Using County Clusters in LA

[muon2]

Moderator's note: This thread was split from the original thread on urban county clusters. The discussion on the impact of the VRA with county clusters in LA is worth its own thread, particularly in light of the lawsuit over LA-02.

Here's a look at the impact of urban county clusters on the VRA using LA. The rule I'm using requires that the VRA district be entirely within one region. None of the clusters has sufficient black population for a 50% BVAP CD on their own. The largest concentration is in the New Orleans cluster and it needs to be represented by two districts anyway. So the only option is to merge clusters to get sufficient BVAP.

In the first example New Orleans is grouped in a region with Houma and Lafayette. The VRA district comes from parts of the New Orleans and Lafayette clusters leaving Houma intact. In order to make the VRA district there are three chopped counties used to bridge between whole counties which violates our generally agreed districting rules. Also, it is not possible to drive from one end of CD 3 to the other without crossing into CD 2, which I think open the door to too much gerrymandering.



In the second example a region is made from the New Orleans and Baton Rouge clusters. Except for the VRA CD the other CDs in the region follow the urban county clusters. The effect is that the Baton Rouge cluster has one extra CD in it. There is now only one chopped county used as a bridge. All districts are internally connected by road, except for Grand Isle at the southern end of Jefferson, but that is because it isn't connected to anything else in its county.




I would suggest that the VRA rule be: All federal laws shall be followed including the VRA. A district required by the VRA shall be embedded in only one region, and in such a way as to violate as few of the other criteria as practicible.

[Torie]

Still stuck on regions as some sort of rule rather than a convenience tool. I still don't understand that, and don't agree with that. Absent the regional rule (whatever the regions are for LA), would that make Muon2's map any less erose? Or by "regions" here do we just mean the multi county urban areas?

The black CD in the first map is a mouthful, and I think probably a map killer inasmuch as the second map suggests it is possible to draw something far less offensive and meet the VRA requirements. And do the VRA requirements really dictate that a NO CD suck up the black precincts of Baton Rouge?  Are NO and BR one community of interest?  I tend to doubt it. Heck the each have their own urban cluster.  I tend to doubt the first map's black CD is required by the VRA either as one community of interest.

[muon2]

Still stuck on regions as some sort of rule rather than a convenience tool. I still don't understand that, and don't agree with that. Absent the regional rule (whatever the regions are for LA), would that make Muon2's map any less erose? Or by "regions" here do we just mean the multi county urban areas?

The black CD in the first map is a mouthful, and I think probably a map killer inasmuch as the second map suggests it is possible to draw something far less offensive and meet the VRA requirements. And do the VRA requirements really dictate that a NO CD suck up the black precincts of Baton Rouge?  Are NO and BR one community of interest?  I tend to doubt it. Heck the each have their own urban cluster.  I tend to doubt the first map's black CD is required by the VRA either as one community of interest.

I think regions are a bit of both rule and tool. I see them as containers that have certain properties. By holding a near integer number of districts with whole counties they move a plan towards the goal of reducing chops. By restricting transfers of population between regions they restrict certain forms of gerrymandering along the same philosophy as the MI rules. By embedding urban clusters wholly within regions it recognizes a metro community of interest. I would add containment of VRA districts to properties that regions as another form of CoI. It becomes a way of showing that a plan has met various constraining criteria.

LA certainly saw fit to draw a black-majority CD as part of its plans, and it was the first state to pass preclearance. Nola has to connect to either BR or Lafayette to make 50% BVAP (it's also possible to make one that avoids Nola by linking BR to other urban centers somewhat like NC-01.) There's no no way to know what would have happened if no BVAP-majority CD was constructed, but I suspect it would not have fared well for the state.

[jimrtex]

Here's a look at the impact of urban county clusters on the VRA using LA. The rule I'm using requires that the VRA district be entirely within one region. None of the clusters has sufficient black population for a 50% BVAP CD on their own. The largest concentration is in the New Orleans cluster and it needs to be represented by two districts anyway. So the only option is to merge clusters to get sufficient BVAP.

In the first example New Orleans is grouped in a region with Houma and Lafayette. The VRA district comes from parts of the New Orleans and Lafayette clusters leaving Houma intact. In order to make the VRA district there are three chopped counties used to bridge between whole counties which violates our generally agreed districting rules. Also, it is not possible to drive from one end of CD 3 to the other without crossing into CD 2, which I think open the door to too much gerrymandering.



