Section V is on the ropes

[True Federalist (진정한 연방 주의자)]

One thing I've never understood is why Arizona is required to pre-clear. There are barely any black people there to disenfranchise, and there certainly weren't any when the law was passed. Was there some sort of discrimination against Hispanics going on there?

Yes.  The test for whether a jurisdiction would be subject to preclearance was the percentage of the voting age population that was registered to vote.  With a requirement for English language literacy keeping Hispanics from registering, Arizona fell subject to it.  It's also why three of the New York City boroughs are subject to preclearance.  The electoral law in 1964 kept many Puerto Ricans who had moved there from voting in New York.

[krazen1211]

Rick Perry is allegedly planning a special session for such redistricting.

A new formula would I suppose have to come from the US congress. In the interim S5 could be voided until such a new formula, if it comes at all.

You just watch the uproar that would come from the Hispanic community if the legislature and governor try to take away their representation(and do it mid-decade at that).  That is what this is, pure and simple. 

The state's map would claim Marc Veasey's district. He is not a Hispanic and defeated a Hispanic in the primary.

[Mr.Phips]

Rick Perry is allegedly planning a special session for such redistricting.

A new formula would I suppose have to come from the US congress. In the interim S5 could be voided until such a new formula, if it comes at all.

You just watch the uproar that would come from the Hispanic community if the legislature and governor try to take away their representation(and do it mid-decade at that).  That is what this is, pure and simple. 

The state's map would claim Marc Veasey's district. He is not a Hispanic and defeated a Hispanic in the primary.

OK, fine, then Democrats can do the same thing in New York by getting rid of Grimm and Gibson easily as payback.  All they need to do is get the independent Dems on board by also redrawing the State Senate map to be safely Dem so they dont even have to worry about being bipartisan anymore. 

[krazen1211]

Rick Perry is allegedly planning a special session for such redistricting.

A new formula would I suppose have to come from the US congress. In the interim S5 could be voided until such a new formula, if it comes at all.

You just watch the uproar that would come from the Hispanic community if the legislature and governor try to take away their representation(and do it mid-decade at that).  That is what this is, pure and simple. 

The state's map would claim Marc Veasey's district. He is not a Hispanic and defeated a Hispanic in the primary.

OK, fine, then Democrats can do the same thing in New York by getting rid of Grimm and Gibson easily as payback.  All they need to do is get the independent Dems on board by also redrawing the State Senate map to be safely Dem so they dont even have to worry about being bipartisan anymore. 

Maybe. But it isn't the GOP taking away Hispanic representation. In 3 such districts in Texas white liberals and black liberals booted them in the primary.

[cinyc]

OK, fine, then Democrats can do the same thing in New York by getting rid of Grimm and Gibson easily as payback.  All they need to do is get the independent Dems on board by also redrawing the State Senate map to be safely Dem so they dont even have to worry about being bipartisan anymore.  

That's not going to happen.  The New York Constitution only calls for state senate districts to be redistricted once and states that they "shall remain unaltered until the first year of the next decade".  Plus, the independent Democrats would rather rule the Senate and have power with the Republicans than be minnows in the shallow pond of Senate Democrats, many of whom are too liberal for the independent Democrats' tastes.   Redrawing the map to give Democrats full control of the Senate would ultimately end up lessening the power held by the independent Democrats, as their votes would not be necessary to maintain power.

[Smid]

One thing I've never understood is why Arizona is required to pre-clear. There are barely any black people there to disenfranchise, and there certainly weren't any when the law was passed. Was there some sort of discrimination against Hispanics going on there?

Yes.  The test for whether a jurisdiction would be subject to preclearance was the percentage of the voting age population that was registered to vote.  With a requirement for English language literacy keeping Hispanics from registering, Arizona fell subject to it.  It's also why three of the New York City boroughs are subject to preclearance.  The electoral law in 1964 kept many Puerto Ricans who had moved there from voting in New York.

That's really interesting! I had no idea!

[Marokai Backbeat]

Horrible justices are horrible.

