Testimony of Dale Ho Assistant Counsel, Political Participation Group NAACP Legal Defense and Educational Fund, Inc.

Testimony of Dale Ho Assistant Counsel, Political Participation Group NAACP Legal Defense and Educational Fund, Inc. New York Senate Legislative Task Force on Demographic Research and Reapportionment December 14, 2010

Good morning. My name is Dale Ho, and I serve as Assistant Counsel with the NAACP Legal Defense Fund (LDF). I am honored to appear at this hearing. Founded under the direction of Thurgood Marshall, LDF is the nation s oldest civil rights law firm. The quest for the unfettered political participation of all Americans, particularly here in the State of New York, has been and remains an integral part of LDF s mission. We know from experience that, although the right to vote free from racial discrimination is widely recognized as a constitutionally-protected right, it can be rendered meaningless by redistricting plans that do not fairly reflect minority voting strength. My testimony today will focus on the central role of Section 2 of the federal Voting Rights Act (VRA) in the redistricting process, and will also address major legal developments during the past decade concerning the scope and application of Section 2. Section 2 of the Voting Rights Act As amended in 1982, Section 2 prohibits not only those voting practices that were enacted with racially discriminatory intent, but also, under some circumstances, those that have racially discriminatory effects. 1 For example, the practice known as prison-based gerrymandering the counting of incarcerated individuals where they are held rather than at their last known addresses (where they remain legal residents 2 ) may run afoul of Section 2 because it has demonstrated discriminatory effects. Incarcerated individuals in New York are disproportionately African-American and Latino, 3 but are held in overwhelmingly white areas, 4 such that prison-based gerrymandering undeniably inflates the political power of districts with prisons at the expense of communities of color. The New York legislature therefore deserves commendation for ending that practice in advance of the coming 1 The amended and current version of Section 2 requires consideration of both discriminatory intent and effect, as it prohibits practices imposed or applied... in a manner which results in a denial or abridgment of the right to vote on account of race. 42 U.S.C. 1973(a) (2000 ed.). 2 Article II, Section 4 of the New York State Constitution provides that, [f]or the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his or her presence or absence... while confined in any public prison. See also N.Y. Election Law 5-104(1) ( For the purpose of registering and voting no person shall be deemed to have gained or lost a residence by reason of his presence or absence... while confined in any public prison ). 3 New York State is approximately 68% white, but 77% of its prison population is African-American (51.3%) or Latino (25.9%). See N.Y. STATE DEP T OF CORR. SVCS., HUB SYSTEM: PROFILES OF INMATES UNDER CUSTODY ON JANUARY 1, 2008 i (2008), available at www.docs.state.ny.us/research/reports/2008/hub_report_2008.pdf. 4 In New York, 98% of prison cells are located in disproportionately white State Senate districts. See PETER WAGNER, PRISON POLICY INITIATIVE, 98% OF NEW YORK S PRISON CELLS ARE IN DISPROPORTIONATELY WHITE DISTRICTS (Jan. 17, 2005), available at http://www.prisonersofthecensus.org/news/2005/01/17/white-senate-districts/. When incarcerated individuals are excluded from the current districting plan, seven of New York s 62 State Senate Districts are more than 5% below the ideal average of 306,072. See PETER WAGNER, PRISON POLICY INITIATIVE, IMPORTING CONSTITUENTS: PRISONERS AND POLITICAL CLOUT IN NEW YORK, V, figure 3 (April 22, 2002), available at http://www.prisonpolicy.org/importing/. Of those seven districts, six are over 90% white, while the seventh is more than 80% white. See id. figure 13. 1

