Nonpartisanship, Competition and Minority Voting Rights

1. Nonpartisanship, Competition and Minority Voting Rights Nate Persily Penn/Stanford Law School npersily@law.upenn.edu

2. Macrotensions • Competitiveness v. Representation v. Governance • Guaranteed outcomes (“fair” or “adequate” representation for parties, groups, candidates) v. uncertainty/responsiveness due to competitiveness • “Intentional” districting (whether to create minority districts, competitive districts, or represent communities of interest) v. nonpartisanship • “Traditional districting principles” v. district-level competitiveness and Plan Representativeness

3. The Alleged Competition – Minority Representation Tradeoff • The intentional creation of minority opportunity districts often leads to non-competitive minority districts and an increase in the number of non-competitive white districts. • Maximization of the number of competitive districts often leads to • less descriptive and/or substantive representation for minorities. • Racially polarized elections.* • Caveat – Minority-supported Democratic gerrymanders (see debate over GA v. Ashcroft)

4. The Implications of Nonpartisan Districting for Minority Influence • Process – membership on nonpartisan redistricting commissions often is drawn from disproportionately white candidate pools (e.g., the state judiciary) • Substance – ignoring partisanship and incumbency while complying with the Voting Rights Act often leads to: • Packing of minority districts (because the plan cannot account for districts in which minority incumbents might win with lower minority percentages) • Pairing of minority incumbents (GA example)

5. Traditional Districting Principles* and Minority Influence • Compactness • Under conditions of residential segregation, compact districts often dilute through packing. • Under conditions of integration/dispersion, leads to dilution through cracking. • Respect for Political Subdivision Lines • City lines often drawn intentionally to segregate, therefore respecting such lines often leads to packing. • Sometimes minority community exists on city border so respect for such principle leads to cracking. • Whites who live in cities with high concentrations of racial minorities are disproportionately Democrats and Republicans are more efficiently dispersed in suburbs and rural areas; therefore, drawing districts that comply with the VRA and respect subdivisions often packs Democrats.

6. Party Interest, Self-interest, and Minority Group Interest • Both parties often have incentives to dilute the minority vote: Republicans through packing and Democrats through cracking. • The interests of the Democratic Party, its incumbents (both minority and white), and minority voters often do not coincide. • The more that party coincides with race, the more that partisan gerrymanders exist as racial gerrymanders and that claims of racial vote dilution resemble and serve as proxies for arguments about unfair treatment of Democrats.

7. Related Legal Questions • Post-GA v. Ashcroft could Section 5 of the VRA require the maintenance of a Democratic gerrymander? • Does Section 2 of the VRA require the creation of Democratic influence districts? • When party and racial group interests overlap does Easley mean the end of Shaw? • Does the systematic targeting of white Democratic incumbents (as alleged in the TX case) violate Shaw or Equal Protection more generally?