The US Supreme Court seems poised to declare Section 5 of the 1965 Voting Rights Act unconstitutional, at least according to Wednesday’s oral arguments. Good riddance; this law has created ridiculous and unnecessary districts in California for four decades and it is time for it to go.
Two sections of the Voting Rights Act impact how legislative and congressional districts are drawn. Section 2 in essence requires that “majority minority” districts be drawn whenever you have a high concentration of black or Latino voters. The political impact of drawing these heavily minority districts has been concentrating Democratic voters in big city districts. The Democrats found to their horror in 2012 that their House of Representatives candidates received more votes nationally than Republican candidates did, but the Republicans won more seats. That is because Section 2 concentrates Democratic voters and allows Republicans to be spread out.
Republicans love the Voting Rights Act because it allows them to control Congress; minority Democrats love it because more minority Democrats are elected; media elites love it because they think it allows fair representation. No one wants to admit what it really does: permit the kind of racial gerrymandering we saw with the California Citizens Redistricting Commission in 2011.
Section 5 works differently. It requires districting plans of covered jurisdictions to be “pre-cleared” by the US Department of Justice. But these plans must meet certain racial benchmarks. The covered jurisdictions were decided decades ago based on a population to voter formula. In California, there are four Section 5 counties: Monterey, Kings, Yuba and Merced (although Merced was recently allowed out of Section 5). Why these four counties? The reason is that the formula was set in 1968 at the height of the Vietnam War, and these counties had large military bases so their population to voter numbers brought them under Section 5. It made no sense then and does not today.
Justice Anthony Kennedy put it very well in Wednesday’s oral argument when he said lawmakers didn’t take the “time and energy” to come up with a proper formula for which states should be subject to pre-clearance.
There are important differences between the two sections of the Voting Rights Act. Section 2 applies anywhere in California where large minority populations are found. Section 5 applies just to districts covering Monterey, Kings, Yuba and (until last year) Merced Counties.
Keeping these four California counties under the law has played havoc with sensible representation, especially in the Central Valley. In 2001, the legislature created a new State Senate district from Modesto to Salinas to provide a seat for a favored legislator. Ten years later, the Redistricting Commission said it was compelled to retain the Modesto to Salinas district, despite extensive public testimony against it, because Monterey and Merced Counties were Section 5 counties.
Another district, that of retiring Sen. Michael Rubio, has a long hook into portions of Bakersfield and then runs through a hundred miles of farm land to take in part of the city of Fresno. This too is justified by the Voting Rights Act. Both districts violate the plain language of the California Constitution that districts reflect obvious communities of interest, but with the Voting Rights Act federal law trumps state law.
Later this summer the Supreme Court will rule on Section 5. It appears there is a majority to strike down Section 5, perhaps requiring some clear showing of racial bias before districts fall under the Voting Rights Act. That could set up an interesting question whether California redistricting might need to be reopened in the current Voting Rights Act counties since there is clearly no evidence that racial bias played any role in Monterey, Kings, Yuba and Merced Counties coming under this law in the first place.