redistricting cycle. New York has helped establish an important precedent that we hope will guide the efforts of other states around the country also looking to take corrective action in this area. More pertinent to today s hearing, one of the chief purposes of the 1982 amendments to Section 2 of the VRA was to establish a broad prohibition on what we call minority vote dilution. As set forth in the seminal case Thornburg v. Gingles, 5 minority vote dilution typically involves situations where minority voters have been denied an opportunity to elect a candidate of their choice because the majority in a given district votes as a bloc to minimize or cancel the effectiveness of minority votes, thus effectively locking minority-preferred candidates out of the political process. 6 In the redistricting context, examples of unlawful vote dilution include packing and cracking. Cracking refers to the act of spreading a cohesive group of minority voters across a large number of districts. Cracking can occur where a minority population that could form a majority in a single district is instead split and divided amongst two or more separate districts, thus depriving members of that community of the concentrated voting strength necessary to elect candidates of their choice. The term packing, by contrast, refers to the act of compressing minority communities into a small number of districts, which results in districts that have unnecessarily high minority populations, essentially bleaching adjacent districts of minority influence. Types of Effective Minority Opportunity Districts Before turning to recent legal developments, it is worth pausing for a moment to consider what it means for minority voters to have an equal opportunity to elect candidates of their choice. Broadly speaking, there are essentially three types of districts what we could call effective minority opportunity districts that can be described as providing minority voters with such an opportunity: Majority-minority districts where members of a minority group constitute a numerical majority of a district. Whether such a district constitutes an effective minority opportunity district depends, in large part, on the level of racially polarized voting in a community and racial disparities in registration and/or turnout rates; Crossover districts where members of a minority group, though not a majority of a district, can elect candidates of their choice with support from a small but reliable group of non-minority voters who cross over to support the minoritypreferred candidate; and 5 478 U.S. 30 (1986). 6 Id. at 58. Since Gingles, the Court has explained that actionable minority vote dilution can occur in both an at-large voting system and a districting plan involving single-member districts, where election lines have been drawn in such a way that has the same effect of canceling minority votes. See, e.g., Growe v. Emison, 507 U.S. 25 (1993). 2

Coalition districts where no single minority group constitutes 50% of the district by itself, but where members of multiple minority groups vote cohesively and, together, constitute a majority in the district. These effective minority opportunity districts stand in contrast to another type of district, which can be termed an influence district one where minority voters cannot elect a candidate of their choice, but where they can be described as having a sufficiently large presence so as to have some influence on the political process. Although some commentators have used the terms crossover, coalition, and influence districts interchangeably, it is important to note that there are crucial differences between crossover and coalition districts, on the one hand, and influence districts, on the other. While crossover and coalition districts afford minority voters with an opportunity to elect candidates of their choice, so-called influence districts provide no such opportunity. Indeed, the term influence district is actually quite nebulouslydefined how to define or measure influence on the political process short of an actual ability to elect candidates remains an open question. Such influence districts, therefore, are not and cannot be seen as an effective substitute for effective minority opportunity districts, 7 which have long been and remain the benchmark for providing minority voters meaningful access to the political process in our country. Bartlett v. Strickland Even within the universe of effective minority opportunity districts, however, there are important differences between various types of districts, both in terms of how they operate as a practical matter and how they are treated by courts, as the Supreme Court made clear in decision last year, titled Bartlett v. Strickland. 8 The Bartlett decision addressed the applicability of Section 2 in the context of crossover districts. The lawsuit concerned a state legislative district in the North Carolina House of Representatives, in which African Americans comprised 39 percent of the voting age population and were able, with crossover support from a limited number of white voters, to elect candidates to the state legislature over the last two decades. The Court ruled, in a 5-4 decision, that Section 2 of the Voting Rights Act does not require the creation of crossover districts. Beyond this immediate holding, however, it is important to recognize several other aspects of the Bartlett decision: 7 Indeed, when reauthorizing Section 5 of the VRA in 2006, Congress made clear that influence districts cannot be a substitute for effective minority opportunity districts, by amending the statute to overrule the Supreme Court s contrary holding in Georgia v. Ashcroft, 539 U.S. 461 (2003). See, e.g., Nathaniel Persily, The Promises and Pitfalls of the New Voting Rights Act (VRA), 117 YALE L.J. POCKET PART 139, 165 (2007) ( Ashcroft opened the possibility that under the cloak of influence districts, jurisdictions would create districts in which minorities had no influence at all. [I]t is clear that the bill s ability-to-elect language attempted to remove the possibility of a tradeoff with influence districts. ). 8 129 S. Ct. 1231 (2009). 3

