The Voting Rights Act, Helping the Minority Party, and Harming the Majority Party

August 1st, 2013

One aspect of the Voting Rights Act that always confused me is how courts are to distinguish between efforts to dilute the votes of minorities who happen to be Democrats, and efforts to dilute the votes of Democrats who happen to be minorities. Of course, if there is intentional evidence that laws were passed with the aim of harming African Americans or Hispanics, that would seem to be an easy call. The tougher calls involve cases where policies are adopted, which on their face seem race neutral, but have a disparate impact on minorities.

What makes these cases harder to decide, in my mind at least, is that the majority party has every incentive to structure voting laws so the minority party has a harder time reclaiming power. Now I don’t use the phrases “majority” and “minority” to address race. To use Texas as an example, Republicans (the party in power) have every incentive to structure voting laws to make it harder for the Democrats to gain power, and for Texas to become blue. Putting aside issues of race (for the moment), that aim would seem unsavory, but politics as usual. Since the days of Elbridge Gerry, the party in power has drawn district lines in ways to preserve their power. There is nothing new about that. To the victors go the spoils.

Before Shelby County, in states throughout the north, the majority party was able to redraw districts to preserve their majority. For example, I lived in Jack Mutha’s district in Pennslyvania for 2 years. That geographically grotesque district was drawn to eliminate any possible Republican opposition. I seem to recall that it resembled a barbell, with a snaking line between the two endpoints. And because it was in Pennsylvania, not subject to Section 4 of VRA, the districts were not subject to pre-approval in Washington. Now I do not endorse the type of electoral chicanery that goes on in local politics, but I understand that it’s part of the game. After Pennsylvania went red in 2010, the district was redrawn, and his successor narrowly won re-election. But if the same political chicanery happened in Texas, the tenor of the discussion would be totally different. And perhaps that difference is warranted, in light of Texas’s sordid history on race (a history Pennsylvania, and most other states lack).

Efforts to dilute Democratic votes in Texas–standard fare in other states–can be viewed as efforts to dilute Hispanic and African American votes. Even in the absence of any evidence of the latter (evidence that may exist–I haven’t read through the records closely),  changes for the former will still be tainted, in light of Texas’s history. In DOJ’s section 3 brief, the AG referenced Texas’s history going back to Reconstruction.

And this isn’t limited to drawing districts.  I personally think Voter ID laws are unnecessary, and combat a problem that isn’t important enough to warrant such restrictions. They are, realistically speaking, laws passed by Republicans as a way to dilute the votes of certain people–more likely than not, Democrats. I don’t like them. Yet, the Supreme Court, per Justice Stevens no less, upheld a voter ID law in Indiana, stating that the state had a “valid interest” in deterring fraud. These are the types of decisions local governments can make, even if they (intentionally) harm the party out of power. Because Indiana lacked this sordid history, they weren’t subject to VRA.

That brings me to my conundrum.  Are Texas Republicans not allowed to engage in the same kind of political chicanery that incumbent parties in other states do? Putting aside the Chief Justice’s “times have changed” theme, the short answer is, that the Voting Rights Act, as construed by DOJ, would not allow this to happen. Ever. Any efforts to redraw lines or pass laws that maximize Republican voters can be seen as another chapter in a long train of racial discrimination.

Texas Attorney General, and Gubernatorial Candidate, Greg Abbott penned an Op-Ed in the Washington Times. It is mostly full of talking points, which I do not find helpful, but one sentence stuck out:

“Behind the empty allegations of racial discrimination lies one goal — helping Democrats in 2014.”

Denying Republicans the ability to engage in the types of gerrymandering that is standard political fare in many other states has one unavoidable consequence. Helping Democrats.

Now you may argue that the Republicans don’t need help in Texas (a huge majority), or that the Democrats do need the help (turn Texas Blue!), or even that Texas’s history taints anything they do. But none of those objections eliminates the fact that only one political party stands to benefit. In fact, several of the parties joined in the litigation in San Antonio are Democratic legislators, whose seats would otherwise be eliminated (I understand Wendy Davis is one of them).

I’ll be on Houston NPR on Friday at noon, on Houston Matters, talking about Texas and Voting Rights. I hope to bring some of these issues up.