Act ruling could help DemocratsHigh court lifted requirement of federal pre-approval for election law changes
By Jeremy Duda
The Daily Record Newswire
PHOENIX, AZ - The U.S. Supreme Court's decision to lift the requirement that Arizona and other states get federal pre-approval for election law changes could lead to an era of greater competitiveness in the Grand Canyon State's rigidly partisan legislative districts.
And in Republican-dominated Arizona, that could be a boon to many of the same Democrats who vilified the high court's decision to gut a key provision of the Voting Rights Act. That defies the conventional wisdom that the ruling was a windfall for Republicans.
According to some election law and redistricting experts, the need to draw airtight majority-minority districts hindered mapmakers' ability to create competitive legislative districts. The U.S. Department of Justice tended to deny preclearance for redistricting maps that reduced minority voting strength in any way. In some cases DOJ required increased voting strength or a greater number of majority-minority districts, prompting mapmakers to pack as many minority voters as possible into a handful of legislative districts.
Those majority-minority districts are predominantly Democratic. Historically, the result has been legislative maps that lock in GOP majorities and make it extremely difficult, if not impossible, for Democrats to gain any ground.
Given the GOP's natural advantage in Arizona, Republicans would likely control the Legislature in most circumstances, no matter what the map looks like. But even in the best of Democratic years, Arizona's minority party has effectively no chance of winning even a single chamber for a term.
Even the current Independent Redistricting Commission, which saw the independent chairwoman vote almost exclusively with the commission's two Democrats and against its two Republicans to create three competitive congressional districts, drew a legislative map that essentially ensures Republican dominance at the state Capitol.
Under the Voting Rights Act, the IRC must still create districts where minority voters have the ability to elect the candidates of their choice. But without the stringent requirements of Section 5 of the Voting Rights Act, which mandated preclearance for states and other jurisdictions with a history of discriminatory voting and election practices, the rules are a bit different.
Some majority-minority districts could take in Republican voters from neighboring areas, creating more competitive districts. Meanwhile, the Voting Rights Act districts, which almost exclusively elect Democrats, would be left largely intact. That shift could be aided by the fact that most Democratic districts in Arizona are underpopulated compared to their Republican counterparts.
Lee Miller, a veteran elections attorney and longtime counsel to the Arizona Republican Party, estimated that the next redistricting commission could create significantly more competitive districts now that Arizona no longer needs federal preclearance. And that, he said, could mean good news for Democrats if they can take control of the next redistricting commission. The independent chairperson of the IRC is the tiebreaker vote, and a chairperson friendly to the commission's Democrats effectively puts them in charge of the redistricting process.
"If Democrats are in charge, without a requirement to hit precise, math formula-driven obligations on majority-minority districts, if nothing else, you're going to probably be up to 10 or 12 truly competitive LDs. And that's bad for Tea Party Republicans," Miller said.
The IRC touted seven of its legislative districts as competitive, but only four have actually elected candidates from both major parties, and one of those four is considered solidly Democratic, though a Republican candidate won a House seat there in the GOP wave of 2014.
Changing the rules
When Arizona's mapmakers begin their work, they generally start with the Voting Rights Act districts and then draw the rest of the map around them.
Complicating matters had been the lack of concrete guidelines from the Department of Justice. States and other jurisdictions could not have any retrogression, meaning they couldn't reduce the previously-established voting strength of minority groups. But that didn't necessarily preclude the feds from requiring more or stronger Voting Rights Act districts.
Doug Johnson of National Demographics Corporation, a consulting firm that worked on Arizona's 2001-02 redistricting process, said that factor sometimes encouraged states to pack more minority voters than necessary into Voting Rights Act districts to ensure that DOJ wouldn't object.
"Section 5 encouraged jurisdictions to play it safe," Johnson said.
Steve Lynn, who chaired Arizona's first redistricting commission, said the lack of concrete standards means mapmakers have to make an educated guess at how far they must go to satisfy the DOJ.
"The problem is they don't tell you what enough is, so it's a stab in the dark," he said.
In an attempt to break Arizona's history of preclearance rejections on its redistricting maps, the current IRC placed a high priority on getting it right the first time.