First, the Supreme Court in Bartlett expressly recognized that, even after the election of President Obama, racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have an equal opportunity to share and participate in our democratic processes and traditions. 9 These observations underscore the continuing need to adhere to the requirements of the Voting Rights Act, and should guide the Senate as it approaches the upcoming round of redistricting. Second, given this continuing reality of racial discrimination, Bartlett is not an open invitation to dismantle an existing effective minority opportunity district whether the district is a majority-minority district, a crossover district, or a coalition district. As the Court made clear, such efforts could be deemed motivated by discriminatory purpose and, in turn, could become subject to future challenge under Section 2 as well as the Fourteenth and Fifteenth Amendments. 10 Third, Bartlett did not address the application of Section 2 in the context of coalition districts: whether, for instance, a coalition of African-American and Latino voters who, when aggregated constitute a majority of a proposed district could be entitled to protection under Section 2. 11 To be clear, however, the established law of the Second Circuit, which governs New York, holds that such coalition districts are in fact required by Section 2 under some circumstances. 12 Fourth, although Bartlett held that the creation of crossover districts is not, strictly speaking, required by Section 2 of the VRA, the decision expressly held that state legislatures throughout the country remain free to satisfy their Section 2 obligations by creating such districts. 13 In other words, Bartlett does not prohibit states from creating 9 129 S. Ct. at 1249. 10 Id. ( [I]f there were a showing that a State intentionally drew district lines in order to destroy otherwise effective crossover districts, that would raise serious questions under both the Fourteenth and Fifteenth Amendments. ). This observation is particularly pertinent in light of another Supreme Court case from the last decade, League of United Latin American Citizens v. Perry ( LULAC ), 548 U. S. 399 (2006), which clarified that neither partisan justifications, nor traditional districting principles serve as viable explanations for redistricting plans that result in minority vote dilution. Id. at 440-41. Justice Kennedy s opinion noted that the dismantling of a district just as it appeared that Hispanic voters were on the verge of exercising political power had the mark of intentional discrimination. Id. at 440. 11 129 S.Ct. at 1242-43 ( This Court has referred sometimes to crossover districts as coalitional districts, in recognition of the necessary coalition between minority and crossover majority voters. But that term risks confusion with coalition-district claims in which two minority groups form a coalition to elect the candidate of the coalition's choice. We do not address that type of coalition district here. ). 12 See Bridgeport Coal. for Fair Representation v. City of Bridgeport, 26 F.3d 271, 275 (2d Cir. 1994) rev d on other grounds, 512 U.S. 1283 (1994) (upholding the district court s determination that [c]ombining minority groups to form [majority-minority] districts is a valid means of complying with 2 if the combination is shown to be politically cohesive ). 13 128 S.Ct. at 1248. ( [A] legislative determination, based on proper factors, to create two crossover districts may serve to diminish the significance and influence of race by encouraging minority and majority voters to work together toward a common goal. The option to draw such districts gives legislatures a choice that can lead to less racial isolation, not more. 2 allows States to choose their own method of complying with the Voting Rights Act, and we have said that may include drawing crossover districts. States that wish to draw crossover districts are free to do so where no other prohibition exists. ) 4

affirmative opportunities for minorities to elect a candidate of choice in areas where members of a single minority group do not reach the 50 percent threshold either by creating crossover or coalition districts. Redistricting Reform Proposals This last point bears emphasis in light of a recent development in the Illinois State Senate, which this month passed a statute requiring the creation of crossover, coalition, and influence districts under some circumstances. 14 There is nothing in the Bartlett decision that would prohibit states from creating districts along these lines, but I offer several observations about that legislation and other redistricting reform proposals. First, the touchstone for minority voting rights is an effective opportunity to elect candidates of choice, and not necessarily a hard numeric target in terms of the minority population of a district. 15 Certainly, the law is clear that Section 2 will require the creation of majority-minority districts in many circumstances. But, in those parts of the state where there may not be sufficient population to support the creation of a majorityminority district, it may be appropriate to create effective crossover or coalition districts under some circumstances. Rather than focus solely on specific numeric targets (which are not necessarily meaningful), it is important to determine whether such districts are effective by assessing whether minority voters in those districts would be afforded an equal opportunity to elect candidates of their choice. That analysis requires a careful assessment of minority registration rates, levels of racially polarized voting and general voting patterns within the boundaries of the district. Second, because the determination of whether or not a particular district will afford minority voters an equal opportunity to elect candidates of their choice is, by necessity, a fact-intensive inquiry that will depend on numerous variables on the ground, the adequate protection of minority voting rights during the coming redistricting cycle demands a certain degree of flexibility and discretion for line-drawers. Thus, if the State were to consider legislation specifically requiring the establishment of crossover and coalition districts, those requirements should stand above other statutorily-mandated redistricting criteria that could potentially prevent the promise of broader protections for minority voting rights from becoming a reality. 14 See Illinois Voting Rights Act of 2011, SB 3976. 15 Empirically, the 50% threshold is not a magic number indeed, in many early cases, 50% was insufficient to provide an equal opportunity to elect because minority voters typically lagged in registration and turnout rates. Although the Supreme Court in Bartlett held that a bright-line numerical threshold makes sense in the context of future litigation as a gatekeeping function, it makes little practical sense for line-drawers in the legislative process to treat 50% as talismanic. Whether or not a district provides minority voters a meaningful opportunity to elect candidates of choice turns not on a particular threshold but rather on registration and turnout rates among minority and majority voters and levels of racially polarized voting. 5