[Torie]

Muon2 is the expert on this, but section 5 has more bite than just a procedural one. The substantive rules are different than Section 2. Section 5 focuses more on what percentage of a minority group will elect a member of that minority, to wit the "candidate of their choice"  (maybe well below 50% VAP or CVAP if other minorities or whites in practice vote enough for the minority involved), and not regressing from an existing minority percentage in a district. Section 2 just says you need 50% VAP or CVAP of a particular minority depending on the appellate court district (in the 9th circuit zone which includes California it is CVAP), if such a CD can be drawn within one "community of interest," and that is that.

Were there any questions about VAP versus CVAP, or is this case one solely involving Section 5, I wonder?

[Mr.Phips]

OK, fine, then Democrats can do the same thing in New York by getting rid of Grimm and Gibson easily as payback.  All they need to do is get the independent Dems on board by also redrawing the State Senate map to be safely Dem so they dont even have to worry about being bipartisan anymore.  

That's not going to happen.  The New York Constitution only calls for state senate districts to be redistricted once and states that they "shall remain unaltered until the first year of the next decade".  Plus, the independent Democrats would rather rule the Senate and have power with the Republicans than be minnows in the shallow pond of Senate Democrats, many of whom are too liberal for the independent Democrats' tastes.   Redrawing the map to give Democrats full control of the Senate would ultimately end up lessening the power held by the independent Democrats, as their votes would not be necessary to maintain power.

There is clear precedent for doing this.  Republicans did it in NY for the 1970 elections. 

Also, all these independent Democrats need is for someone to warn them that if Republicans were to regain the Senate(possible at this point under these lines), they would throw these independent Democrats out on their a**es and they wouldnt have any power. 

[True Federalist (진정한 연방 주의자)]

Would such a Republican gerrymander even be doable if they had the votes to do it?

[jimrtex]

One thing I've never understood is why Arizona is required to pre-clear. There are barely any black people there to disenfranchise, and there certainly weren't any when the law was passed. Was there some sort of discrimination against Hispanics going on there?

Because Arizona didn't provide election materials in Spanish - even though at the time there was no congressional mandate or court judgments that they were required.   Also the census bureau used different methodologies to estimate the number of Hispanic voters in Arizona, than it did in Nevada

[cinyc]

OK, fine, then Democrats can do the same thing in New York by getting rid of Grimm and Gibson easily as payback.  All they need to do is get the independent Dems on board by also redrawing the State Senate map to be safely Dem so they dont even have to worry about being bipartisan anymore.  

That's not going to happen.  The New York Constitution only calls for state senate districts to be redistricted once and states that they "shall remain unaltered until the first year of the next decade".  Plus, the independent Democrats would rather rule the Senate and have power with the Republicans than be minnows in the shallow pond of Senate Democrats, many of whom are too liberal for the independent Democrats' tastes.   Redrawing the map to give Democrats full control of the Senate would ultimately end up lessening the power held by the independent Democrats, as their votes would not be necessary to maintain power.

There is clear precedent for doing this.  Republicans did it in NY for the 1970 elections. 

Also, all these independent Democrats need is for someone to warn them that if Republicans were to regain the Senate(possible at this point under these lines), they would throw these independent Democrats out on their a**es and they wouldnt have any power. 

I don't think so.  Article III, Section 4 of the New York Constitution can't be clearer.  Once a senate or assembly map is passed by the legislature, it cannot be changed.   Districts "shall remain unaltered until the first year of the next decade as above defined".

The 1960-70 maps were a unique case.  The original 1960s map was thrown out for violating one-man-one-vote.  The 1966-70 map was a court-drawn one, not a legislatively passed map.

The independent Democrats have power now, something they would not have much of if Senate Democrats had a large majority.  So the tradeoff would be lessening the power they actually have now by ceding it to the dysfunctional senate Democrat minority in exchange for being thrown totally out of power when so-called "progressive" Democrats have a large senate majority.  Republicans may or may not get back their majority under the current lines, but the independent Democrats would not be necessary at all under any illegal new Gerrymander to boost Senate Democrats.  The so-called "progressives" would rule both the Senate and Assembly, passing things that the more moderate independent Democrats don't want to be enacted.

[🐒Gods of Prosperity🔱🐲💸]

Once Congress passes a revision to the VRA to use more recent data, I expect Section 5 to be back in business after a brief blip.

That's funny, expecting this Congress to pass something having to do with voting rights.