In the second example a region is made from the New Orleans and Baton Rouge clusters. Except for the VRA CD the other CDs in the region follow the urban county clusters. The effect is that the Baton Rouge cluster has one extra CD in it. There is now only one chopped county used as a bridge. All districts are internally connected by road, except for Grand Isle at the southern end of Jefferson, but that is because it isn't connected to anything else in its county.




I would suggest that the VRA rule be: All federal laws shall be followed including the VRA. A district required by the VRA shall be embedded in only one region, and in such a way as to violate as few of the other criteria as practicible.

I think you are adjusting your regions to fit your VRA districts, and then you are cheating on the rules to draw the VRA district, by placing the whole counties but connecting squiggly lines in the 3 larger counties.

It first seems reasonable to identify any sub-county regions that are used for districts (in advance).   In Minnesota, counties and townships can be used, with perhaps an adjustment to place all of city in a single county (eg St. Anthony would be treated for redistricting purposes as if it were entirely in Hennepin County).   Larger cities should also be divided into neighborhoods.  That we delineate neighborhoods in Minneapolis does not imply that Minneapolis will be divided, any more than that Cottonwood County has townships.  The neighborhoods in Minneapolis could also be used for legislative districts.   It is not desirable that these neighborhoods have equal population.  Communities of interest do not come in quantum units.  And if they are all the same size, it is hard to combine to get a particular population.  So city council districts should not be used, which also avoids the possibility that they were drawn for political purposes.

In Michigan much the same rules can be used, though in that case, Detroit must be divided.  

Ohio probably needs more work, since cities extensively cross county boundaries, some cities incorporate townships, and others do partially.

Louisiana doesn't have defined townships. but the Public Land Survey System exists in most of the state, and the prime meridians and townships are defined, so that townships could be constructed.

These could then be refined.  The first step would to conform them to county boundaries.  Then  partial townships (eg less than 10 sections), or with few residents (eg less than 200) could be merged.  Boundaries could be adjusted to follow rivers or ridge lines.  Road connectivity could be considered (eg if education were being provided on a township basis, would an extreme bus route be needed.   Towns above a certain size could be elevated to township status, or perhaps absorb the surrounding area.

A VRA district could be constructed from these smaller redistricting units.  They need not be contiguous.   Then simply remove that territory and population from the state, as if the areas were depopulated, and then redistrict the remainder of the state.

[Torie]

You are quite confident that Baton Rouge and New Orleans blacks will be viewed as one community of interest Muon2 for VRA purposes?  We agree don't we, that we only draw majority minority CD's when the VRA actually requires it right?  Which raises another question. What does one do where the law is unclear as to whether a majority minority CD is required?

If the VRA does require such a CD, you certainly did the best you could given the geography. It is much better than that elongated affair which was your alternative.

[muon2]

You are quite confident that Baton Rouge and New Orleans blacks will be viewed as one community of interest Muon2 for VRA purposes?  We agree don't we, that we only draw majority minority CD's when the VRA actually requires it right?  Which raises another question. What does one do where the law is unclear as to whether a majority minority CD is required?

If the VRA does require such a CD, you certainly did the best you could given the geography. It is much better than that elongated affair which was your alternative.

I would err on the side of history with the VRA. If there has been a past finding that a minority group had the type of bloc voting for and against its preferred candidates, then absent any new detailed analysis (such as by the CA commission) or court decision I would presume that those parts of Gingles were still met. The court has been less clear about what constitutes compact for the purposes of the VRA, but my sense is that the court takes a broad view of compactness, only throwing out a district when the shape or extent could be replaced by a more reasonable one. The need for 50% within a compact area is the court standard, and in LULAC the court threw out the district because a less extensive district that didn't combine communities separated by 300 miles was available to the mappers.

[Torie]

You are quite confident that Baton Rouge and New Orleans blacks will be viewed as one community of interest Muon2 for VRA purposes?  We agree don't we, that we only draw majority minority CD's when the VRA actually requires it right?  Which raises another question. What does one do where the law is unclear as to whether a majority minority CD is required?

If the VRA does require such a CD, you certainly did the best you could given the geography. It is much better than that elongated affair which was your alternative.

