The Brooding Tensions in
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.
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
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
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
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
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
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?