The VRA is a reasonably popular law and the GOP will not let the Democrats use it as a cudgel to paint them as racist by blocking a fix if the court indicates one can be done.  If the court rules as I expect, that requiring preclearance is fine, but basing the requirement on four decade old data is not, then I expect them to quickly revise section 4 so that instead of using data from 1964, 1968, and 1972, it uses data from 2004, 2008, and 2012.  It's not in the GOP's political interest to block a fix.

Developing a formula from that data could be contentious though, right?  Back in 1965, the formula used seemed to coincide relatively well as a proxy for those places considered most discriminatory anyway.  Now it's less clear which parts of the country are most susceptible to discriminatory practices and whether there is a formula that can reflect it accurately. 

[True Federalist (진정한 연방 주의자)]

Once Congress passes a revision to the VRA to use more recent data, I expect Section 5 to be back in business after a brief blip.

That's funny, expecting this Congress to pass something having to do with voting rights.

The VRA is a reasonably popular law and the GOP will not let the Democrats use it as a cudgel to paint them as racist by blocking a fix if the court indicates one can be done.  If the court rules as I expect, that requiring preclearance is fine, but basing the requirement on four decade old data is not, then I expect them to quickly revise section 4 so that instead of using data from 1964, 1968, and 1972, it uses data from 2004, 2008, and 2012.  It's not in the GOP's political interest to block a fix.

Developing a formula from that data could be contentious though, right?  Back in 1965, the formula used seemed to coincide relatively well as a proxy for those places considered most discriminatory anyway.  Now it's less clear which parts of the country are most susceptible to discriminatory practices and whether there is a formula that can reflect it accurately. 

Yes it would be tricky, and attempting to update the formula when the VRA was up for renewal would have likely left the GOP open to charges of being soft on racism, which is likely why the leadership didn't push for an update then,

[jimrtex]

One thing I've never understood is why Arizona is required to pre-clear. There are barely any black people there to disenfranchise, and there certainly weren't any when the law was passed. Was there some sort of discrimination against Hispanics going on there?

Yes.  The test for whether a jurisdiction would be subject to preclearance was the percentage of the voting age population that was registered to vote.  With a requirement for English language literacy keeping Hispanics from registering, Arizona fell subject to it.  It's also why three of the New York City boroughs are subject to preclearance.  The electoral law in 1964 kept many Puerto Ricans who had moved there from voting in New York.

That's really interesting! I had no idea!

The first element of the test was whether the State had a literacy test which acted as barrier to registration on a certain date.

The second was whether less than 50% of the VAP was registered or voted in the 1964 election.  When the act was extended in 1970, the reference election was updated to 1968.

The four counties in California that are (were) covered all had military bases, and had relatively low populations, such that military personnel were a significant portion of the population.  The military population was transitory, young, and it was DOD policy at the time to encourage military personnel to vote at their home residence.  Fort Ord was in Monterey County (it is closed now).  Most the soldiers were on there way to Vietnam, but whichever were captured on census day were considered to be residents, as were the same number on election day.

The turnout in the four counties ended up slightly below 50%.  Turnout might have been as poor or poorer at the military bases in San Diego, but that didn't count because there was a larger civilian population.

California had a literacy test.  It had already been suspended by the California Supreme Court, and was repealed a few days after the date used in magic formula.  If the literacy test was discriminatory it hurt a lot more voters in other counties of the state - it wasn't the counties administering the test.

Two of the bases have been closed.  Merced spent $1 million over the past 10 years in complying with Section 5, including $350,000 to gain bailout (they had the good sense to seek bailout at a time that Eric Holder wanted to demonstrate that it is workable).

Years later, when Monterey County was trying to create a Hispanic supervisor district in the Salinas Valley, they considered including Fort Ord (because those stationed there didn't vote in local elections) and Soledad Prison (because inmates can't vote) but both would increase the population for redistricting purposes.

New Hampshire coverage is based on towns.  It had a literacy test that was on the book but not used.  When it was discovered that several towns were covered (and neither they nor the State had been seeking preclearance), nobody could figure out why those particular towns failed the 50% participation test.  A few were near Pease AFB, but not all. 

