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Credit: Governing magazine.

Credit: Governing magazine.

As the case challenging North Carolina’s 2011 redistricting plan languishes in state Supreme Court, two similar cases out of Alabama that may bear directly on the legality of our state maps are set for argument in the U.S. Supreme Court this fall.

In Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabamaparties are challenging the legality of “packing” minority voters into districts where they already are in political control, reducing their impact elsewhere.

As summarized by SCOTUSblog:

Both [cases] challenge decisions by a federal district court that upheld (by a split two-to-one vote) a new boundary map that kept the  same number of state senate and state house districts that previously had majorities of African-American voters, but added to those majorities in almost every district.  Sponsors of the plan insisted they were doing so to obey their obligations to protect minority voters’ political strength under federal voting rights law, but the challengers argued that this was an unconstitutional use of racial gerrymandering.

In both the Alabama cases and the case pending here (Dickson v. Rucho), state lawmakers have argued that the Voting Rights Act required them to redraw districts and pack African-American voters into districts — even though those voters, while still a minority of the voting age population in their previous districts, had been electing their candidates of choice.

The viability of that argument will be before the nation’s highest court in the fall, and yesterday — in a friend-of-the-court brief filed there — attorneys for the parties challenging the North Carolina maps urged the justices to reject redistricting on that basis as “an unconstitutional use of race that must be corrected.”

Here is an excerpt from that brief:

This Court reiterated in Bartlett v. Strickland the well-established principle that the “‘moral imperative of racial neutrality is the driving force of the Equal Protection Clause,’ and racial classifications are permitted only ‘as a last resort.’” The Court further cautioned that “[o]ur holding also should not be interpreted to entrench majority-minority districts by statutory command, for that, too, could pose constitutional concerns.”

The North Carolina legislature, like the Alabama legislature, misapplied these principles in the 2011 redistricting by imposing a racial proportionality target for the number of majority-black districts and requiring every district to meet a specific black population percentage target. As in Alabama, the North Carolina General Assembly believed that these fixed racial targets were required by the Voting Rights Act.

Ignoring decades of progress in increasing opportunities for black voters to participate in the political process, in 2011 the General Assembly created more majority-black districts than ever before, thereby entrenching racial stereotypes and tearing apart effective cross-racial coalitions that had evolved over time. The General Assembly’s use of racial targets in redistricting was justified only by the mistaken belief that they were required by federal law. In addition to North Carolina and Alabama, there is only one other redistricting case, currently pending in Virginia, in which it is alleged that the Legislature admittedly and explicitly used racial targets in drawing districts.

Thus, what is needed here is not a revision of voting rights jurisprudence; nor will reversal of the trial court result in significant upheaval of redistricting maps throughout jurisdictions formerly covered by Section 5 of the Voting Rights Act. Rather, the misinterpretation of the Voting Rights Act’s requirements resulting in the unfair imposition of racial targets in redistricting in a few states is an unconstitutional use of race that must be corrected.

Read the full brief here.

 

 

 

 

 

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EARLY VOTINGThe League of Women Voters and other groups and individuals challenging the state’s new voting law in federal court today appealed a lower court ruling rendering the law effective for the November elections.

They’ll ask the 4th U.S. Circuit Court of Appeals to expedite the matter with a view towards a quick ruling.

“We will be seeking expedited review to get a ruling that can be implemented well in advance of the elections,” said the ACLU’s Chris Brook, one of the attorneys in the case.

The league joins the NC-NAACP, which filed its notice of appeal yesterday, and students who joined the cases who appealed earlier in the week.

Together they’re appealing U.S. District Judge Thomas Schroeder’s August 8 ruling allowing voting changes to take effect in November.

For North Carolina voters, that means that there would be no same-day registration, early voting days would be reduced from 17 to 10, and votes cast out-of-precinct would not be counted.

“If one person’s right to vote is denied or abridged this election, this democracy suffers,” NC NAACP president Rev. Dr. William J. Barber, II said yesterday in a statement. “While restoring the rights of North Carolina voters and renewing the integrity of democracy in our state will require a long legal fight, we must start now by doing everything we can to block this law for the November election.”

 

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Voting rightsDeserved or not,  Jasper, Texas — population 7600 —  has become known to those living in other regions of the country as a hot bed of racist activity.

It was in Jasper in 1998 that three white men chained a black man, 49-year-old James Byrd, Jr., to the rear bumper of a pick-up truck and dragged his body along local roads for nearly three miles until his head and shoulder were severed from the rest of his body.

At least twice over the next few years, Byrd’s grave — located in the black section of a segregated cemetery — was desecrated.

