The Voting Rights Act of 1965 is the crown jewel of both election and civil rights law. Measured by stated intentions and actual results, the VRA is also one of the very best laws ever devised. Nevertheless, the VRA’s unquestioned success at achieving noble ends should not shield it from consistent and searching inquiry into its partisan implications. Broadly stated, the VRA is an election law, which, for partisans, can be the Devil’s Playground.

The latest round of redistricting offers strong evidence that the 2006 Voting Rights Act Reauthorization Act (“VRARA”) has forged a weld with partisan interests. To be sure, groaning over the partisan consequences of the VRA is old sport.  Some Democrats (and scholars) blamed the VRA and the Bush I DOJ for the GOP takeover of Congress in 1994. I concede that lawmakers will continually shape and reshape the VRA to match their partisan desires. My critique is different: we have reached a point where the success of the law and the success of a political party are seen as one. 

As interpreted and enforced, the VRARA conflates the political strength of the Democratic Party with the voting strength of minority communities. In other words, a law’s possible effect on racial and language minorities is weighed by the law’s possible effect on the electoral chances and power of Democrats. Laws that Republicans pass to (potentially) hinder Democrats are also laws that Republicans pass to (potentially) hinder minority voting strength and political The VRARA directly bars the latter, indirectly barring the former too.

 That is not surprising. Racial and language minorities (with a few notable exceptions) overwhelmingly associate with and support the Democratic Party. Party and community interests align in many ways.

 It is also not entirely unprecedented (or per se nefarious) for lawmakers to tether partisan success to voting and election laws.  Many Reconstruction laws protected minority and Republican voters at the same time. But we should be honest about the partisan goals or implications of the VRARA.

 REDISTRICTING RULES

Pursuant to the VRARA, lawmakers in Section 5 jurisdictions must redistrict in a way that explicitly favors Democrats. The lawmakers must create as many minority-majority districts as it can, while also taking care not to disassemble any districts that minority voters play a large role in electing the candidate. Stated differently, new Democratic minority-majority districts must be drawn, if possible, and old Democratic minority-majority, influence, cross-over, and coalition districts must be preserved.  This gives Democrats a certain permanent baseline number of districts. More is acceptable; less is forbidden.  

The partisan implications are obvious. Illinois Democrats can do to Illinois Republicans what Texas Republicans cannot do to Texas Democrats.

 Fortunately, the United States Supreme Court in Bartlett v. Strickland rejected a similar attempt to give Section 2 of the VRARA the same built-in partisan baseline.

 My hunch is that a thorough review of the latest redistricting will show that the VRARA has become a largely partisan tool. In states with Democratic control, the VRARA likely played little role in restricting lawmakers. Lawmakers in Republican-controlled states, however, probably felt (or were forced to feel) the VRARA’s tight reins 

I saw this firsthand in Nevada. I represented a Hispanic group loosely affiliated with the state GOP’s efforts to maximize the number of minority-majority Hispanic districts. The Democrats controlled both houses of the Legislature, but we had a Republican (Hispanic) Governor.  The two sides reached no agreement, and we went to court.

The Democrats attempted to maximize the number of Hispanic “influence” districts, which also maximized the number of Democratic districts.  Republicans believed that the VRARA and traditional districting principles mandated the creation of additional minority-majority districts.  Democrats cried foul.  To them, the VRARA had no role in Nevada. They castigated GOP lawmakers as proponents of racial gerrymandering who used the VRARA as pretext for partisan racism. Tellingly, civil rights groups remained apart, taking no side. 

In the end, the Court districts largely sided with the Democratic arguments about the requirements of the VRARA, even if the resulting districts differed sharply from what the Democrats wanted. The Court created no new majority-minority districts, and it dismantled those that already existed. Every single district that had an elected Hispanic representative saw a drop in the Hispanic voting age population. One Hispanic legislator was likely drawn out of his district.

 The Court was able to do this because it found that racially polarized voting did not exist in Nevada. As such, there could be no Section 2 claim under the VRARA.  Democrats had strongly argued for both results.

There is no chance that Republicans in Texas could have done what Democrats in Nevada tried to do to the Hispanic population.

SO WHAT?

The VRA now has obvious partisan implications. While I fervently believe equating partisan success with minority voting rights and power is bad law, I can’t say that the position is crazy or that the result is unexpected.  

 Trying to completely excise the VRARA from partisan politics would be naive. But we should not lie about the law. We do not defile the VRA by admitting the reality of how it operates. Rather than hide the ball, we should embrace the debate. If the law’s partisan realities make it less popular or more constitutionally suspect, so be it. We are all better off with an open debate. 