[jimrtex]

Developing a formula from that data could be contentious though, right?  Back in 1965, the formula used seemed to coincide relatively well as a proxy for those places considered most discriminatory anyway.  Now it's less clear which parts of the country are most susceptible to discriminatory practices and whether there is a formula that can reflect it accurately. 

Just look at disparate effect.

Massachusetts has the highest differential between Black and White electoral participation.  You had the incident where a Cambridge policeman clubbed a Harvard professor in his own house, and where a senate candidate was mocked because she was part Native American.

[Brittain33]

Which professor was "clubbed"? I don't recall that.

Which population measure is used for the differential? Is it CVAP?

[Brittain33]

OK, fine, then Democrats can do the same thing in New York by getting rid of Grimm and Gibson easily as payback.  All they need to do is get the independent Dems on board by also redrawing the State Senate map to be safely Dem so they dont even have to worry about being bipartisan anymore.  

That's not going to happen.  The New York Constitution only calls for state senate districts to be redistricted once and states that they "shall remain unaltered until the first year of the next decade".

We went through this in the Virginia thread. Unless the constitution explicitly states "redistricting more than once per decade following the census is expressly forbidden," there is an interpretation that mid-decade redistricting is legal. It is not my interpretation, but the argument has been made that there are loopholes in language like this that otherwise looks clear.

[cinyc]

We went through this in the Virginia thread. Unless the constitution explicitly states "redistricting more than once per decade following the census is expressly forbidden," there is an interpretation that mid-decade redistricting is legal. It is not my interpretation, but the argument has been made that there are loopholes in language like this that otherwise looks clear.

What part of senate districts "shall remain unaltered until the first year of the next decade" is ambiguous?  Once enacted, state senate and assembly district lines can't be changed until the next decade.

[Mr.Phips]

OK, fine, then Democrats can do the same thing in New York by getting rid of Grimm and Gibson easily as payback.  All they need to do is get the independent Dems on board by also redrawing the State Senate map to be safely Dem so they dont even have to worry about being bipartisan anymore.  

That's not going to happen.  The New York Constitution only calls for state senate districts to be redistricted once and states that they "shall remain unaltered until the first year of the next decade".  Plus, the independent Democrats would rather rule the Senate and have power with the Republicans than be minnows in the shallow pond of Senate Democrats, many of whom are too liberal for the independent Democrats' tastes.   Redrawing the map to give Democrats full control of the Senate would ultimately end up lessening the power held by the independent Democrats, as their votes would not be necessary to maintain power.

There is clear precedent for doing this.  Republicans did it in NY for the 1970 elections. 

Also, all these independent Democrats need is for someone to warn them that if Republicans were to regain the Senate(possible at this point under these lines), they would throw these independent Democrats out on their a**es and they wouldnt have any power. 

I don't think so.  Article III, Section 4 of the New York Constitution can't be clearer.  Once a senate or assembly map is passed by the legislature, it cannot be changed.   Districts "shall remain unaltered until the first year of the next decade as above defined".

The 1960-70 maps were a unique case.  The original 1960s map was thrown out for violating one-man-one-vote.  The 1966-70 map was a court-drawn one, not a legislatively passed map.

The independent Democrats have power now, something they would not have much of if Senate Democrats had a large majority.  So the tradeoff would be lessening the power they actually have now by ceding it to the dysfunctional senate Democrat minority in exchange for being thrown totally out of power when so-called "progressive" Democrats have a large senate majority.  Republicans may or may not get back their majority under the current lines, but the independent Democrats would not be necessary at all under any illegal new Gerrymander to boost Senate Democrats.  The so-called "progressives" would rule both the Senate and Assembly, passing things that the more moderate independent Democrats don't want to be enacted.

Well that part of the state constitution was violated in 1970(and 1965), so there is clear precedent there.  This would be no more illegal than what Republicans did when they added a 63rd seat. 

The independent Democrats are actually very liberal on almost every issue and the only reason they are what they are is because they think it will allow them to keep shared power even if Republicans were to regain a narrow majority.  They are wrong and somebody needs to tell them that. 

[jimrtex]

Which professor was "clubbed"? I don't recall that.

Which population measure is used for the differential? Is it CVAP?

Henry Louis Gates

CVAP - it's from the Current Population Survey - which includes voting questions following each even-year November election.

