Monkey-brained Musings

Friday, December 02, 2005
Justice Attorneys Found Texas Redistricting Discriminatory

The Washington Post has reported that Justice Department attorneys found that Texas' mid-decade redistricting plan violated the Voting Rights Act but that the decision was overruled by senior officals in the Justice Department.

The memo, unanimously endorsed by six lawyers and two analysts in the department's voting section, said the redistricting plan illegally diluted black and Hispanic voting power in two congressional districts. It also said the plan eliminated several other districts in which minorities had a substantial, though not necessarily decisive, influence in elections.

"The State of Texas has not met its burden in showing that the proposed congressional redistricting plan does not have a discriminatory effect," the memo concluded.

The memo also found that Republican lawmakers and state officials who helped craft the proposal were aware it posed a high risk of being ruled discriminatory compared with other options.

. . .

The complexity of the arguments surrounding the Voting Rights Act is evident in the Justice Department memo, which focused particular attention on seats held in 2003 by a white Democrat, Martin Frost, and a Hispanic Republican, Henry Bonilla.

Voting data showed that Frost commanded great support from minority constituents, while Bonilla had relatively little support from Hispanics. The question to be considered by Justice Department lawyers was whether the new map was "retrogressive," because it diluted the power of minority voters to elect their candidate of choice. Under the adopted Texas plan, Frost's congressional district was dismantled, while the proportion of Hispanics in Bonilla's district dropped significantly. Those losses to black and Hispanic voters were not offset by other gains, the memo said.

"This result quite plainly indicates a reduction in minority voting strength," [Joseph] Rich [then head of the DOJ voting section] wrote in his concurring opinion. "The state's argument that it has increased minority voting strength . . . simply does not stand up under careful analysis."

The Quorum Report reports Frost as saying that the memo proves the Justice Department today is corrupt in ways that it was not under the first President Bush.

The impact to CD 10 finally gets its due. The December 12, 2003, DOJ memo (pdf) found that CD 10 was an "influence district" that would be obliterated under the proposed redistring plan:

We have also carefully considered the second and third prongs of the George [v. Ashcroft, 123 S. Ct. 2498 (2003)] decision. In part (b) below, we adress the factors making up the second prong of the Georgia totality of circumstances analysis. We first consider the proposed plan's impact on influence districts. Our review shows that there has been a net reduction of two influence districts in the proposed plan. We view Benchmark 9 and 10 as influence districts, which have been eliminated in the proposed plan, and no new influence districts are created. (p. 32) (emphasis added).

. . .

The state's submission does not acknowledge Benchmark 10 as a district - either a safe, conditional or influence district - which should play any role in the determination of minority voting strength. Dr. Gaddie indicates that the state does not view this district as falling within any of the categories set forth by the Supreme Court in Georgia as deserving of Section 5 protection.

According to Dr. Gaddie, Benchmark 10 is a Democratic district in which the overwhelming Anglo voting participation in both the Democratic primary and the general election dominates any substantial effect minority voting power might have on elections. The statistical analyses submitted by the state seems to bear this out, indicating that Anglo participation in the Democratic primary is around 70 percent since 1996 and that Anglo participation in the general elections since 1996 has been between 85 and 92 percent.

Our analysis of Benchmark 10 indicates that the state's submission presented an accurate picture of the voting patterns in the district. It is clear that the winners in the general election contests in the district are Democratic and that the majority of the support for these candidates is from white voters. Because minority voters in Benchmark 10 are predominately Democrats and vote Democratic in general elections, minority-preferred candidates are being elected in general elections.

To get a better picture of minority voting strength in Benchmark 10, we analyzed several Democratic primary elections between 1996 and 2002. Comparing primarily Hispanic voter registration numbers against all other voters, we found that while Hispanic voters provide overwhelming support to Hispanic candidates, they cannot control the primary. Hispanics in general did not vote for black candidates and a combined minority population in the district could not elect a candidate of choice against an Anglo candidate. In sum, Hispanic-preferred candidates won only when they were the preferred candidates of non-Hispanics, most of whom were white. Thus, although Benchmark 10 is a strong Democratic district, minority voters appeared to have little impact on who is selected to run as Democratic candidates.

On the other side of the statistical analysis is the extensive anecdotal information we have gathered which paints Benchmark 10 as a district where minority voters can form a coalition with each other and with Anglo voters to elect a candidate of choice. As indicated above, the clear and consistent message from persons we have talked to is that Benchmark 10 is a unique district where coalitions have been formed and minority voters play an important part in the voting calculus for the district. Incumbent Rep. Lloyd Doggett is universally viewed as a candidate of choice of the minority community and statistical analysis bears this out. As has been commented on time and again, Rep. Doggett is more than willing to take the interests of his minority constituents into account. His responsiveness to such interests is and has been very high. In addition to receiving high marks from minority groups on his votes in Congress, comments we have received have been uniform that Rep. Doggett pays close attention to the needs of the minority communities in his district and acts accordingly.

In Georgia, the Supreme Court stated that, in making a Section 5 retrogression determination, "a court must examine whether a new plan adds or subtracts 'influence districts' - where minority voters may not be able to elect a candidate of choice, but can play a substantial, if not decisive, role in the electoral process." Georgia, 123 S. Ct. at 2502. The Court goes on to say that "[i]n assessing the comparative weight of these influence districts, it is important to consider 'the likelihood that candidates elected without decisive minority support would be willing to take the minority's interests into account." Ibid. (internal citation omitted).

Benchmark 10 appears to be the very type of district envisioned by the Court as an "influence" district. As our analysis demonstrates, the minority population in the district is not capable in and of itself of electing a candidate of choice. The black and Hispanic populations there, although totaling 39.2 percent VAP and 33.3 percent CVAP in the benchmark district, do not control the primary election separately or combined. Nevertheless, these populations vote almost unanimously for the incumbent white Democrat. With the combined Benchmark 10 minority population as high as it is, this vote contributes substantially to Doggett's ability to be elected. Minority influence appears to be reflected in Doggett's responsiveness to minority concerns. Moreover, unlike in the other alleged influence districts analyzed elsewhere, the Democratic performance numbers for Benchmark 10 are and have been very high. This is one of the factors viewed as important by the Ashcroft court in determining the influence of minority groups in a district.

In sum, although the minority population in Benchmark 10 does not appear able to alone elect candidates of choice or to control the primary elections, their substantial population numbers, coupled with the ability to form coalitions with other groups in the district, render them an influence in the district. Under the Georgia rubric, we would label this district as an influence district, albeit a weak one. As indicated above, the proposed plan effectively dismantles Benchmark 10 from a minority population and Democratic performance point of view, thus removing any minority influence Benchmark 10 possessed. (p. 57-58) (emphasis added)

Off the Kuff offers a detailed analysis of the memo.


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The scattered musings of Jeb Boyt, Austin Texas. A collection of the random bits that scamper through my monkey brain. This blog is my personal record. The opinions expressed here are my own and are in no way associated with any employer, board, commission, organization, or other entity that I may be affiliated with. So there.

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