Redistricting -- mapping, doggone it! -- UPDATED

Extra, extra, read all about it: on Thursday, Arizona Attorney General Tom Horne filed suit in federal court seeking to overturn Voting Rights Act provisions governing changes to Arizona's legislative and Congressional district maps. Because of Arizona's history of racial discrimination in voting, new maps must be precleared, either by Department of Justice or a federal court.

Ironically enough, Horne's action coincided with the Hispanic Coalition for Good Government presenting proposed Majority-Minority (Voting Rights) Congressional districts to the AIRC. Maricopa County Supervisor Mary Rose Wilcox lead the presentation along with Pima County Supervisor Richard Elias and Pinal County Supervisor (and former longtime state lawmaker) Pete Rios. Their presentation focused on two proposed districts primarily covering areas now represented by Ed Pastor (CD4) and Raul Grijalva (CD7).

Wilcox said the proposed CD4 is 60 percent Hispanic, and "we feel this is what we can accept as a majority-minority district." She also cited a wide array of social/demographic characteristics of the proposed district.  Maybe I missed it, but I do not recall hearing anything about the effectiveness of representation in Congress of the concerns of minorities in Arizona.

By the way, is protection of minority voting rights in Arizona the issue?  Tom Horne would have us believe that there is no need to extend Voting Rights Act protections to Arizona minorities.

On its face, Horne's lawsuit is patently absurd. Evidence already exists that the 2001 AIRC proposed legislative district maps that intended to discriminate against minority voters.

Or should we be thinking in terms of restoration? Clearly, there are Hispanic and other minority elected officials at several levels of government in our state.  But at the Arizona legislature, or in Congress, is the voice of Arizona's minority voters heard in public policy debate?  How would the changes proposed by this coalition protect, or more appropriately restore that voice?

Kudos to commissioners McNulty and Herrera for asking some good questions. Herrera asked about the concept of packing.  Rios replied that there is a fine line and he believes DOJ will pick up on any effort to pack. By the way, the coalition also said its proposal was endorsed by MALDEF. McNulty also indicated she wanted to compare, side by side, these maps with those commissioners directed Strategic Telemetry to develop addressing Voting Rights Act considerations.

The most significant aspect of yesterday's meeting was the open discussion on mapping related issues. So much more discussion will take place before any maps will even begin to resemble a DRAFT that could be adopted and presented to the people of Arizona for review and comment.

While partisan interests continue to suggest the final maps are a "done deal," the contrast between the first AIRC and what is taking place now is very exciting to me.  The five commissioners deliberate in open session and that is very encouraging.

Clues exist in the agendas, minutes and transcripts of the 2001 AIRC to suggest a great deal of its deliberations were done in executive session. Among the points to note, they entered into executive sessions based only on vaguely stated purposes (see item IV). With reference to obtaining unspecified legal advice, God knows what they talked about. Well, aside from those attending the closed sessions, and maybe a judge or two.

The only thing that is a done deal concerning this redistricting is the census data upon which the new maps will be based.  Everything else is still subject to the open process.

A couple of days ago, I spoke with Adolfo Echeveste, the second executive director of the first AIRC. Reflecting on his testimony at the Public Outreach Hearing in Pinetop last month, Echeveste told me he wishes he also said that the outrage and controversy raised by GOP and tea party interests makes him think they have absolutely no confidence in the Republican commissioners.  And I agree completely.

Rick Stertz and Scott Freeman are both smart, assertive and fully capable of making their ideas and their "druthers" known.  Despite all of the weeping and gnashing of teeth that accompanied the 3-2 votes on legal counsel and mapping consultants, both are fully participating in the discussions on mapping issues, doing so with confidence, and influencing policy decisions that are about to be made.

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Also, US Attorney General Eric Holder issued the following statement in response to Tom Horne's lawsuit:

Department of Justice

Office of Public Affairs

FOR IMMEDIATE RELEASE

Thursday, August 25, 2011

Statement of Attorney General Eric Holder on Lawsuit Challenging the Voting Rights Act of 1965

WASHINGTON – Attorney General Eric Holder released the following statement regarding a lawsuit filed today by the State of Arizona challenging the constitutionality of the Voting Rights Act of 1965:

“The Voting Rights Act plays a vital role in our society by ensuring that every American has the right to vote and to have that vote counted.  The Department of Justice will vigorously defend the constitutionality of the Voting Rights Act in this case, as it has done successfully in the past.  The provisions challenged in this case, including the preclearance requirement, were reauthorized by Congress in 2006 with overwhelming and bipartisan support.  The Justice Department will continue to enforce the Voting Rights Act, including each of the provisions challenged today.”

