is that absent something more on point, with facts more on point (what really matters to lawyers is rulings versus fact patterns, not sweeping statements of a general rule, that can be interpreted a host of ways, and was written not really thinking about other fact patterns), if there are multiple maps choices following neutral principles, than one needs to go with the version that maxes minority districts ( at least until the spoils get proportional to population percentages, however that is defined). But that is the extent of it. I would love to argue this before SCOTUS as the rule they should adopt, to get rid of all of this confusion and gaming. It's just awful. It's time to end it.

[Torie]

While you were writing I added a note to my post about discriminatory effect in the VRA, though I'm not sure that would sway you.

I responded above by adding text to my post. Look at the actual facts and the holding based thereon, analogize to the facts to get within the holding, or distinguish the facts to get a different holding, that is the way lawyers think and argue, and this is the way Courts distinguish cases from prior holdings, based on different facts. Lawyers, at  least the good ones,  rely far less on vague sweeping statements of legal rules, as to their application to fact patterns not argued at the time, and not thought about by the Court as a result. They work with fact patterns and holdings based thereon, and analogize and distinguish. And that is why the legal profession loves hypotheticals. It helps to define the ultimate perimeters of where each legal outcome obtains.

[Torie]

An at large voting system is not analogous in my view to neutral line drawing. Neutral line drawing allows for a variety of maps. Pick the one that helps the minorities the most. What you are essentially asserting is that if minority locations mean that reasonable line drawing must be thrown in the trash, I doubt SCOTUS will go there, particularly in this day and age. In reality, neutral line drawing will typically not have much of an adverse effect on minorities, since they tend to be concentrated in inner cities. The toughest case is where, which will be atypical, a minority is on both sides of a line, and to create a minority district, one must do an extra chop. The case is clearest for the first district. We may  have to wait a long time for a case however, generated by the Pubs doing what they tried to do in Illinois. Would a court have demanded another Hispanic CD that was able to elect an Hispanic, but was hideously erose, chopped all over the place, and involved non contiguous Hispanic nodes? That would be the question before the court.

In the case the Pubs lost in Illinois, did the court just focus on 50% HVAP not being sufficient - rather one needed 50% HCVAP, or even a figure higher than 50% HCVAP (if 59% HVAP was higher than 50% HCVAP), or did it also mention the chops and erosity? I do think within a jurisdiction, with respect to a contiguous minority population, one probably does need to go erose to create more minority districts, unless really grotesque perhaps.  That is because, at least in part, as we well know, measuring erosity is subject to a variety of interpretations and ways to measure.

We may have to wait a long time for a case, alas, because in many places, the Dems not maxing minority seats has no partisan impact, or political realities force them to max such seats within the parameters we are arguing about. An example of the former is Maryland, where the Steny Hoyer seat should be black under your standard, but isn't (except maybe not, since 2 black seats is probably proportional to the black population in Maryland), and an example of the latter is New York. However, in most places, with respect to blacks, they tend to be within the big city. It will also be rare, because since one has some choice as to where to chop, typically with neutral criteria, it will be possible to select the chop locations that max the number of minority seats.

I really cannot think of an instance when it comes to CD's anywhere, where there is likely to be a partisan battle over this issue at the moment, other than your example in Illinois, where it appears that the trigger was not in play, because the Hispanic population of the second CD was too low. But for legislative seats, the ground for this type of litigation might be more fertile.

[Torie]

At large voting is very different, because with polarized voting, it is a recipe for shutting out the minority entirely. And there is no good policy reason for it. There is a good policy reason for neutral line drawing, and the cases where it screws the minority will be rare, and even then, only at the margins when it comes to proportionality.

[Torie]

At large voting is very different, because with polarized voting, it is a recipe for shutting out the minority entirely. And there is no good policy reason for it. There is a good policy reason for neutral line drawing, and the cases where it screws the minority will be rare, and even then, only at the margins when it comes to proportionality.

True, but that wasn't relevant to the SCOTUS decision. To SCOTUS it was just a neutral districting principle, and at that time they found that it was not a violation of section 2. Because of the policy implications you mention Congress acted to change the VRA, but they didn't identify whether a neutral districting principle was good policy. Congress amended the VRA to say that any policy, good or not, that had a discriminatory effect was a violation. That effect includes anything that diminishes the minority's fair participation in the political process.

Than any lines, no matter how gross, under that interpretation, that do not max minority seats, would be deemed to have a discriminatory effect. I doubt SCOTUS would interpret the statute as amended as abandoning any semblance of a balancing test. Nor do I think any court has demanded gross lines. Rather, I think the courts would find any approach that is grounded on good public policy, even if it does not max minority seats, is not discriminatory. Failing to max minority seats does not automatically mean it's discriminatory. It would be interesting if there were any legislative history supporting the bolded bit of your statement, that " any policy, good or not, that had a discriminatory effect ... ." It would be further interesting to ascertain if the legislative history elucidated what "discriminatory" meant.

