Rep. Edward Lindsey, an attorney, is regarded as one of the smartest guys in the House. He’s released an e-Newsletter this weekend covering the legal talking points on the House redistricting map that passed this week. I don’t normally copy/paste things to PeachPundit, but this is essential reading for those who want more than a 30,000-foot aerial view of redistricting.
By Representative Edward Lindsey, Georgia House Majority Whip:
1. Does the Redistricting Plan for the Georgia House of Representatives (HB 1EX) violate the Federal Voting Rights Act (VRA)? No
“The redistricting plan passed by the Georgia House on August 18, 2011, was created in accordance with guidelines issued by President Obama’s Justice Department and creates 49 African American “majority-minority” districts, which are the same number that exist at the present time. This will keep us in full compliance with the VRA. In addition, we will have for the first time a Hispanic Majority Minority district.
By contrast, the alternative proposal presented to the House Reapportionment Committee by the Democratic Party through its caucus leadership on August 16, 2011 only maintained 43 African American “majority-minority” districts according to the testimony of the House Minority Leader. If true, their plan is likely retrogressive and in violation of Section 5 of the VRA. Furthermore, the alternative plan created by the Democratic Party has four districts with African American populations that are 80+%. This would also likely be considered unlawful packing under the VRA.
What legal rationale has the Democratic Party tried to use to justify its proposal and attack the plan passed by the Georgia House? It argues that the state of Georgia should move away from protecting “majority minority” districts and instead create more “cross-over districts” in order to comply with the VRA.
A “cross-over district” is a somewhat nebulous term defined as a district in which minority voters make up less than a majority of the voting-age population, but the minority population is potentially large enough to elect the candidate of its choice with help from majority voters who cross over to support the minority’s preferred candidate. How you prove this has occurred, however, is not clear and that is why such districts have been rejected as a legitimate barometer under the VRA both statutorily and in court decisions.
In the U.S. Supreme Court decision Ashcroft v. Georgia (2003), Justice O’Connor allowed using such districts in analyzing compliance under section 5 of the VRA, but did not mandate their consideration in drawing new districts. However, in the 2006 reauthorization of the VRA, the U.S. Congress amended Section 5 in order to legislatively overrule Ashcroft in regards to permitting consideration of cross-over districts. The legislative history contains the following statement from the House Judiciary Committee: “the committee makes clear that Congress explicitly rejects all that logically follows from Justice O’Connor’s statement; [that “cross-over districts” can be utilized in determining compliance under Section 5 of the VRA].
The Supreme Court returned to the issue of “cross-over districts” in the case of Bartlett v. Strickland (2009). This time the court looked at whether it could consider such districts when considering possible violations under Section 2 of the VRA. Justice Kennedy in Bartlett decided against expanding consideration under the act to include such districts. He reasoned that to do so “would require courts to make complex political predictions and tie them to race-based assumptions.”
Given the clear law to the contrary, why would the Democratic Party nevertheless argue for use of “cross –over districts” under the VRA? Simply put, it is desperate to cling to any rationale in order to protect the seats of its incumbents in areas that have lost population in the past ten years.
Of the 20 smallest districts in Georgia, measured by population, 19 of them are presently held by members of the Democratic Party.
By contrast, of the 10 largest districts in Georgia, measured by population, all of them are held by members of the Republican Party. This will naturally lead to a migration of districts to the areas of growth in Georgia –which is away from the Democratic Party’s historical geographic strongholds.
2. Does the redistricting plan passed by the Georgia House (HB 1EX) unduly pair existing Democratic House Representatives? No
All total, 10 Democratic Representatives inside the perimeter (I-285) of metro Atlanta and two in rural east Georgia have been paired and will have to run against each other in Democratic primaries next summer. The reason is simple. According to the census numbers gathered in 2010, 8 of the 10 smallest State House districts by population were Democratic seats inside the I-285 perimeter in Metro Atlanta. Many more Democratic seats in this urban area were also in the bottom twenty five in population. In addition, Democratic districts in east Georgia also lost significant numbers of residents.
Under the guiding principle of one person, one vote, if an area loses population it loses seats. This is not partisan. This is not personal. This is simple math. In fact, the same thing is happening under the passed redistricting plan in rural South Georgia where 8 Republican legislators are being paired because of a loss of population in their area.
In contrast to the redistricting plan passed by the House, it is interesting to look at the alternative redistricting proposal submitted by the Democratic Party at the House Reapportionment Committee on August 16, 2011. By gerrymandering and slicing up suburban Republican areas, it found a way to protect its members and instead pair 16 Republicans and only one Democrat. The Republicans paired were Chairman Joe Wilkinson, Chairman Sharon Cooper, Speaker Pro Tem Jan Jones, Chairman Mark Hamilton, Chairman Mike Jacobs, Chairman Ben Harbin, Rep. Barbara Sims, Rep. Jason Shaw, Governor’s Floor Leader Rep. Amy Carter, Chairman Penny Houston, Rep. Darlene Taylor, Chairman Jay Powell, Rep. Delvis Dutton, Chairman Greg Morris, Rep. Bob Hanner, and Rep. Mike Cheokes. Only Democrat Elena Parent faced a pairing.
It should be of little surprise that the Democratic Party took this path in 2011. It similarly paired 37 Republicans and only 9 Democrats in its redistricting plan in 2001.
3. Does the redistricting plan passed by the Georgia House (HB 1EX) have unduly odd shapes and destroy communities of interest? No
Nevertheless, a mathematical analysis of the passed plan and Democratic alternative proposal was done using a well established formula called the “Polsby-Popper Test” The analysis is intended to determine the overall compactness of all drawn districts in a state’s redistricting map. The resulting measurements were virtually identical for each map, with the district map passed by the Georgia House being slightly better but only by a .001 margin.
Furthermore, with regards to splitting counties, the passed redistricting plan splits fifteen fewer counties than the Democratic Party’s alternative proposal and five fewer than the map drawn by the Federal Court for Georgia in 2004.