I would err on the side of history with the VRA. If there has been a past finding that a minority group had the type of bloc voting for and against its preferred candidates, then absent any new detailed analysis (such as by the CA commission) or court decision I would presume that those parts of Gingles were still met. The court has been less clear about what constitutes compact for the purposes of the VRA, but my sense is that the court takes a broad view of compactness, only throwing out a district when the shape or extent could be replaced by a more reasonable one. The need for 50% within a compact area is the court standard, and in LULAC the court threw out the district because a less extensive district that didn't combine communities separated by 300 miles was available to the mappers.

Gingles set forth this test of compactness: "the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district."

The above definition could be interpreted as suggesting that any single member CD, no matter how erose, must be drawn if the 50% mark is met for the subject minority population. That possible interpretation was rejected in 1996 by SCOTUS in Shaw v Hunt, wherein the court in throwing out a second black CD in North Carolina which was hideously erose, stated:

"District 12 could not remedy any potential section 2 violation...a plaintiff must show that the minority group is 'geographically compact' to establish section 2 liability. No one looking at District 12 could reasonably suggest that the district contains a 'geographically compact' population of any race...Therefore where that district sits 'there neither has been a wrong nor can be a remedy.'"

Hunt was not a case where it was possible to draw a less erose second black CD. Rather it was about a situation where given that to get a second black CD, the only way to do it was with great erosity, that violated the equal protection clause. A second black CD requiring great erosity, simply cannot be drawn at all. It is racial gerrymandering.

This spin on the compactness test was reiterated by SCOTUS as recently as 2009 in Bartlett v. Strickland, wherein the Court stated the first prong of the Gingles test as:

“a large and geographically compact minority population, is the condition for demonstrating for demonstrating that a dilutive plan injures the Section 2 plaintiffs by failing to draw an available remedial district that would give them a chance to elect their chosen candidate.” (Emphasis added.)

So looking at the racial map at the bottom of this post, do you think the black population in the VRA black CD that you drew "geographically compact?" Yes, it is more compact that the bite the dust NC-12 at issue in Hunt, but is it compact enough to be required to be drawn under the Hunt and Strickland characterizations of the first prong of Gingles, even if not necessarily itself illegal under the equal protection clause?

I do appreciate that the standard of compactness is not crystal clear, but a couple of factors substantially weaken your case, which lead me to conclude that it is substantially more likely than not that the VRA would not be interpreted to require such a CD, any more than it would be interpreted to require a black CD in Cleveland to go down to Akron. What are those two factors undermining your case?  

The first factor is that the black population is not contiguous.  One might sort of claim that it is given the few elongated black precincts along the banks of the Mississippi, but in reality the black population in the CD is divided at the south end by the white burbs and the Garden district of New Orleans, and at the north end, by the southern Baton Rouge white precincts.

The second factor is that your CD slashes through jurisdictions, and population wise is a barbell, with one black node in NO, and the other in Barton Rouge, two separate urban clusters, two separate towns, with rural areas in between. In that regard, a pending case wherein a judge upheld an erose black supervisorial district within a county (Fayette County, GA), and is under appeal, the precise issue is whether or not the minority drawn district is sufficiently compact. I strongly suspect that more erosity will be tolerated that is within a given county or municipality, even if the minority population is not contiguous, than a CD that slashes and burns its way from one minority population node to another in a different metro area, with nothing much but alligators and bayou Cajuns in between. Indeed, in the Fayette County case it appears that the black population was more of less contiguous, so the only issue is erosity within the county - to pick up 35 voters somewhere. So in that case, it would not surprise me if the VRA did require that black district in Fayette to be drawn. We shall see (if the appeal is pursued to its conclusion).



Which leaves the issue of what to do with state rules, where there is ambiguity about what minority compactness exactly means, and a situation falls into the grey area. How much legal risk is too much? Perhaps the standard should be that such a minority CD must be drawn were a reasonable person based on legal advice would conclude that there is a substantial, rather than more remote risk, that the VRA dictates such a CD be drawn. What percentages are we talking about here?  Perhaps as small a risk as 10%, but more likely 25% to 33%. Do I think you meet the 10% test? Maybe - reasonable people can differ. Do I think it meets the 25%-33% test? No, probably not.