Voting and Registration in the Election of November 2010 - Detailed Tables

Here is an update coverage formula:

If a racial or ethnic minority that constituted 3% or more of the population, had registration or voting in the 2010 election that was 5% or more below that for non-Hispanic whites, it is covered.

States that are not covered:

Southern states where black participation is comparable to white participation.
AL, LA, MS, SC, TN

Midwestern states where black participation is comparable to white participation
IN, MO, OH

State where AIAN participation is comparable to white participation
ND

States with no significant non-white population.
IA, ME, NH, VT

Covered:
AK: B(lack), H(ispanic), AIAN
AZ: B H
AR: B
CA: B H A(sian)
CO: B H
CT: B H
DE: B H
DC: B H
FL: H
GA: H
HI: B H NHAOPI
ID: H AIAN
IL: A H
KS: B H AIAN
KY: B
MD: A H
MA: B A H
MI: B
MN: B
MT: AIAN
NE: H
NV: B A H
NJ: A H
NM: H AIAN
NY: B A H
NC: B H
OK: B H AIAN
OR: H
PA: H
RI: B H
SD: AIAN
TX: B A H
UT: H O(ther)
VA: B A H
WA: B A H O
WV: B
WI: B
WY: H AIAN

Formula used White non-Hispanic alone; Black alone; Asian alone; Hispanic (of any race), so Black Hispanic, and Asian Hispanic are counted in two groups.

The Census Bureau does not break out AIAN, NHAOPI, and Other racial categories.   I subtracted from Total, the White non-Hispanic alone, Black alone, Asian alone, and Hispanic (of any race) to get an "Other" population.  This resulted in a double exclusion of non-White Hispanics (New York ended up with a negative value because of the relatively large number of Puerto Ricans and naturalized Dominicans who also identify as Black.  I generally characterized this population as AIAN: AK AZ ID KS MT NM ND OK SD WY.  HI was classified as NHAOPI, NC as a mixture of AIAN and multi-racial; and NV, UT, and WA as a combination of AIAN and NHAOPI.   Because of the methodology these numbers are statistically unreliable.

[jimrtex]

One thing I've never understood is why Arizona is required to pre-clear. There are barely any black people there to disenfranchise, and there certainly weren't any when the law was passed. Was there some sort of discrimination against Hispanics going on there?

Yes.  The test for whether a jurisdiction would be subject to preclearance was the percentage of the voting age population that was registered to vote.  With a requirement for English language literacy keeping Hispanics from registering, Arizona fell subject to it.  It's also why three of the New York City boroughs are subject to preclearance.  The electoral law in 1964 kept many Puerto Ricans who had moved there from voting in New York.

That is not what happened.  The fact that Arizona did not provide voting materials in Spanish was the test, along with 5% or more of the population being Hispanic, and less than 50% of the CVAP voting.    Basically, they wanted to include Texas, and Texas didn't have a literacy test, so they had to invent a test that Texas would fail.

[Queen Mum Inks.LWC]

You can't predict SCOTUS cases based on the questions asked.

[True Federalist (진정한 연방 주의자)]

You can't predict SCOTUS cases based on the questions asked.

All the questions did was confirm that a majority of the court hadn't changed their mind since Northwest Austin.  The court made it clear then that they were troubled by the basis used to determine which jurisdictions would be subjected to preclearance, but they found a procedural out so as to avoid a period of time in which preclearance would not be required and warned Congress to mend its ways and update the VRA to use relevant data.

[politicallefty]

To me, it seems like the VRA is entirely consistent with the Constitution, as read through the 15th Amendment. As it states: "The Congress shall have power to enforce this article by appropriate legislation." This should easily afford Congress broad latitude to pass laws relating to the first section of the amendment (i.e. race and color). Without preclearance, it's almost a guarantee that several states will go back to the whack-a-mole strategy of the pre-VRA era.

It'd be far easier for the Court to reject this suit considering that Shelby County, Alabama is not the proper plaintiff. As it was mentioned during oral arguments, even the most basic regulations would take in Alabama (and most definitely Shelby County). If Section 5 is to survive this case intact, I could possibly see Justice Kennedy taking that route. It seems like he's uncomfortable with Section 5, but perhaps not enough so to essentially eradicate it.