by Richard Clausi

Generally known as the birthplace of the term “gerrymandering,” Massachusetts is certainly no stranger to accusations of unequal divisions of the state’s electoral power.  From Governor Elbridge Gerry’s 1812 attempts to weaken the Federalist Party to House Speaker Tom Finneran’s 2001 alleged legislative efforts to diminish minority vote strength, historical reasons abound as to why vigilant Bay State minority citizens would be extremely wary of the state’s upcoming Congressional redistricting.  In order to quell these inevitable fears of vote dilution and limit “beast sightings” (see right) in the 2012 election cycle, however, Massachusetts lawmakers have armed themselves with an invisible weapon – transparency.

Although its population grew a modest 3.1 percent from 2001 to 2010, Massachusetts still lost one of its ten congressional districts once the U.S. Census Bureau finalized its statistics last December.  As a result, Massachusetts voters in 2012 will elect the fewest number of their representatives to the U.S. Congress (nine) since the late eighteenth century.  However, before a single representative from Massachusetts even enters the 113th Congress, the state’s Legislative Redistricting Committee must create new congressional district lines that adhere to legal doctrinal principles and (hopefully) community desires.

Controversy swirled around the Massachusetts Legislature’s most-recent foray into congressional redistricting in 2001, following the release of the 2000 Census data.  In Black Political Task Force v. Galvin, a panel of three federal judges ruled that the legislature’s 2001 Redistricting Act “deprive[d] African-American voters of the rights guaranteed to them by section 2 of the [Voting Rights Act].”  Specifically, the Galvin court found that the plaintiffs (African-American and Hispanic voters) had met all of the Gingles threshold requirements for those seeking to establish a successful vote dilution claim (i.e. sufficiently large, political cohesiveness and white majority voting blocs).  Moreover, the “totality of the circumstances” surrounding the 2001 Redistricting Act revealed that “race was used as a tool to ensure protection of incumbents” in Massachusetts’ reorganized House districts.   As such, the Galvin court struck down the portions of the 2001 Redistricting Act that “sacrificed racial fairness . . . on the altar of incumbency protection.”

Hoping to avoid a repeat of Galvin as it attempts to create nine new congressional districts in time for the 2012 election, the Massachusetts Legislature Redistricting Committee (the “MLRC”) has committed itself to the principles of government transparency.  The MLRC held thirteen public meetings throughout the spring and summer of 2011 to field questions and concerns about the redistricting process from citizens – with each meeting being “well advertised and well-attended.”  Video recordings of those public meetings (in their entirety), along with a compilation of helpful redistricting materials, can be found on the MLRC’s website.  And while an independent redistricting commission (proposed by certain Massachusetts political leaders and heavily favored by the electorate) would have helped dispel fears of potential 2012 racial gerrymandering, the Democrat-dominated MLRC cannot be accused of keeping the public uninformed about the litany of community interests involved with such a massive redistricting project.

Despite their best efforts to keep the redistricting process open and honest, some Massachusetts legislators are still convinced that litigation will inevitably crop up once a particular redistricting plan is adopted.   Michael J. Moran, House Chairman of the MLRC, argues that “[t]here’s really no way you can avoid being sued” when redistricting such a diverse community.  In support of Moran’s point, the Massachusetts Black Empowerment Coalition has threatened to sue the state if lawmakers failed to adopt one of their proposed redistricting plans.  At the same time, other religious leaders and minority group advocates have called for the rejection of redistricting maps that “fail to amplify the voice of black, Latin, and Asian residents of Massachusetts.”  With reduced numbers in U.S. House representation, it is no wonder that Massachusetts’ minority group activists might pursue aggressive litigation if they are not given the opportunity to elect a representative of their choice in 2012.  Thus, all that Moran and company can do is draft the most equitable districts, continue to reveal the rationales behind their redistricting decisions, and allow the judicial system to decide whether the final redistricting plan ultimately disenfranchises certain minority communities.

It will be interesting to see how the MLRC’s redistricting proposal strikes a balance between its Voting Rights Act obligations and compelling political interests (such as mayoral redistricting preferences and traditional incumbency protection).  But one thing is clear – the MLRC has made reasonable attempts to keep the public informed about the redistricting process.  Such transparency will ultimately bolster the MLRC’s defense against any future vote dilution claims because the MLRC will be able to reference its extensive efforts to redistrict according to principles of fairness, rather than race.  But as minority voting rights advocates continue to jockey for electoral strength in a state with dwindling U.S. House representation, lawsuits over the MLRC’s redistricting plan seem all but certain.  Thus, only a thorough review of the new congressional districts will reveal whether the MLRC’s transparency dispelled the “gerrymander” monster or simply provided great cover for the “beast’s” triumphant return in 2012.

Richard Clausi is a third-year student at William and Mary Law.

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