The Senate should therefore exercise caution when considering legislation that would create a new redistricting body and/or set forth strict redistricting criteria. 16 While increasing transparency in the redistricting process is a worthy goal, the adoption of stringent statutorily-mandated redistricting criteria for instance, a stricter standard for population deviation than is currently required under federal law could deprive the State of the flexibility that it may need to protect minority voting rights. One need look no further than the previous redistricting cycle and the experience of Arizona and its redistricting commission whose redistricting plan ultimately drew an objection from the Department of Justice under Section 5 of the VRA to see how strict adherence to such criteria may result in violations of federal law and costly litigation. 17 This is not to say that commissions or new redistricting criteria are necessarily a bad idea. Rather, experience has shown that compliance with the Voting Rights Act and the adequate protection of minority voting rights in the redistricting context requires a degree of flexibility, and that a focus on process without equal attention to fair results is not a panacea. Conclusion In conclusion, I offer three observations. First, given the Supreme Court s recognition of the persistence of racial discrimination in voting, legislatures must remain mindful of their obligations under the VRA during the redistricting process. Second, the Senate should avoid redistricting plans that do not maintain existing effective minority opportunity districts regardless of whether those districts are majority-minority, crossover, or coalition districts. The dismantling of any type of effective minority opportunity district could invite liability under Section 2. Third, the Senate should be mindful of opportunities to create new effective minority opportunity districts where there has been population growth in minority communities, even if a particular minority population does not reach a 50% threshold of a proposed district. Coalition districts are of course required by law in the Second Circuit under certain circumstances; and crossover districts will often constitute an effective way to provide minority communities with an equal opportunity to participate in the political process and elect candidates of their choice. 16 LDF has produced a report on Independent Redistricting Commissions which contains a series of recommended principles to govern the creation and operation of such commissions. That report is appended to this testimony as Appendix A, and is available online at http://naacpldf.org/files/publications/irc_report.pdf. 17 In general, redistricting plans that violate the VRA could be subject to litigation. Section 2 cases may be brought by the Attorney General of the United States, who bears primary enforcement responsibility under the Act, or by private individuals and organizations. Redistricting-related litigation can prove both costly and protracted, preventing the implementation of a final plan for several years. Thus, line drawers should seek to comply with this important federal law during the course of redistricting. 6

Appendix A LDF Report on Independent Redistricting Commissions 7

independent REDISTRICTING commissions REFORMING REDISTRICTING WITHOUT REVERSING PROGRESS TOWARD RACIAL EQUALITY a report by THE POLITICAL PARTICIPATION GROUP NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 1

NAACP Legal Defense and Educational Fund, Inc. John Payton, President and Director-Counsel National Headquarters 99 Hudson Street, Suite 1600 New York, NY 10013 212.965.2200 800.221.7822 Fax 212.226.7592 www.naacpldf.org www.thedefendersonline.com LDF s POLITICAL PARTICIPATION GROUP The Political Participation Group s mission is to use legal, legislative, public education, and advocacy strategies to promote the full, equal, and active participation of African Americans in America s democracy. Ryan P. Haygood Co-Director, Political Participation Group Jenigh Garrett Assistant Counsel Kristen Clarke Co-Director, Political Participation Group Dale Ho Assistant Counsel Washington, DC Office 1444 Eye Street NW 10th Floor Washington, DC 20005 202.682.1300 Fax 202.682.1312 2

