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Richmond Times

The Brooding Tensions in Redistricting Law
By Mark Rush
March 28, 2002

Judge Pattisall's decision to declare the Virginia legislative and senate districts unconstitutional exposes the brooding tensions-if not contradictions-within voting rights law.

Redistricting and voting rights law have become such a thicket of regulations and constraints that virtually no districting scheme is likely to avoid legal challenge. States must abide by the Voting Rights Act requirements that districts be drawn to create reasonable opportunities for minority representation. They must not be too zealous in seeking to create such opportunities, however, because doing so will run afoul of the 14th Amendment. While there are no federal constitutional requirements concerning compactness and contiguity, there are state-level ones that allow districting plans to be challenged in state courts.

The current controversy in Virginia is based on a strange admixture of concerns about minority representation and the preservation of communities of interest. Until now, it was often necessary to create districts that were comprised of close to 60% minority voters to ensure that they would have a real chance of electing a representative of their choice. Now, it is argued, it is unnecessary to pack that many minority voters into a district because our minority legislators claim that they can draw support across racial lines.

At first this sounds wonderful. It suggests that the Voting Rights Act actually has broken down some of the racial barriers it was designed to remove. On the other hand, it might mean nothing more than that our minority incumbents are able to draw support across racial lines because of their strong records of constituency service and legislative initiatives.

This raises a disturbing question: While Henry Marsh or Bobby Scott or Louise Lucas might be able to win in a district that is comprised of only, say, 48% or 50% black voters, would a rookie minority candidate be able to do so should any of our incumbent legislators retire?

Confident minority rights advocates might argue that this is a risk we must take to advance the long run interests of minority voters. But, in the short run, it risks leaving minority voters without a voice should any of our minority incumbents retire. Would the Voting Rights Act conscience such a risk?

With regard to district shape and community of interest, it is pretty obvious several of the house and senate districts in the Tidewater area seem to have been drawn with the interests of boaters as well as voters in mind. But, one wonders why the current challenge to the district lines focused only on the eastern part of the state. Creigh Deeds' 25th senate district starts north of Charlottesville and follows I-64 to the West Virginia border. It splits Rockbridge County in half and neatly wraps around Lexington. Anyone familiar with Afton Mountain will tell you that this district is "contiguous" only if one has 24/7 access to fog lights and a snow plow. The challenge to the districting plan made no mention of this one.

Thus, there is a bitter irony to the development of redistricting law and the prevailing interpretation of the 14th Amendment. The importance of district shape depends on who benefits from the district. We can draw bizarre districts that cross mountains, but crossing water is a problem. We can draw districts to preserve Irish or Italian or Polish communities of interest. We can draw them to preserve urban or rural communities of interest. But if we draw them to accommodate black or Hispanic voters, controversy erupts. Obviously, there is something wrong with the prevailing interpretation of the 14th Amendment if it allows a bizarre district to be drawn to protect the Irish when a similar one that is one drawn to protect black voters is constitutionally suspect

One way to resolve (or, at least, defuse) the decennial redistricting controversy would be to employ multimember districts once again. Virginia used them just a couple of decades ago and states such as Georgia and North Carolina continue to use them for their state legislative elections.

Like any other political arrangement, multimember districts have their fair share of shortcomings and are criticized mainly by folks who have a vested interest in the status quo. But, the status quo currently entails bizarre districts, racially charged political wrangling and expensive litigation. If we were to draw fewer legislative districts that were represented by 3 or 4 delegates or 2 or 3 senators, there would be correspondingly fewer district borders to fight about. If other states can do this, why can't Virginia? If it makes politics less partisan, more peaceful and makes the districting process less controversial, why not give it a try?

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