Fifth Circuit reverses precedent, further restricts Voting Rights Act

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Gift link - Appeals Court Further Narrows Voting Rights Act’s Scope

“A federal appeals court further narrowed the scope of the 1965 Voting Rights Act, ruling that members of separate minority groups cannot join together to claim that a political map has been drawn to dilute their voting power.

The 12-to-6 ruling on Thursday by the full Fifth Circuit Court of Appeals overturned almost four decades of legal precedent, as well as an earlier ruling by a three-judge panel of the same appeals court. It applies only in Louisiana, Mississippi and Texas, the three states where the court has jurisdiction, but the decision has national implications and may be appealed to the Supreme Court.

The case involved districts for county commissioners in Galveston County, Texas, a community of about 350,000 people, where the last round of redistricting redrew a district in which Black and Hispanic voters together made up a majority of voters. The redrawn boundaries reduced their combined share of the district’s electorate to 38 percent, and a lawsuit claimed that doing so violated Section Two of the Voting Rights Act, which prohibits drawing maps that dilute minority voting power.

A lower court and the three-judge appellate panel both ruled that the new map was a clear violation of the law. But the full Fifth Circuit disagreed, saying that the law does not explicitly allow voters from more than one minority group to “combine forces” to claim their votes were diluted. …”
 
I would have to read the opinion in full to comment more fully, and I don't want to do that at the moment. I will therefore limit my comments now to:

1. It's quite telling that the majority characterized "we should measure the racial composition of districts by looking at the non-white population" as "they want to combine forces." There are a lot of issues there, but I'll highlight the military metaphor. These are the subtle effects that result from dangerous rhetoric about invasions. No, Hispanic voters are not an army, and neither are black voters, and there is no way to "combine forces."

And that matters. Combining forces sounds sinister, like something you'd want to avoid. Measuring the non-white population sounds eminently reasonable. Now I suppose it's possible that the plaintiffs' briefing used the phrase as a shorthand but I very much doubt it. It would seem like malpractice to me.

2. On the merits, I'm not sure what to think of the underlying idea. It's possible that the 5th got it right this time. For a long time, people assumed that the interests of blacks and Hispanics were largely consonant; they both were subject to racism, and both had an interest in having somebody not-white elected to the Congressional representation.

But that alignment isn't necessarily true, and at least in some states, we're seeing quite a divergence between Hispanic and Black political views and interests. In that case, it's a bit troubling to say that minorities deserve the "opportunity to elect a candidate of their choice," as the Voting Rights grants, when there isn't a candidate of their choice because "they" have disparate interests. In fact, you could think of a scenario where the white community uses this to dilute voting rights. It says, "hey, we are going to make a majority minority district with 20% black and 20% Hispanics"*** knowing that the Hispanics in the community are aligned with the white conservative issues. The use of the Hispanic population would therefore dilute Black political power.

I don't know enough about voting rights laws or voting rights theory in general to be able to provide a useful opinion (as opposed to just pointing out issues), so I don't know if I can go further with this. I'll just say that, at a first glance, it's not obvious to me that the Fifth is wrong here. Now, if I was to bet, I'd bet against the Fifth on Bayesian probability alone, but it's one of the less ridiculous things it has done recently. I think.

*** Obviously 20+20 = 40, and 40 is not a majority. But "majority minority" means that the minority community can elect the candidate of its choice. In most places, 40% would probably do it, because the 60% white population is unlikely to align entirely against the black candidate. There are white Dems, even in Texas. That said, there are places where I don't think 40% would suffice. For instance, St. Louis city has been, for a very long time, really segregated. Well, I don't know if it still is, though I doubt it's changed much. Every mayoral election, there would be two candidates in the Dem primary (there were no serious Pub candidates, so the Dem primary was the election) -- one white guy from the South Side and one black guy from the North Side. The white and black populations were roughly equal, and it was a turnout war that the whites usually won (in part because they f'd with the voting procedures on the North Side). In that case, I'm not sure I would say that a 40% black district was majority minority.
 
I read the opinion. The Fifth was wrong. The plaintiffs have to prove political cohesion and they did so in this case (which was a case about dilution of city council voting power) by showing that Hispanics and African Americans vote together more than 75% in these elections.

The majority basically ignores that and engages in racial essentialism. A person is black or Hispanic but not both (hmm, sound familiar). And thus we can't have them "combining forces" because Congress never authorized that (which is ridiculous).

So again, the Bayesian analysis of the Fifth Circuit carries the day. The odds of a Fifth Circuit opinion being terrible are very high, so even if it might look on the surface not ridiculous, it probably still is. And indeed, that's again the case.
 
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