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From the Congressional Record of July 20, 2006 (emphasis mine)

Mr. KYL. Mr. President, I rise today with my colleagues Senators CORNYN and HATCH from the Judiciary Committee—Senator HATCH having chaired the committee for several years—and the assistant majority leader of the Senate, Senator MCCONNELL, to speak on the legislation renewing the Voting Rights Act.

Let me begin by saying I support the Voting Rights Act extension. This law was critical to ending over 90 years of voting discrimination against African-Americans in the South. Prior to this law, many States enforced discriminatory policies that were designed to and that did prevent African-Americans from voting. Since that law was enacted, many of the same States where African-Americans first voted in far lower numbers than Whites now have higher percentage of African-Americans voting than other races.

The Voting Rights Act is a historic achievement that has corrected one of the glaring injustices of our Nation’s past. It has been an important step in our Nation’s continuing progress toward our founding ideal that all men are created equal. 

Mr. President, I wish to address some questions that have been raised about this reauthorization and ask my colleagues if they concur in my interpretation.
The bill amends section 5 by legislatively abrogating two Supreme Court cases interpreting the act: Reno v. Bossier Parish and Georgia v. Ashcroft. These changes are related to one another. They are designed to operate together to achieve a common objective: the protection of naturally occurring legislative districts with a majority of minority voters. 

The two changes to section 5 accomplish this goal by enhancing and refocusing the operation of section 5. These changes simultaneously bar redistricters from denying a large, compact group of minority voters a majority-minority district that it would receive in the absence of discrimination, and also to bar redistricters from breaking up a compact majority-minority district that has been created in the past. 

Some have raised the specter that Federal bureaucrats will abuse the authority we are giving them under this provision, that they will characterize all manner of practices as having a ‘‘discriminatory purpose.’’ In particular, there has been some suggestion that the new language will be abused by the Justice Department to require creation of the maximum number of Black majority districts possible or the maximum number of so-called coalition or influence districts, in which minority voters are combined with enough White voters of similar partisan leanings to elect a candidate.

I don’t think this is what the bill does, or that it can be reasonably read to do this. To say something has a discriminatory purpose is a term of art. It is the language of the jurisprudence of the 14th amendment, of cases such as Washington v. Davis, which define when particular action constitutes racial discrimination and violates the Constitution.

There is a well-defined body of case law defining when racial discrimination violates the U.S. Constitution. That case law provides clear borders to the limits of the Executive discretion being granted in this bill. 

One traditional and important standard for identifying unconstitutional racial discrimination is to ask whether the challenged court action departs from normal rules of decision. In the case of redistricting, courts and the Justice Department would ask: Was the decision not to create a Black majority district a departure from ordinary districting rules? If a State has a large minority population concentrated in a particular area, ordinarily rules of districting—following political and geographic borders and keeping districts as compact as possible—would recommend that these voters be given a majority-minority district. If the redistricters went out of their way to avoid creating such a majority minority—one that would be created under ordinary rules—that is unconstitutional racial discrimination, and it is banned by this bill. But this bill does not require the creation of a majority-minority district that would not be created under default districting rules. Nor does the bill require the creation of coalition or influence districts. It bars discrimination against racial minorities, not against electoral advantages sought by either Republicans or Democrats. Moreover, no group is entitled to always be included in a district where the candidate of its party will prevail.

This section’s abrogation of Bossier Parish does not permit a finding of discriminatory purpose that is based, in whole or in part, on a failure to adopt the optimal or maximum number of compact minority opportunity districts or on a determination that the plan seeks partisan advantage or protects incumbents. With the language of this bill, we are importing the constitutional test in section 5, and nothing else. With this understanding, I support this improvement to section 5 of the Voting Rights Act.