By Kent Willis, Executive Director, ACLU of Virginia
One hundred years ago, at the 1901 Virginia Constitutional Convention, the subject of elected school boards surfaced. Virginia's finest statesman, all of whom were white, debated the issue, but quickly concluded that school boards should be appointed rather than elected to make it easier to keep African-Americans from serving on them.
Ninety years later, in 1991, Virginia's state and local officials approached the decennial redistricting process in a wholly different atmosphere. The Voting Rights Act of 1965-- thanks to powerful new amendments in 1982 and an expansive U.S. Supreme Court ruling in 1986--had finally developed some real muscle. As government officials gathered to draw new election districts, they were keenly aware of more than a dozen recent voting rights lawsuits striking down racially discriminatory election plans around the state.
So lawmakers began redrawing election boundaries to undo a century of racial gerrymandering. In the process, they added new majority-minority districts in the House of Delegates and the Senate, and created Virginia's first African-American majority Congressional district since Reconstruction. In addition, dozens of African-American majority voting districts found their way into local election plans.
The results speak for themselves. In 1983, approximately 75 African-Americans held elective offices in Virginia. By 1993, that number was about 125, an increase of nearly 70%. These numbers were still rather low, but Virginia seemed to be moving rapidly toward real racial equality in the design of its federal, state, and local election plans.
Now, as the redistricting process begins again, there is a sense that unfavorable legal developments during the mid-1990's have pushed voting rights so far back that it seems more like 1901 than 2001. That is not true, but this misperception has lead to a fear that voting rights advocates will not come out in full force during 2001, and that even if they do, government officials will not listen to them.
The redistricting rule of thumb in 1991 was straightforward: where local, state, or federal election districts in which minorities comprised a majority of the voters could be drawn, they had to be drawn. This was an oversimplification that gave the Voting Rights Act more punch than it really had. But legislators knew that Virginia was grossly out of compliance with the law, and if they did not draw new majority-minority districts, a federal court would.
Little did anyone know in 1991 that the U.S. Supreme Court was preparing to give the Voting Rights Act a makeover. By the mid-1990s, the nation's highest court had decided, in short, that an ugly looking voting district drawn for the purpose of eliminating racial discrimination violated the Constitution. It was acceptable, the court said, for politicians to twist districts into pretzel-like shapes to assure their own reelection or knock off a rival, but if the district had to look slightly odd to give minorities an equal chance to participate in the political process, it was illegal. The court also ruled that it was unconstitutional for race to be the dominant reason for the shape of a district, no matter how pretty it was.
From these legal developments a new rule of thumb has emerged in 2001: race can no longer be the reason for drawing election district boundaries. But just as the oversimplifications of 1991 exaggerated the power of the Voting Rights Act, the oversimplifications of 2001 are understating it…and dangerously so.
The Supreme Court has ruled only that race cannot be such a dominant factor in the drawing of racial boundaries that it subjugates time-tested redistricting factors such as compactness, communities of interest, and incumbency protection. A majority-minority district is unconstitutional, the court says, only if the government "relied on race in substantial disregard of customary and traditional redistricting practices."
In truth, very few election districts are ever drawn without taking these traditional factors into consideration. Redistricting is a high stakes political game with numerous competing interests, all of which have some influence over the final design. But because the racial factor can be controversial, it tends to dominate public hearings. Voting rights advocates should not avoid race in their redistricting discussions, but they do need to make sure the record reflects the other factors that contribute significantly to the shape of voting districts.
In addition, Virginia is one of a handful of states covered by Section 5 of the Voting Rights Act. This means that every new redistricting plan must be submitted to the U.S. Department of Justice for its approval before it can be implemented.
The Justice Department will determine if the new plan will make minority voters better off or worse off than they were under the old plan. If minorities are worse off, the plan will be returned to the designers to try again. This part of the Voting Rights Act is the strongest tool available for preserving majority-minority districts in Virginia. But its effectiveness will depend to a large degree on the actions of local civil rights advocates. The Justice Department can examine the census numbers, but other less quantifiable factors used to determine measure the situation for minority votes will have to come from those who live in it.
In a way, Virginia is fortunate. Minority voters saw dramatic advances in the early 1990s, just before the Supreme Court made the redistricting game more difficult. Now, if voting rights advocates play according to the new rules, they can not only protect those gains, but move us still closer to an election system that is truly 100 years removed from the Constitutional Convention of 1901.