Tuesday, June 25, 2013

"We issue no holding on §5 itself, only on the coverage formula." Shelby County and Alaska Redistricting

If you eliminate all the argument and get to the nitty gritty of the this morning's Supreme Court decision on the Voting Rights Act (Shelby County v Holder) , it's this, from the end of the opinion:
"Our decision in no way affects the permanent, nation- wide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequi- site to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” Presley, 502 U. S., at 500–501. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.The judgment of the Court of Appeals is reversed."


Meaning of Section 2 - Section 2 prohibits discrimination in voting practices (from the Department of Justice (DOJ)):
Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups identified in Section 4(f)(2) of the Act. Most of the cases arising under Section 2 since its enactment involved challenges to at-large election schemes, but the section's prohibition against discrimination in voting applies nationwide to any voting standard, practice, or procedure that results in the denial or abridgement of the right of any citizen to vote on account of race, color, or membership in a language minority group. Section 2 is permanent and has no expiration date as do certain other provisions of the Voting Rights Act. [emphasis added]
Meaning of Section 5 - Section 5 requires pre-clearance for election law and procedure changes in states that have a history of discrimination (from DOJ):
Section 5 freezes election practices or procedures in certain states until the new procedures have been subjected to review, either after an administrative review by the United States Attorney General, or after a lawsuit before the United States District Court for the District of Columbia. This means that voting changes incovered jurisdictions may not be used until that review has been obtained.
The section of the Voting Rights Act the Court struck down was Section 4 - this section sets the criteria that determine which states are required to get pre-clearance.   Again from DOJ:

Section 4 of the Voting Rights Act

When Congress enacted the Voting Rights Act of 1965, it determined that racial discrimination in voting had been more prevalent in certain areas of the country. Section 4(a) of the Act established a formula to identify those areas and to provide for more stringent remedies where appropriate. The first of these targeted remedies was a five-year suspension of "a test or device," such as a literacy test as a prerequisite to register to vote. The second was the requirement for review, under Section 5, of any change affecting voting made by a covered area either by the United States District Court for the District of Columbia or by the Attorney General. The third was the ability of the Attorney General to certify that specified jurisdictions also required the appointment of federal examiners. These examiners would prepare and forward lists of persons qualified to vote. The final remedy under the special provisions is the authority of the Attorney General to send federal observers to those jurisdictions that have been certified for federal examiners.
This part on minority language groups particularly applies to Alaska:
Section 4 also contains several other provisions, such as Section 4(e) and Section 4(f), that guarantee the right to register and vote to those with limited English proficiency. Section 4(e) provides that the right to register and vote may not be denied to those individuals who have completed the sixth grade in a public school, such as those in Puerto Rico, where the predominant classroom language is a language other than English. In Section 4(f), the Act addresses the ability of those persons who are members of language minority groups identified in Section 4(f)(2), to register and vote as well as to get information relating to the electoral process in a manner that will ensure their meaningful participation in the electoral process. The Department has embarked on a vigorous program to enforce the Act's language minority provisions.


As the Alaska Redistricting Board gets close to wrapping up its second 2010 redistricting plan (the first was rejected by the Alaska Supreme Court), there are two key sets of standards (beyond the basic US Constitutional requirements of one person- one vote, etc.)  that have been required:
  • The Alaska Constitution
  • The US Voting Rights Act
The Alaska Supreme Court has required the Board to first develop a map that meets the requirements of the Alaska Constitution and then second adjust those maps to meet the Voting Rights Act.

The Board has adopted seven optional plans that they believe conform with the Alaska Constitution and will have public hearings in Anchorage (Friday June 28), Fairbanks (July 1), and Juneau (July 2).

The US Supreme Court decision today on the Shelby County case, as I understand it, does not invalidate Section 5 of the Voting Rights Act or Section 2.  But, by invalidating the formula used in Section 4 to determine which states would be required, in Section 5, to have their plan pre-cleared by the DOJ, it effectively makes Section 5 moot until there are new criteria in Section 4.  