It was in Jasper in 2011 that a group of white voters organized a recall of black city council members after the council had hired the city’s first black police chief.  Once new white council members were installed, they fired the chief.

Now Jasper is embroiled in a controversy of another racial sort — voting. Norm Ornstein describes the situation in this Atlantic piece:

In 1988, Jasper tried to annex several predominantly white areas into the city. Under the Voting Rights Act, the city needed preclearance, which the Justice Department denied because it would dilute black voting strength. The city was forced to move from all at-large elections to district ones as a precondition of getting the annexations approved. Now, with no fear of preclearance, the City Council is moving to annex three predominantly white neighborhoods, enabling the city to redraw the City Council lines to dilute any potential of electing black council members.

Ornstein highlights Jasper as a reminder that the Voting Rights Act still matters, but the town also is an example of oft-overlooked discriminatory efforts to restrict voting at the local level.

Over the years, while broad-based restrictive voting practices at the state and federal level drew headlines, discrimination happened far more often at the local level.

As the Brennan Center noted in its recent report on the impact of the Supreme Court’s elimination of Section 5 preclearance in its Shelby County decision:

Section 5’s loss will perhaps be felt most acutely at the local level. The great majority of voting law changes that were blocked as discriminatory under the Voting Rights Act were local: counties, municipalities, and other places that operate below the state level.

The Leadership Conference on Civil and Human Rights echoes that assessment in its recent report:

The vast majority of instances of racial discrimination since 2000 have occurred at the local level. They often concern the election city, county or other local elected officials, where many of the contests are nonpartisan.

The North Carolina experience bears that out. Here, from the Leadership Conference report, are a few examples of local discrimination thwarted by Section 5:

• Pitt County (2012) – Session Law 2011-174 reduced the number of school board members from 12 to seven, changed the method of election, and reduced the terms of office from six years to four years. The benchmark plan provided Black voters with the ability to elect candidates of their choice to two of 12 seats. The change in the number of school board members in conjunction with the method of election would have decreased minority-preferred officials on the school board from two of 12 to one of seven and was, therefore, found to be retrogressive.

• City of Kinston (2009) – The city proposed a change to nonpartisan elections, with a plurality-vote requirement. Although Black people comprise a majority of the city’s registered voters, in three of the four previous general municipal elections, African Americans comprised a minority of the electorate on Election Day and had had limited success in electing candidates of choice during recent municipal elections. The small amount of White crossover votes resulted from the party affiliation of Black-preferred candidates. DOJ analysis found that the elimination of party affiliation on the ballot would have likely reduced the ability of  Black voters to elect their candidates of choice. The objection was subsequently withdrawn based on new evidence.

• City of Fayetteville (2007) – The city proposed a change to the method of election from nine single-member districts to six single-member districts, with three other positions filled by the top three vote recipients in an at-large election. Under the existing system, African-American voters had elected candidates of their choice to four of the nine positions on the council in all instances. However, under the proposed plan, it was unlikely that African- American voters would have had a comparable ability to elect candidates of their choice to the same proportion of positions on the council.

• Harnett County and Harnett County School District (2002) – The redistricting plans for the Board of Commissioners and the Board of Education contained no district in which Black people were a majority in either total or voting age population. However, in the benchmark plan, Black people did constitute a majority in both total and voting age populations in one district. The county did not establish that this reduction would not have resulted in retrogression in the ability of minority voters to exercise their electoral franchise.

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vote2The groups and individuals challenging North Carolina’s recent voting law changes filed papers late yesterday in federal court in Winston-Salem asking that implementation of those changes be suspended until at least after the November mid-term elections.

“North Carolinians should be able to vote in the November election without having to navigate the barriers imposed by this discriminatory law,” said Chris Brook, legal director of the ACLU of North Carolina and one of the attorneys for the challengers in League of Women Voters of North Carolina et al. v. North Carolina.

Those challengers contend that changes eliminating a week of early voting, ending same-day registration, and prohibiting out-of-precinct voting unduly burden the right to vote and discriminate against African-American voters, in violation of the U.S. Constitution’s equal protection clause and the Voting Rights Act of 1965.

“Voters are at real risk of being blocked from participating in the pivotal midterm election,” Dale Ho, director of the ACLU’s Voting Rights Project, said in a statement. “If this law is subsequently found unconstitutional, as we fully expect it will be, North Carolinians who were denied the vote will never get a do-over.”

The parties’ motion follows a ruling late last week by U.S. District Judge Thomas Schroeder requiring state lawmakers to disclose communications about the voting changes between themselves and others during the time such changes were being discussed and implemented.

Read the parties’ motion requesting a preliminary injunction here.