By: Yang Cao

Although the Supreme Court has made section 5 of the Voting Rights Act essentially ineffective by declaring section 4(b) of the Voting Rights Act unconstitutional, the legacy of section 5 remains. The non-retrogression standard of section 5 is unsuitable to the current political situation of the United States and it has created problems in the past that continue to impact the United States today.

In Ala. Legislative Black Caucus v. Alabama, the plaintiff claimed that the defendant racially gerrymandered districts following the Court’s remand in 2015, which mandated Alabama to redraw its legislative districts. The plaintiff in this case was the Legislative Black Caucus, a group of African American legislators in Alabama. They complained that African American voters were too concentrated in some districts making it difficult for them to join with other white Democratic voters to elect Democratic representatives.

To succeed on a claim of racial gerrymandering, the plaintiffs must prove that “race [was] the ‘dominant and controlling’ or ‘predominant’ consideration in deciding ‘to place a significant number of voters within or without a particular district.'” Ala. Legislative Black Caucus v. Alabama. Race predominated over traditional districting criteria if it “was the criterion that, in the State’s view, could not be compromised.”  If the plaintiffs prove that race predominated, then the defendants must prove that they had a “strong basis in evidence, that the use of race was “narrowly tailored to serve a compelling state interest . . . .”  A strong basis in evidence consists of “good reasons to believe such use is required, even if a court does not find that the actions were necessary for statutory compliance.”

In its defense, the drafters of 2012 plan explained that, although race was not the dominant factor, they were more concerned with lowering percentage of black voters in districts that originally had about 60% of voting age population to lower 50% according to 2001 census. Meanwhile, they were less worried about districts with more than 70% black voters since they are not in any danger of making black voters minority in that district, thus risking not obtaining pre clearance. Looking at changes to black voter population in all challenged districts, the court bought drafter’s argument for some districts while reject the districting plan for other districts for gerrymandering.

The course of this lawsuit showcased the deficiency of the non-retrogression standard. First, the standard tends to favor a minority-majority district. Although minority-majority districts may be necessary to protect minority interest in the past, it has become a rather outdated model. Imagine there are two candidates in an election district and voters are placed on a spectrum; on the left are black voters, and white voters are on the right. In a white majority district, the voter at the exact middle of the spectrum will be a white voter, and the reverse is true for a black majority district. If any one of the two candidates wish to win the election, his best and dominant strategy is to stand exactly at the middle of the spectrum; if his opponent choose not to stand at the middle just like he does, his opponent will lose. This is because voters will choose the candidate who is closest to him politically on that spectrum. To clarify, being at the middle of the spectrum does not mean the candidate is “political moderate,” but moderate in aggregate of the population that 50% of population politically sit on the right and left side of the candidate on the spectrum. In a system where voters’ political stance are evenly distributed, being at the middle of the spectrum also means politically moderate, but in a very polarized election, being in a middle actually means favoring the side with more voters politically while still offer something to the other side. Recently, I have seen an illustration of this pattern in a Virginia political commercial which criticized Elaine Luria as being “far left, liberal,” while praising Scott Taylor as “independent, middle of the road.” This showcases an attempt to stand in the middle to gain majority votes. In a system like this, even black voters will get their voice heard. Of course, the black voters on the left end of the spectrum will not be heard very well but, in a district with 30% black voters, their opinion still would matter.

The model above sounds cruel to minority voters, but it does not sound as cruel as it is when one considers the current reality that it is no longer a black versus white political game (as far as I am concerned). The black voters may still largely be liberal but, on a political spectrum, they are mixed with other voters, so at least theoretically someone elected “in the middle of the road” means black voters will be heard.

On the other hand, even if one assumes that the voting scheme in the United States is still a white verse black game, an important question arises. In a state with majority white population, is it better for black voters to have a few representatives who represent their interest while all others are against or indifferent to their interest, or to have multiple districts with a significant black population (though not majority) so representatives would have their interest in mind when they are making decisions? I tend to lean toward the option with more “influence districts” for black voters because, in the option with a few majority districts, black voters’ representatives are still the minority and they cannot get anything done since other representatives do not care about black voters’ interests.

Lastly, the non-retrogression standard is inflexible just as the Alabama case has proved. Minority voters cannot join democratic party’ members in other districts because they are effectively locked in their districts. If section 5 was enacted to protect minority interest, it certainly failed in its job.

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