By that rationale, down the road, maybe to elect a black in the Cleveland area, a CD needs to go  to the black neighborhoods of both Akron and Canton (or Youngstown), in a long twisted snake. Is that what you think the VRA means, short of such an interpretation being an Unconstitutional racial gerrymander (which would only obtain if the lines did not have a partisan effect, which alas it would, so it actually would be Constitutional)?  How about a CD in Upstate NY that connects the black neighborhoods of Buffalo, Rochester, and Syracuse, if it got the number up to 50% BVAP? Sure, NY may have its "fair" share of black Congresspersons already, but Ohio would not if it had no black in Congress at all, and even just one is probably short changing them.

Take a look at the map below. Assume that the BVAP were 50% (it might get there by 2020, since the black population of Indianapolis is growing robustly). Further assume that the two black nodes are connected by a corridor running down the middle of I-65. The drawing of this CD has a partisan purpose (it gets rid of a Dem Congressperson, or at least makes one of the two Dem seats marginal), so it's Constitutional. Must this seat be drawn under your interpretation of the VRA? If not, why not? I mean, there is no contiguity threshold in the VRA explicitly set out either, is there?  Assume the Congressperson from Indianapolis is not black, so we don't have that distraction.



Lawyers just love pushing hypotheticals to the extreme. That's why we make the big bucks.

[Torie]

"Plaintiffs will show a map with modest accommodations from the strict rules to show that a plan can both substantially comply with neutral districting and provide fair opportunity for minorities."

Well, we are making progress now. We are now down to what "modest" means, a word also not in the statute, but rather made up by you. See how speculative this all is?  But I get where you are going, which as you say, is getting into the balancing test zone area, which is were SCOTUS mostly lives. So we find some common ground - at last!  

Anyway, in that spirit, I would say, "modest" means, the metrics of doing the balancing test means,  choosing the plan out of those available following neutral redistricting principles, that gets minorities closest to proportionality. Pick the chops that do that out of the array of possibilities. Yes, cheat a bit on erosity if the contiguous minority zone is erose to the extent necessary. That gets the process out of the loosey goosey, wholly subjective, I know what's modest when I see it approach. I would just be amazed if SCOTUS ruled otherwise, simply because Congress went the "effect" route to get rid of at large voting. Requiring maps to follow good government principles, and not sacrifice that loadstar, merely in order to get closer to proportionality, is just not discriminatory.

Non good government maps that suddenly become good government when it comes to minority districts, thereby reducing their number, would be discriminatory. Consistency here is key. So in Illinois, where the idea of good government maps is subversive and un-American, your map may well be VRA required. It's probably less erose and choppy  than the existing map. There is no good government metric in play to defend. If you are in the business of drawing those erose messes to elect white Democrats to Congress downstate, you had better be equally messy when it comes to generating minority CD's. Anything less, is well, yes, you guessed it, "discriminatory!"

[Torie]

I assume you are asking this assuming the Muon2 statute is adopted in Illinois. Again, one needs a more objective standard of what is "modest." Maybe it's elastic depending on far one gets from proportionality, and maybe not. And is the proportional test based on population percentages within just the metro area, or statewide, for this purpose (so one needs a disproportionate number of black districts, to make up for blacks being elsewhere, but too thin on the ground to generate a district). How many minority districts do you lose, by following your metrics (with some cheat room for erosity, particularly to deal with competing minority zone "wall" issues)?  Of course, with black districts, one needs to decide what BVAP you need to elect a black.

[Torie]

At large voting is very different, because with polarized voting, it is a recipe for shutting out the minority entirely. And there is no good policy reason for it. There is a good policy reason for neutral line drawing, and the cases where it screws the minority will be rare, and even then, only at the margins when it comes to proportionality.

In Mobile, the city commission exercised both executive and legislative authority. It was replaced by a mayor-city council system.

I think a reasonable VRA case can be made in Hudson, because of its multi-member districts. The ward with the greatest black population is oversized, and it splits a census block with a large concentration of blacks. It's not going to matter that boundary was set 150 years ago.

There is no way to draw a 50% BVAP ward. In fact, I don't recall a single census block that was 50% BVAP. So no, the VRA is not subject to being triggered.

[Torie]

At large voting is very different, because with polarized voting, it is a recipe for shutting out the minority entirely. And there is no good policy reason for it. There is a good policy reason for neutral line drawing, and the cases where it screws the minority will be rare, and even then, only at the margins when it comes to proportionality.

In Mobile, the city commission exercised both executive and legislative authority. It was replaced by a mayor-city council system.

I think a reasonable VRA case can be made in Hudson, because of its multi-member districts. The ward with the greatest black population is oversized, and it splits a census block with a large concentration of blacks. It's not going to matter that boundary was set 150 years ago.

There is no way to draw a 50% BVAP ward. In fact, I don't recall a single census block that was 50% BVAP. So no, the VRA is not subject to being triggered.

You only have to be able to draw a single aldermanic district (1/10 or 1/11) of the total population. Hudson is using an oversized multi-member district as a device to deny the right to vote.

I doubt it, but I would tend to doubt there is any case law about making districts smaller, as opposed to a typical number. Anyway, at the moment, there are 3 blacks and 1 Bangledeshi out of the 10 council members elected by district. So the representation is in fact reasonably proportional.