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

[Torie]

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 one can, it does (a “Gingles Trigger District”).

5. If a Gingles Trigger District can be drawn, it is not necessary to 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,  a VRA Compliant District cannot be 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, are 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.

[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?

[Torie]

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.

[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?

[Torie]

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.

[Torie]

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?

If so proved, absolutely. But the best proof would be in a safe Dem district, to have a Dem primary, black versus white, where with the whites being say 60% of the vote, and the blacks 40%, the black won, with the vast majority of the blacks voting for the black. (A district in the subject area with both 40% or more blacks, and a large number of white liberal Dems, cannot be other than a safe Dem CD.) Or the incidence of whites voting for a black Dem over a white Pub in statewide or other past elections.

[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?

[Adam Griffin]

Good criteria to post.

One thing I may have missed but otherwise have seen countless times improperly used that is worth mentioning: "plurality/majority-minority" districts (in situations where the majority is comprised of multiple ethnic or racial groups; say, a 35% Black, 15% Latino, 10% Asian CVAP district) are not protected under Gingles if it cannot be proven that these multiple groups are effectively a single cohesive or interconnected cultural bloc beyond simple primary and/or GE voting patterns and contrasting with white voting patterns.

Perhaps I'm missing the finer points here or am completely wrong in my description: if so, please clarify!

[President Punxsutawney Phil]

Good criteria to post.

One thing I may have missed but otherwise have seen countless times improperly used that is worth mentioning: "plurality/majority-minority" districts (in situations where the majority is comprised of multiple ethnic or racial groups; say, a 35% Black, 15% Latino, 10% Asian CVAP district) are not protected under Gingles if it cannot be proven that these multiple groups are effectively a single cohesive or interconnected cultural bloc beyond simple primary and/or GE voting patterns and contrasting with white voting patterns.

Perhaps I'm missing the finer points here or am completely wrong in my description: if so, please clarify!

I believe you are talking about "minority coalition districts"? Yes, they can be dismantled (see: Chris Bell's seat in the 2003 redistricting). They can be drawn, and that is a public policy decision whether or not one decides to or refuses to, but it's clear they don't have quite the level of protection a typical VRA seat has.

[Torie]

Good criteria to post.

One thing I may have missed but otherwise have seen countless times improperly used that is worth mentioning: "plurality/majority-minority" districts (in situations where the majority is comprised of multiple ethnic or racial groups; say, a 35% Black, 15% Latino, 10% Asian CVAP district) are not protected under Gingles if it cannot be proven that these multiple groups are effectively a single cohesive or interconnected cultural bloc beyond simple primary and/or GE voting patterns and contrasting with white voting patterns.

Perhaps I'm missing the finer points here or am completely wrong in my description: if so, please clarify!

Actually there is no legal traction to the minority coalition concept at all. Gingles focuses on a single minority, and either as a cohesive voting block, that minority can elect a candidate of its choice or not. Justice Kennedy hated the minority coalition concept. I remember him saying that in some context, presumably in a recording of oral argument.

[Torie]

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?

Not totally sure about this one, but I don't think a court has held that you need to take into account differential turnouts of otherwise eligible voters. But I know it is in play, or at least was. Team Elias/Holder/Etc. were/are bitching about TX-23 being deemed a legal VRA district by virtue of counting rural Hispanics who don't show up to vote absent free beer (just kidding about the beer bit), and thus the CD should take in more voting urban Hispanics who just happen to be San Antonio Democrats. I don't think that line of attack is going to induce SCOTUS to hop into bed with them on that one.

Muon2 might know more if he notices this thread and is tempted to enter the fray.

[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?

[Torie]

No, I don't think a compact 50% CVAP minority district that is not performing because of a failure to turn out and vote, or a lack of cohesive voting, can be characterized as violating the VRA.