Introduction Shortly after the 2010 Census, states throughout the country will redraw the lines that determine how to divide the population of each state into electoral districts a process called redistricting. The composition of a district affects election outcomes and determines representation at the federal, state, and local levels. In most states, redistricting is carried out by members of the legislature. But on the eve of the quickly approaching 2010 redistricting cycle, voters and elected officials in a number of states across the country are considering a range of proposals that aim to alter the redistricting process. One such proposal is to create Independent Redistricting Commissions (IRCs). An IRC is a committee composed of appointed officials who assume responsibility for redistricting within a state. Proponents of IRCs argue that transferring responsibility for redistricting from elected officials to appointed commission members will ensure that political motivations and self-interest do not influence the redistricting process. Thus, proponents argue, IRCs will help eliminate political and partisan objectives as a dominant factor in determining district lines. However, our nation s unfortunate history of persistent and adaptive discrimination in the electoral process including redistricting reform efforts that have suppressed minority voting rights, ultimately leading to the enactment of the Voting Rights Act of 1965 (VRA) requires a careful examination of all redistricting reform proposals. LDF s long experience of enforcing the VRA reveals that creating a commission free of dominant political influence should not be the only concern when considering proposals for redistricting reform. IRCs should adhere to and be guided by principles consistent with the VRA. LDF proposes the following principles to better ensure compliance with the mandates of the VRA and to direct the creation of, and work carried out by, Independent Redistricting Commissions: Principle 1: Include language that protects minority voting rights principles in redistricting criteria; Principle 2: Reject redistricting criteria that will hinder the protection of minority voting rights principles; Principle 3: Require the creation of districts where minorities can combine with other groups to have an opportunity to elect candidates of their choice when feasible; Principle 4: Establish a process structured to yield a diverse commission; Principle 5: Include minority perspectives at the planning stage; and Principle 6: Eliminate fairness barriers that dilute minority voting strength. Adhering to these guiding principles will help safeguard against racial discrimination in the creation of IRCs and provide minority groups the opportunity to elect candidates of their choice. Ultimately, these guiding principles will be instrumental in fully realizing the letter and spirit of the Voting Rights Act. 1

What is Redistricting? Redistricting is rooted in our system of government and representation. The United States Constitution requires that each state is represented by two U.S. Senators and that seats in the U.S. House of Representatives be divided among the states. Each state receives a number of seats in the House of Representatives proportionate to its population as recorded Although the reallocation of congressional seats only occurs at the federal level, redistricting occurs at almost every level of government. Local units of government, such as city councils, county commissions and school boards, also redistrict once every ten years to reflect population changes after the Census. The Redistricting Process, Minority Voting Rights and the Voting Rights Act How does redistricting affect minority voting rights? Each decade, some redistricting plans dilute or weaken the ability of minority racial groups to elect candidates of their choice. Redistricting techniques historically employed to dilute minority voting rights include: Cracking fragmenting concentrations of minority population and dispersing them among other districts to prevent minority opportunities to elect candidates of their choice. Stacking combining concentrations of minority population with greater concentrations of white population to prevent minority opportunities to elect candidates of their choice. by the Census conducted. After each Census, the number of seats in the House of Representatives for each state is adjusted depending on whether its population increased or decreased in comparison to other states. States with more people are given more representation in the House of Representatives. This process called reapportionment occurs once every ten years, based on the results of the Census. After reapportionment, each state is divided into districts for the election of federal representatives. If the Census results for a particular state show that the number of representatives previously allotted to such state should change or that the population within existing electoral districts should be adjusted, the electoral districts must be redrawn. The process of redrawing the lines of an electoral district after reapportionment is called redistricting. Packing over-concentrating minorities in as few districts as possible to minimize the number of districts in which minorities constitute a numerical majority (referred to as majority-minority districts ). These techniques result in the dilution of minority voting strength, since minorities are not able to elect as many candidates to office as they could if the districts were drawn in a fair way. How does the Voting Rights Act prevent minority vote dilution? The Voting Rights Act has two important provisions which prohibit weakening voting strength: Section 2 and Section 5. 2