Miller said future commissions could create more competitive districts by drawing "riskier" majority-minority districts.
Bruce Adelson, a redistricting consultant who worked with the IRC in 2011 and 2012, said Arizona could absolutely create more competitive districts now that preclearance is off the table.
"There's no question that population shifts can be done in a former Section 5 state differently than they were under Section 5," said Adelson, who was part of the DOJ team that rejected Arizona's legislative map in 2002.
Indeed, not all, or even most, legislative districts can be made competitive. The East Valley will be a Republican stronghold regardless of how the lines are drawn, while the southwest Valley and south Phoenix will continue to be Democratic bastions. And, as evidenced by the 2014 election, when the GOP swept all statewide offices, Arizona is still very much a Republican state.
But there are at least four areas of the current legislative map where marginally Republican districts border Democratic majority-minority districts in which populations could be shifted to create more competitiveness.
Legislative District 18, which is anchored in Ahwatukee and includes part of Chandler, is competitive enough for Democrats to fight for but not enough for them to win. But some of its population could be shifted around between two neighboring Democratic districts, one of which is a Voting Rights Act district that is significantly underpopulated, to make it more competitive. One neighboring district, Legislative District 27, has a minority population of about 80 percent.
In north-Phoenix based Legislative District 20, Republican voters could be moved into Legislative District 30, its heavily Democratic neighbor to the south, making LD20 more competitive. LD20 has a non-white population of more than 70 percent.
In northern Arizona-based Legislative District 6, which the IRC initially touted as a competitive district but has been reliably Republican, GOP voters could be moved into neighboring Legislative District 7, a Democratic district in which Native Americans make up about 66 percent of the population.
And Legislative District 28, one of the few competitive districts in the state, could be made more so by trading voters with LD30 and central Phoenix-based Legislative District 24, which the IRC touted as a majority-minority "coalition district."
Those scenarios would only apply if the IRC for some reason had to redraw the current map. When a new round of redistricting begins, the commission is required by the Arizona Constitution to start with a blank slate and cannot take the preexisting districts into account.
Risks and rewards
Of course, diluting minority voting strength in staunchly Democratic districts would be a high-risk, high-reward proposition for Democrats. In a Democratic wave year, more competitive districts could potentially give Arizona's minority party a rare chance to take control of a legislative chamber. But in big Republican years, Democrats could potentially lose seats in deep blue districts.
For example, even under the current map, the GOP won a House seat in southern Arizona-based Legislative District 2, where non-white voters make up about 66 percent of the voting-age population and Democrats have seemingly insurmountable registration advantage.
And if Republicans took control of the next redistricting commission, they could potentially use the lack of preclearance to pack more Democratic and minority voters into majority-minority districts, which would give the GOP an even greater advantage in legislative elections.
That factor could come into play in 2015 if the Legislature gets to redraw Arizona's congressional map. The Legislature sued the IRC, alleging that the U.S. Constitution bars anyone except the lawmakers themselves from drawing congressional districts. The U.S. Supreme Court will hear arguments in the case on March 2.
If the GOP-controlled Legislature gets to redraw the congressional map, it could use the lack of preclearance to add more Republicans to Arizona's three competitive districts, two of which saw Democrats win their re-election bids in 2014.
And some experts said the lack of a preclearance requirement could aid Arizona in creating more competitive districts, but not by much. Justin Levitt, a constitutional law professor at Loyola Law School who specializes in redistricting issues, said even if more competitive districts could be drawn at the expense of majority-minority districts, the difference would be marginal.
"A marginal difference in packing minority voters may lead to more competition," Levitt said. "But it's not necessarily the case."
However, there is another issue at play. Though Section 5 no longer applies to Arizona, the rest of the Voting Rights Act remains intact. And that could cause serious problems for any commission that tries to create more competitiveness by diluting majority-minority districts.
Not so fast
Because other parts of the Voting Rights Act are still in effect, legislative districts would have to be drawn in a way that ensures minority voters have the ability to elect the candidates of their choice.
Critics could still sue under Section 2 of the Voting Rights Act if minority voting strength is diluted too much, or if the state does not create enough majority-minority districts. Adelson warned that if a state goes too far, a federal court could even force it back into preclearance using Section 3 of the act, a process known as a "bail-in."
