Takeaways on redistricting

[muon2]

I wrapped up three days of a virtual conference on redistricting sponsored by the National Conference of State Legislatures. It was packed full of insightful comments by top lawyers and academicians in the field. Here are some of the key areas and their thoughts. I took a lot of notes and can answer more detailed questions, even in other topical areas if they were covered.

Census
The timing of the redistricting data from the 2020 Census is contingent on the release of the apportionment data, so no date is available. The Census has statutory mandates both for the timing of the data release, but also for a complete and accurate count. It will continue to balance those mandates.

The delayed release will bump into many state deadlines. Some states will change statutes, some will have special sessions, and some will seek court permission to postpone constitutional deadlines (CA already has).

Use of data other than the 2020 Census data (eg. ACS 2018) to draw the map will invite litigation, though that data can be used to create maps that can be starting points once the actual data is released.

Differential Privacy is a new technique in the 2020 Census to smear data so that computer hackers can't reverse engineer individuals' profiles from the block data. It also makes counts and demographics less accurate and may lead to legal challenges around population equality and minority voting rights.

The Census will release 2019 CVAP data for 2010 geography in the next month or so. It will release 2020 CVAP data to match the redistricting data and geography after the redistricting data is released.

Voting Rights
Strict racial or ethnic thresholds cannot be used to justify districts. Any district required by the VRA must use election data to show that the district can perform to elect the candidate of choice of the minority.

Map makers should use neutral principles to the extent possible and use race in the least disruptive way to those principles, consistent with requirements of the VRA. The VRA is not a crutch to gerrymander districts.

There may be new challenges that relate to areas where two different minorities are in the same geography, but favor different candidates of choice. Primary election data will be more important in this cycle.

It has long been known that the Census isn't 100% accurate since it has to impute some of the data, so experts have understood exact equality to be a bit of a legal fiction. Due to Differential Privacy that expectation of exact equality will be even more suspect, so there may be new challenges to the meaning of one-man-one-vote based on that.

Partisan gerrymandering will still be challenged but it will be in state courts. States with an explicit "free and fair" election clause in their constitutions are ones where those challenges are most likely to succeed (as in PA and NC).

[Torie]

Speaking of hacking, I wished I had hacked into the conference. I'm jealous!

1. "There may be new challenges that relate to areas where two different minorities are in the same geography, but favor different candidates of choice. Primary election data will be more important in this cycle."

Is this meant to imply that one needs to determine if the two minorities are "friends" or "enemies," and if friends that then you can aggregate to trigger the VRA? If so, is this based on speculation of the legal future or actual case law? Is it further meant to imply that if Hispanic CVAP's don't  vote relatively speaking, that there is no safe harbor for a district that is 50% HCVAP, due to poor turnout, such that it  elects a white or a black, if a CD with a higher HCVAP that would make it performing, is available that is not unduly erose?

2. "Due to Differential Privacy that expectation of exact equality will be even more suspect, so there may be new challenges to the meaning of one-man-one-vote based on that."

How does this smudging or Differential Privacy work exactly, and how was individual privacy compromised using block data (other than blocks with very few people)"

3. "Partisan gerrymandering will still be challenged but it will be in state courts. States with an explicit "free and fair" election clause in their constitutions are ones where those challenges are most likely to succeed (as in PA and NC)."

Is the "but" word you used meant to imply that there is some  change in the law?

4. "Map makers should use neutral principles to the extent possible and use race in the least disruptive way to those principles, consistent with requirements of the VRA. The VRA is not a crutch to gerrymander districts."

Again, is the above meant to convey speculation as to the evolution of the law, or is it based on something more than the stricture that one cannot, using the VRA as a shield, go over 50% CVAP, pursuant to making an erose performing minority district that, absent the VRA would be illegal, where there is a non erose one available to draw.

In its essence, my understanding of the VRA law, after wading through all the sound and fury, is that aside from other anti gerrymandering laws, you can draw any minority CD you want no matter how erose provided it does not go over 50% CVAP (except maybe if it contains two very separated minority areas such as Yuma and Tucson, or Austin and the Rio Grande Valley), and must draw a performing minority CD (two minorities cannot be aggregated), if it can be drawn compactly with a 50% or more CVAP, and may not gerrymander to go over 50% CVAP if a non gerrymandered version is available that reaches 50% CVAP, and of course may go lower than 50% CVAP, provided it is performing.  Are there more lawyers to the onion now, or ones that I have missed in the past?

And that is all I have at the moment. Thank you Muon2.