Does the creation of an IRC guarantee the protection of minority voting rights? Unfortunately, IRCs do not guarantee a process or final redistricting plan that will protect minority voting rights. Indeed, during the 2000 redistricting cycle, the redistricting plan adopted by an IRC in Arizona resulted in an objection under Section 5 of the Voting Rights Act. Section 2 prohibits practices that intend to or result in the denial or abridgement of the right to vote on account of race, color, or status as a language minority. A violation of Section 2 is established if, based on the totality of circumstances, it is shown that voting practices are not equally open to participation by minorities. Hence, voting practices that limit the chance of minority voters to elect the candidates of their choice violates Section 2. Section 5 requires all or part of 16 covered jurisdictions with a history of discrimination in voting practices to submit changes to voting laws, rules, or procedures to the federal government for preclearance, a review process designed to make sure that proposed voting changes in these jurisdictions are not racially discriminatory. Voting practices that violate Section 5 are prevented from being enforced in the covered jurisdictions. Independent Redistricting Commissions (IRCs) How common are IRCs? Almost half of states throughout the country have an IRC participating in the redistricting process. IRCs have varying forms some are a subset of the legislature; some serve as a fail-safe alternative if the legislature cannot agree; and others advise the legislature in its redistricting process. However, only Arizona and California have IRCs that completely exclude elected officials from the process. Other states, such as Iowa, Idaho, Montana, and Washington, have a commission that involves elected officials at some point during the redistricting decision-making process. The opportunity for minority communities to elect candidates of their choice can be, and often is, dramatically affected by the drawing of district lines. Hence, while redistricting proposals calling for the creation of IRCs may be meant to cure the perceived partisan or incumbency problems with the existing composition of redistricting bodies (by replacing elected officials with appointed ones), they merely shift the focus from districts designed to aid the election of a particular party or candidate to districts that do not favor a particular party or candidate. If an IRC proposal does not adequately safeguard minority voiting rights, redistricting criteria can harm minority voters. In fact, some IRC proposals have included stringent criteria that frustrate the application of Voting Rights Act principles. Proposed IRC Guiding Principles to Prevent Minority Vote Dilution IRCs must not only consider eliminating partisan influences when drawing district lines but also (1) guarantee that districts are drawn in compliance with Section 2 and Section 5 of the Voting Rights Act and (2) contain guidelines consistent with the Voting Rights Act. LDF proposes the following principles to assist IRCs in carrying out their redistricting responsibility in compliance with the Voting Rights Act. Principle 1: Include Languate That Protects Minority Voting Rights Principles in Redistricting Criteria Some IRC proposals provide criteria designed to limit political gerrymandering. To that end, these proposals require that IRCs attempt to create districts that are fair, competitive, balanced, or drawn without favoring one party or an incumbent. But this guideline often results in the overreliance on stringent criteria to restrict the creation 3

of maps in which one political party dominates specific legislative districts or to insure that incumbents do not have to face competition. Overreliance on stringent criteria, however, can directly impact the ability of a minority group to elect a candidate of their choice. An IRC would not create meaningful redistricting reform if the resulting districts would not preserve or ensure the equal opportunity of minority voters to elect the candidate of their choice. It is critical, therefore, that the principles of Sections 2 and 5 of the Voting Rights Act are properly reflected by including language that reflects both the letter and the spirit of the Act. At the same time, partisan dominance or neutrality should not be an overriding goal of an IRC proposal or those drawing redistricting plans. Principle 2: Reject Redistricting Criteria That Will Hinder the Protection of Minority Voting Rights Principles IRC proposals that require strict compliance with mandatory criteria could harm minority voters. In theory, mandatory criteria are intended to prevent the creation of gerrymandered districts. In practice, however, even districts that do not appear gerrymandered may produce grossly distorted results. Indeed, a redistricting plan that rigidly complies with criteria designed to appear less partisan may actually be fundamentally unfair to the voters living in the area. To combat this result, IRC proposals must allow the flexible application of redistricting criteria and exclude criteria that would hinder compliance with Voting Rights Act principles. Flexibility will help protect minority voting rights by reinforcing the need to carefully balance attempts to eliminate the political aspects of redistricting with the importance of ensuring that minority voting rights are protected. It can also protect against a process overlyfocused on partisan or incumbency gerrymandering, which could turn a purported measure of reform into a measure of regression. Principle 3: Require the Creation of Districts Where Minorities Can Combine with Other Groups to Have an Opportunity to Elect Candidates of Their Choice When Feasible Even when a group of racial minorities do not constitute a majority of a district, district lines can be drawn to allow multiple groups such as African Americans and Latinos to aggregate their votes and elect their desired representative. Redistricting officials should protect the political power of all minority voters by creating districts that allow cohesive groups, regardless of their individual racial background, to be joined together. An independent redistricting commission proposal that encourages such functional coalition opportunities for minorities to elect a candidate of their choice can help create a more inclusive democratic process. Principle 4: Establish a Process Structured to Yield a Diverse Commission One rarely discussed benefit of leaving the redistricting process in the hands of elected officials is that, to the extent that they are fairly constituted and representative bodies, they were elected by communities identified during the previous redistricting cycle. During the 2000 redistricting cycle, elected minority officials played a significant role in the redistricting decision-making process for the first time. Given that minority participation in the redistricting process is a relatively recent phenomenon, jurisdictions should proceed cautiously before adopting IRCs that would remove responsibility for redistricting entirely away from duly elected representatives (and, as a result, the minority groups whose interests they represent) and place it into the hands of a few individuals who are not subject to public accountability for their actions. Thus, it is important that an IRC be diverse and representative, fairly created, and responsive to minority interests. 4

