When Must a Minority Opportunity District Be Drawn?
The ideal district has just the right percentage of minorities to elect a minority candidate of choice. The percentage of minorities cannot be too low, lest cracking occurs, and cannot be too high, lest packing occurs. Determining the legally acceptable minority percentage requires the following steps:
First, perform a statistical analysis of election results to determine the degree of racially polarized voting.
Second, draw a district with enough minority population to elect a minority candidate of choice, given the statistical analysis.
The Supreme Court ruled in Bartlett v Strickland that in order for a district to be constitutionally required, minorities must constitute at least 50% of a minority opportunity district's voting-age population. Some have further interpreted this to mean that minorities must constitute at least 50% citizen voting-age population of a minority opportunity district.
Although to have a claim, plaintiffs must show that they can draw a 50% minority voting-age population district, a court may order the creation of a new district that does not have a population greater than 50% of the voting age population,
There are two important sections of the Voting Rights Act that apply to the creation of minority opportunity districts, Section 2 and Section 5.
Section 2 applies nationally. Essentially, Section 2 requires that if there is racially polarized voting and if a minority opportunity district can be drawn, then it must be drawn. (There is a further consideration, known as the "totality of the circumstances," which involves the history of past discrimination in the jurisdiction in question.)
Section 5 is no longer functionally operative following the Supreme Court's 2013 Shelby County v Holder ruling.
Section 5 used to apply only to "covered jurisdictions." Section 4 of the Voting Rights Act defined the covered jurisdictions as those that had a past history of using discriminatory voting laws and had low turnout in the 1964, 1968, and 1972 presidential elections. In Shelby County, the Supreme Court essentially said that there was no rational basis for these historical elections to govern which jurisdictions should be covered today, and invalidated the Section 4 coverage formula.
When Section 5 was operative, covered jurisdictions had to clear any electoral change -- from moving a polling place to redistricting -- with the Department of Justice or the District Court of DC before it can take effect. (The Department of Justice was the overwhelming pathway of choice.) This federal oversight was intended to ensure that a change does not have a discriminatory effect. In the context of redistricting, Section 5 required that the number of minority opportunity districts cannot decrease during redistricting. This is called retrogression.
Section 5 could be reinvigorated if the federal government adopts a new Section 4 coverage formula. Some states, such as California and Florida, have adopted amendments to their state constitutions that have language similar in nature to Section 5, and thus require similar protections for districts in their states that used to exist in federal law.
What Is Required in Practice?
In practice, Section 2 essentially requires that at least the same number of minority opportunity districts in a previous redistricting plan must be drawn in a new redistricting plan. There are two exceptions:
In areas where minority populations have grown, such as Latino communities in Texas, more minority opportunity districts may be required under Section 2. The Supreme Court has ruled that it is permissible for states and localities to draw such districts to avoid litigation.
In areas where minority populations have decreased, it may be impossible to draw a minority opportunity district. In this case, a minority opportunity district may not be required.
How and where minority opportunity districts must be drawn will not become clear until racial polarization analyses are conducted, districts are draw, and in certain circumstances, the courts review the evidence.
It is beyond the capabilities of most ordinary citizens -- and sometimes even redistricting authorities! -- to comply with all the intricacies of the Voting Rights Act. To provide clues as to whether or not your districts are in compliance, on the statistics sidebar on the righthand side of the DistrictBuilder plan editor, we typically report the number of districts with more than 50% minority voting-age population (VAP) in the plan used for the previous decade and the number of such districts in the plan you are drawing. Typically, you should have at least the same number in your plan as in the previous plan.
When Is There Too Much Consideration of Race or Ethnicity?
If a state or locality draws a district while considering race or ethnicity, then the jurisdiction must abide by the equal protection considerations of the 14th Amendment. The state or locality must provide a rational basis for drawing the district at its percentage of minority voting-age population. This typically involves an analysis of racial and ethnic voting patterns within the area a district is drawn in order to determine what percentage of minority population is needed to elect a candidate of their choice.
One size does not fit all, as patterns of racial and ethnic voting, and the willingness of white voters to support the minority candidate of choice, may vary. In the past decade, courts invalidated plans in states like Alabama, Texas, and Virginia for adding more minorities than needed to elect their candidate of choice. That is not to say that a district can't have more minorities than needed to elect a candidate of their choice. However, the reason for doing so has to be some basis other than race or ethnicity, such as following local county or locality boundaries.