Blinded by color
Democrats have changed their tune about race-conscious congressional districts
Be careful what you wish for, so the folk wisdom goes, because you might get it. Democrats, having learned this lesson the hard way, have set out in Virginia to repeal themselves. Not so long ago, Democrats in Virginia demanded the creation of so-called majority-minority congressional and state legislative districts, where the majority of the voters are members of racial minorities. This was not necessarily because that was in the best interests of the people in those districts, but because such districts would ensure the election of Democrats.
The creation of majority-minority districts by states and municipalities, under pressure from the federal Voting Rights Act of 1965, was held to be justified as enabling racial minorities to elect candidates who look like the voters in the district. The Virginia General Assembly obliged after the 2010 census, gerrymandering as necessary to create districts where racial minorities would be in the majority. But this made neighboring congressional districts more friendly to Republicans. The law of unintended consequences, as experience is forever teaching, is a law immune to whim and fashion.
Creation of these “majority-minority” districts was mandated by the Voting Rights Act of 1965 which warned that district lines cannot be drawn in such a manner as to “improperly dilute minorities voting power.” As a result, there are 113 “majority-minority” districts, a quarter of the nation’s 435 House districts.
Virginia Democrats were back at the U.S. Supreme Court last week to ask the justices to find the map of Virginia’s state House of Delegates unconstitutional, and order it to be drawn again in time for the 2017 off-year legislative elections. They’re specifically contesting a dozen legislative districts, in Richmond, the Hampton Roads area and along the state’s southern border, that lower federal courts have said satisfy the requirements of the Voting Rights Act. Seats in all of these districts are held by blacks. When the Republican majority in the General Assembly drew the district lines in 2011 it took notice that the districts were designed to preserve incumbents. Democrats now want the High Court to determine whether race played a role too large in the drawing.
The case, Bethune-Hill vs. Virginia State Board of Elections, was argued by lawyers of the U.S. Justice Department and by Marc E. Elias, who regularly litigates voting-rights lawsuits on behalf of the Democrats. He was a lawyer for Hillary Clinton’s 2016 presidential campaign. Paul D. Clement, the attorney for the state of Virginia, told the justices that “the 2011 redistricting of the Virginia House of Delegates was a bipartisan success story.” Mr. Clement, who was the U.S. solicitor general in the George W. Bush administration, noted that the establishment of the boundaries of the new “majority-minority” districts was approved by the General Assembly’s Legislative Black Caucus.
The Supreme Court has held that race can’t be the predominant factor in the drawing of electoral lines, and that runs against the concept of “majority-minority” districts.
What the justices could do — though likely won’t — is dispense with race-consciousness entirely as a factor in the creation of legislative districts. Geography and compactness, not race, should be the chief considerations. Deference to race in redistricting has become, in the words of Justice Samuel Alito Jr., “an invitation for litigation.” That’s good business for the lawyers, but bad business for everybody else, both majority and minority.