Principle 5: Include Minority Perspectives at the Planning Stage It is difficult to shoehorn minority voting rights principles into an IRC framework when substantial input and involvement from individuals and organizations that have historically advocated for minority voters interests are not included when preliminary decisions are made. When redistricting commissions are first being considered, reformers must meet with minority voting rights advocates to resolve and address issues that may arise in the establishment of a commission and to ensure the maintenance of long-standing traditional redistricting criteria aimed at protecting minority voting rights. In this way, protection of minority rights can be incorporated into all aspects of the proposal at the ground level. Principle 6: Eliminate Fairness Barriers That Dilute Minority Voting Strength Most recent IRC proposals have failed to address two recognizable fairness barriers for minority voters: (1) the census miscount of prisoners, and (2) felon disfranchisement laws. Although rarely discussed in the context of redistricting, these two barriers significantly reduce the voting strength of minority communities during the redistricting process. Correcting both of these problems is an important step in creating a redistricting process that is fair to all voters. Miscounting prisoners as residents of municipalities where they are confined and not as members of their preincarceration communities must be addressed in any redistricting proposal that strives to reform the redistricting process. Because prisoners are counted as residents of the districts where they are incarcerated, Census data artificially inflate the population of districts in which prisons and jails are located, and artificially deflate the population of districts prisoners lived in prior to their incarceration. Since many prisoners reside in low-income, urban communities with high concentrations of racial minorities before entering the criminal justice system, this method of counting results in improperly low population counts of communities of color, which in turn can decrease the number of government representatives allotted to such communities during the redistricting process. This distorts the one person, one vote principle, dilutes the voting strength of prisoners home communities and, consequently, weakens the voting strength of communities of color. In order to prevent the dilution of minority voting strength, IRCs and other proposed redistricting reform measures must include corrective action to address the erroneous designation by the Census of prisoners residences. Felon disfranchisement laws work hand in hand with the miscount of prisoners to dilute the voting strength of minority voters even further. Today, 5.3 million Americans cannot vote because of a felony conviction. Because America s fractured criminal justice system and disproportionate policing and imprisonment repeatedly align along the lines of race and class, felon disfranchisement laws result in the exclusion of vastly disproportionate percentages of racial minorities from the electorate. Legislatures of many states intended this result when they adopted felon disfranchisement laws after the Civil War as a reaction to the inclusion of Blacks as voters. Correcting the census miscount of prisoners can only be fully corrected by allowing prisoners to vote, either absentee or on a machine, with voters in their home district. IRCs attempting to redraw district boundaries should correct this disparity. Conclusion Future redistricting cycles must be fair. With so much at stake, redistricting reform efforts, including calls for IRCs, must ensure that protections afforded by the Voting Rights Act are respected and minority voting rights are safeguarded. Minority voting rights must not become a casualty of efforts to create districts with a hypothetical increase in partisan neutrality, fairness, or competiveness. All redistricting proposals must (1) ensure that commissions are diverse (in reality, not just aspiration); (2) include lanaguage requiring full compliance with both the letter and the spirit of the Voting Rights Act; and (3) establish and promote the protection of minority voting rights as state law. 5

The NAACP Legal Defense and Educational Fund is America s legal counsel on issues of race. Through advocacy and litigation, LDF focuses on issues of education, voter protection, economic justice and criminal justice. We encourage students to embark on careers in the public interest through scholarship and internship programs. LDF pursues racial justice to move our nation toward a society that fulfills the promise of equality for all Americans. Reforming Redistricting Without Reversing Progress Toward Racial Equality 6