If a judge determined that Arizona intentionally diluted minority voting strength, or that Voting Rights Act no longer afforded minority voters the opportunity to elect their preferred candidates, the judge could order that the maps be redrawn.
"Certainly jurisdictions don't have free reign to just move people around however they want to. Section 2 is still out there and has very powerful requirements," Adelson said.
Lynn said that the preclearance process probably dissuaded some Section 2 lawsuits because the IRC could point to DOJ approval as a strong sign that a district map complied with the Voting Rights Act. It also gave the commission an opportunity to make needed changes before new districts went into effect.
Lisa Hauser, an elections attorney who served as counsel to the first IRC, said future commissions will have to be careful to ensure they comply with Section 2 of the Voting Rights Act. But unlike the preclearance process, Section 2 lawsuits can't be filed until after a district has been implemented, which Hauser said would make it easier to draw competitive districts.
"Future commissions are always going to have to pay attention to Section 2. It's just that with Section 5, DOJ can come in and throw a flag on the field with respect to your maps before they've ever been used. And with Section 2, you really have to see how they perform," she said. "You don't have to necessarily worry about them coming in advance and not giving the commission a chance to test out its districts."
Prepare for a fight
If Democrats made a strong push to create more competitive legislative districts by diluting majority-minority districts, they would likely face opposition from Republicans. Consultant Tony Sissons, who worked with the Legislature on the 1991-1992 redistricting, emphasized that both parties generally want safe districts.
"They know that it's a zero sum game," Sissons said.
But there would likely be opposition from minority Democrats as well. In 2011, officials from the predominantly Latino enclave of Guadalupe warned the IRC against a proposal to move the town out of majority-minority LD27 and into a neighboring district in order to bolster its minority voting strength.
And early in the 2011 redistricting process, the Arizona Legislative Latino Caucus emphasized that it considered safe minority districts to be more important than competitiveness. DOJ traditionally consulted groups representing minority voters as part of the preclearance process.
Sen. Steve Gallardo, a member of the Arizona Legislative Latino Caucus, said any plan to create more competitive districts at the expense of majority-minority districts would likely face stiff opposition from the Latino community.
"What might be competitive for others might be disastrous ... for us," said Gallardo, who was elected in November to the Maricopa County Board of Supervisors.
But Gallardo has softened at least a bit in his opposition to trading minority voting strength for competitiveness. The Phoenix Democrat said the important thing is to ensure that minority voters can still elect the candidate of their choice.
"Do I think that some of the legislative districts can be reduced by a percentage or 2 percent or whatever to make a district more competitive? Yes. I think there's a middle ground there," Gallardo said.
Rep. Martin Quezada, D-Phoenix, an advocate for minority voting rights, was wary of the notion of watering down minority districts to create more competitiveness. But he wasn't completely opposed to the idea.
"I'm hesitant to say that it's not worth the trade-off," Quezada said. "I think in some situations we can accomplish both of those goals."
Any plan to soften majority-minority districts in favor of competitiveness could face pushback if it conflicted with other criteria that Arizona must use in the redistricting process. The Arizona Constitution mandates six criteria, including the Voting Rights Act, compactness and keeping "communities of interest" together, and requires that the IRC shall consider competitiveness only when it is not detrimental to other goals.
During the last redistricting, the two Republican commissioners clashed frequently with their colleagues over their belief that the commission was putting too much emphasis on competitiveness.
"Arizona has an obligation to take other criteria into account, well before it considers trying to draw districts intentionally so as to make them competitive," Levitt said.
Some argue that the IRC could have made more competitive districts while still complying with the Voting Rights Act, including preclearance. The Arizona Supreme Court in 2009 rejected the arguments of a group that sued the IRC over the lack of competitive districts.
And some hope that the lifting of the preclearance requirement will only be a temporary phenomenon. The U.S. Supreme Court ruled that the criteria used by Section 4 of the Voting Rights Act to determine which jurisdictions must get preclearance was unconstitutional, but left Section 5 intact. Congress still has the option of updating those criteria in a way that will pass muster with the courts.
Published: Fri, Jan 09, 2015