1.  The Board still needs to meet the standards of Section 2
2.  But they do not need to get pre-clearance

So, the Board's plan:
1.  Must comply with Section 2 of the Voting Rights Act
2.  Does not need to be pre-cleared by the Department of Justice

What Does Comply With Section 2 of the Voting Rights Act Mean?

This is the tricky question I've been trying to figure out for the last couple of weeks.

What seems to be clear is that Section 2 requires proof of intent of discrimination while Section 5 only requires proof of discriminatory effect.  Exactly what that means for the Board is not clear to me.  Proving intent, obviously is much harder than proving effect.  And because Section 5's pre-clearance required scrutiny before a voting process change could go into effect, it means that violations will be dealt with after the fact.  Meaning after an election.  And the candidates who win because of later demonstrated voter repression will still be in office and making laws.  (I think.)

When I talked to Michael White (the Board's attorney) last week about what this would mean, he said (at least this is what I heard him say) that Section 2 requirements mean that the new plan must preserve the same number of  Native Districts with 50% or more Native population.  Section 5 required, additionally, those with lower Native districts to also be preserved.  He thought the Board  would be required to preserve three of four Native House districts (and two Senate districts). But I can't find language that does explains that.  And, in fact, the Board had to hire a Voting Rights Expert to help them understand exactly how many districts they needed to preserve and how to determine if they met the standards.  The actual rules tend to be pretty fluid and this ruling is going to cause me to mix metaphors here if I'm not careful.  DOJ does prosecute based on 

The Board had worked very hard to not have 'retrogression' in its plan.  Retrogression means that there are fewer Native districts than in the previous (2000 Census based) plan.  If I recall, that originally meant nine Native districts.  Because of changes in how DOJ determined Native Districts, the Southeast Native District was no longer viable.

Pulling up the the old maps and population statistics from the Alaska Redistricting Board's website is difficult to impossible because much of that is no longer there.  However, they are still somewhere and the links from my old posts do still get to some maps and stats.

This map (below) is I'm 90% sure,  the Amended Proclamation Plan adopted April 5, 2012 and used as the Interim Plan (with later changes to Southeast.)   I'm using this to show the Native District implications.

White believed - he wasn't certain - that Districts 36, 39, and 40 - were the three with over 50% Native population that would have to be preserved as Native Districts, that the three all had over 70% Native population.

As I pulled up the Population Statistics chart that was also from the April 5, 2012 meeting, I found that there were two more districts with over 50% Native population.  The chart below shows that districts 37 and 38 have 51% and 52% respectively.

One problem for the Board all along was that these districts are relatively isolated.  In a sense, one could argue that all the Alaska Natives are 'packed' into a few districts, leaving other districts with a lower percent of Natives in other districts, thus diluting their voting strength.  But these districts are geographically isolated and in areas with low population density making it more difficult to get contiguous, compact districts of 17,755 people (the state population divided by 40 districts).


The Board will have its public hearings this week and next and then on July 12 they will meet and select a plan that meets the Alaska Constitutional requirements.  Because they are no longer required to get pre-clearance from the Department of Justice, they will proclaim that as the new plan.

However, they are still required to comply with Section 2 of the Voting Rights Act and if they diminish the voting power of Alaska Natives, there is sure to be a law suit filed.  At this point, I just don't understand exactly what standards the Court will use to determine if they comply with Section 2 of the Voting Rights Act or not.

As I find out more, I'll let you know.

Meanwhile, if you want to look at the Options the Board is taking to the Public Hearings Friday, Monday, and Tuesday, go to the Board's website.    News and Updates has all the plans - maps and data.  On the right you can get the details for the meetings - Anchorage, Fairbanks, and Juneau.

If you want to compare the new options to the existing Interim plan you can go to my post of April 5, 2012.  There I have links to the statewide map (the one posted above) and to each of the district maps and the population stats (also posted above in this post.)

HOWEVER - Southeast Alaska's districts were changed and you can see those changed districts here.

If you haven't notice, at the top of the blog (under the orange header) is a tab for the Alaska Redistricting Board.  It has a list - in chronological order - of all my posts on the redistricting board with a brief description of each post.  Or you can get to it here.

1 comment:

  1. Thank for this review and analysis, Steve. And today, the last three decisions.


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