What They’re Missing

The analyses and coverage of the Supreme Court’s decision this week that invalidated Section 4 of the Voting Rights Act (VRA) is typically missing a very subtle but highly important point.

As mentioned in many articles and interviews, now that the official formula determining whether a jurisdiction must adhere to US Justice Department supervision is invalid, the laws previously stayed through the denial of pre-clearance procedure have taken effect. A representative sampling of recent laws that failed the pre-clearance test but are now fully enforceable are several polling place voter identification statutes from various states.

In terms of political district map drawing, there is now another crucial factor present in some places. Most states have what is commonly described as a “county line law.” The statute typically says that a county must be kept whole unless more population is needed to reach the proper district target figure. Often times counties are split between or among two or more districts for purposes of adding more minorities to a congressional or legislative district in order to protect that seat under Section 5 of the Voting Rights Act. Now that the elimination of Section 4 effectively debilitates Section 5, the county line laws will presumably be stronger than the VRA, the reverse of what had, heretofore, been the usual practice.

Florida could be the state most quickly affected by the county line situation. In 2010, voters passed a ballot initiative that defined new and additional redistricting criteria. One of the included items is the county line provision. Currently, the state is embroiled in live redistricting litigation, and apparently headed for a January trial in Leon County (Tallahassee). The Supreme Court’s opinion this week will likely bear major influence upon the state judge’s ultimate decision, and it is probable that the tables have turned in the plaintiffs favor. If they do in fact win at the lower and upper court levels, new congressional and legislative maps will likely be mandated, and that could happen as early as the 2014 election cycle.

Florida is particularly vulnerable on the county line issue. The state has seven counties that are larger than a congressional district. Within those seven counties is enough population to complete 10 CDs. The current map brandishes only two such districts. Other states with live litigation that could possibly affect their 2014 or ’16 legislative and/or congressional maps are North Carolina and Arizona.

The analysis that Republicans will be the big winners under the court’s new ruling is not necessarily true. The county line rule will not only be devastating to minorities, but it will likely hurt Republican districts as well. Without the ability to break into new counties to annex minority precincts in order to create a majority minority district, the minority voters, with their generally loyal Democratic voting patterns, will be placed in Republican districts. This change should allow other Democrats to gain not only within the city sections of counties, but also in the suburban areas.

Redistricting legislation is nothing if not complex. And, this latest Supreme Court ruling and future congressional and legislative action as a result of it will again be unpredictable and prone to engender unintended consequences. Despite some analysts’ conclusions to the contrary, it is highly premature to begin projecting specifically what seats will change hands as a result of this court action.

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