The Voting Rights Act of 1965 is the crown jewel of both election and civil rights law. Measured by stated intentions and actual results, the VRA is also one of the very best laws ever devised. Nevertheless, the VRA’s unquestioned success at achieving noble ends should not shield it from consistent and searching inquiry into its partisan implications. Broadly stated, the VRA is an election law, which, for partisans, can be the Devil’s Playground.

The latest round of redistricting offers strong evidence that the 2006 Voting Rights Act Reauthorization Act (“VRARA”) has forged a weld with partisan interests. To be sure, groaning over the partisan consequences of the VRA is old sport.  Some Democrats (and scholars) blamed the VRA and the Bush I DOJ for the GOP takeover of Congress in 1994. I concede that lawmakers will continually shape and reshape the VRA to match their partisan desires. My critique is different: we have reached a point where the success of the law and the success of a political party are seen as one. 

As interpreted and enforced, the VRARA conflates the political strength of the Democratic Party with the voting strength of minority communities. In other words, a law’s possible effect on racial and language minorities is weighed by the law’s possible effect on the electoral chances and power of Democrats. Laws that Republicans pass to (potentially) hinder Democrats are also laws that Republicans pass to (potentially) hinder minority voting strength and political The VRARA directly bars the latter, indirectly barring the former too.

 That is not surprising. Racial and language minorities (with a few notable exceptions) overwhelmingly associate with and support the Democratic Party. Party and community interests align in many ways.

 It is also not entirely unprecedented (or per se nefarious) for lawmakers to tether partisan success to voting and election laws.  Many Reconstruction laws protected minority and Republican voters at the same time. But we should be honest about the partisan goals or implications of the VRARA.

 REDISTRICTING RULES

Pursuant to the VRARA, lawmakers in Section 5 jurisdictions must redistrict in a way that explicitly favors Democrats. The lawmakers must create as many minority-majority districts as it can, while also taking care not to disassemble any districts that minority voters play a large role in electing the candidate. Stated differently, new Democratic minority-majority districts must be drawn, if possible, and old Democratic minority-majority, influence, cross-over, and coalition districts must be preserved.  This gives Democrats a certain permanent baseline number of districts. More is acceptable; less is forbidden.  

The partisan implications are obvious. Illinois Democrats can do to Illinois Republicans what Texas Republicans cannot do to Texas Democrats.

 Fortunately, the United States Supreme Court in Bartlett v. Strickland rejected a similar attempt to give Section 2 of the VRARA the same built-in partisan baseline.

 My hunch is that a thorough review of the latest redistricting will show that the VRARA has become a largely partisan tool. In states with Democratic control, the VRARA likely played little role in restricting lawmakers. Lawmakers in Republican-controlled states, however, probably felt (or were forced to feel) the VRARA’s tight reins 

I saw this firsthand in Nevada. I represented a Hispanic group loosely affiliated with the state GOP’s efforts to maximize the number of minority-majority Hispanic districts. The Democrats controlled both houses of the Legislature, but we had a Republican (Hispanic) Governor.  The two sides reached no agreement, and we went to court.

The Democrats attempted to maximize the number of Hispanic “influence” districts, which also maximized the number of Democratic districts.  Republicans believed that the VRARA and traditional districting principles mandated the creation of additional minority-majority districts.  Democrats cried foul.  To them, the VRARA had no role in Nevada. They castigated GOP lawmakers as proponents of racial gerrymandering who used the VRARA as pretext for partisan racism. Tellingly, civil rights groups remained apart, taking no side. 

In the end, the Court districts largely sided with the Democratic arguments about the requirements of the VRARA, even if the resulting districts differed sharply from what the Democrats wanted. The Court created no new majority-minority districts, and it dismantled those that already existed. Every single district that had an elected Hispanic representative saw a drop in the Hispanic voting age population. One Hispanic legislator was likely drawn out of his district.

 The Court was able to do this because it found that racially polarized voting did not exist in Nevada. As such, there could be no Section 2 claim under the VRARA.  Democrats had strongly argued for both results.

There is no chance that Republicans in Texas could have done what Democrats in Nevada tried to do to the Hispanic population.

SO WHAT?

The VRA now has obvious partisan implications. While I fervently believe equating partisan success with minority voting rights and power is bad law, I can’t say that the position is crazy or that the result is unexpected.  

 Trying to completely excise the VRARA from partisan politics would be naive. But we should not lie about the law. We do not defile the VRA by admitting the reality of how it operates. Rather than hide the ball, we should embrace the debate. If the law’s partisan realities make it less popular or more constitutionally suspect, so be it. We are all better off with an open debate.