In my opinion your minority CD should not be drawn - it may be legal, but it's probably not mandated by the VRA, and thus does not constitute an exception to the otherwise apposite redistricting rules. And I would take you to court on this, or whomever, if I did not like the map, alleging that the map was illegal under the state statute (that we sort of wrote, albeit with variations, contretemps, and ongoing disagreement, right here on your Board. )

So, in short, there is no avoiding the legal risk. The matter will be litigated, unless the state statute requires something closer to the concept that any majority minority CD must be drawn that does not violate the equal protection clause as elucidated by the Court in Hunt. That is a state overlay over the VRA that I would oppose because it undermines every other policy consideration that animates good redistricting principles. Let it go to Court if need be, to clear the matter up, but in the interim less us not degrade the quality of our maps, and everything else that we are trying to do, and persuade the public square to accept.

[jimrtex]

You are quite confident that Baton Rouge and New Orleans blacks will be viewed as one community of interest Muon2 for VRA purposes?  We agree don't we, that we only draw majority minority CD's when the VRA actually requires it right?  Which raises another question. What does one do where the law is unclear as to whether a majority minority CD is required?

If the VRA does require such a CD, you certainly did the best you could given the geography. It is much better than that elongated affair which was your alternative.

I would err on the side of history with the VRA. If there has been a past finding that a minority group had the type of bloc voting for and against its preferred candidates, then absent any new detailed analysis (such as by the CA commission) or court decision I would presume that those parts of Gingles were still met. The court has been less clear about what constitutes compact for the purposes of the VRA, but my sense is that the court takes a broad view of compactness, only throwing out a district when the shape or extent could be replaced by a more reasonable one. The need for 50% within a compact area is the court standard, and in LULAC the court threw out the district because a less extensive district that didn't combine communities separated by 300 miles was available to the mappers.

It is nearly 600 miles from San Antonio to El Paso if you don't take I-10

[muon2]

I remain unswayed by the argument that no black majority district is needed in LA. This is a state with a 30% BVAP population and a history of racial bloc voting. To posit a plan that provided no opportunity for the minority to elect a candidate of choice in those circumstances would bring a certain suit. I can only assume that such a plan would try to use the argument that there is no justification to link the two urban centers, since I can imagine no other.

Let's assume that the plaintiff in such a case presents my plan with the NO-BR district as its alternative. I contend that it is narrowly tailored to meet the compelling state interest of the VRA. I then look at the language in Shaw v Reno on which the Shaw v Hunt decision followed.

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My CD clearly follows those traditional districting principles. There are only three split counties and then each only two ways while four counties are contained wholly within the CD. There are only two split cities. The shape is generally compact by most standards and definitely not bizarre. Even the 1997 form of NC-12 survived SCOTUS in Hunt v Cromartie. My CD is certainly more compact than that.

[Torie]

Mike, you really did not address the contents of my brief (which I took considerable time to write obviously, maybe 30 minutes including research). When one writes an opposition to a brief, one needs to address and refute the contentions contained therein to the point where the court is induced to deny the relief requested. Referencing compelling interests, semi-reasonable lines even if not what our posited state law would allow, and referencing other prongs of the Gingles test, like voting blocs etc., is inapposite in deciding this particular case. Did I misstate the law at all on this that I adduced, or by missing other relevant cases? I stipulated that your CD was less erose than the one in Hunt, but to me that only means the odds are much higher that your CD is Constitutional, not that it is mandated by the VRA. What the issue is about is if the minority population is sufficiently geographically compact to trigger the VRA, and nothing else.

So unless you do better, we are just going to have to disagree on this one too. Which still leaves the more important question, as to what the state law should say vis a vis the VRA where there is some uncertainty as to what it actually requires.

[muon2]

Mike, you really did not address the contents of my brief (which I took considerable time to write obviously, maybe 30 minutes including research). When one writes an opposition to a brief, one needs to address and refute the contentions contained therein to the point where the court is induced to deny the relief requested. Referencing compelling interests, semi-reasonable lines even if not what our posited state law would allow, and referencing other prongs of the Gingles test, like voting blocs etc., is inapposite in deciding this particular case. Did I misstate the law at all on this that I adduced, or by missing other relevant cases? I stipulated that your CD was less erose than the one in Hunt, but to me that only means the odds are much higher that your CD is Constitutional, not that it is mandated by the VRA. What the issue is about is if the minority population is sufficiently geographically compact to trigger the VRA, and nothing else.

So unless you do better, we are just going to have to disagree on this one too. Which still leaves the more important question, as to what the state law should say vis a vis the VRA where there is some uncertainty as to what it actually requires.

I thought you were proposing that a plan with no black CD would be acceptable under the VRA, so I thought I was challenging a hypothetical plan made under that guise. Now I read you to say that you are challenging my map as violating state rules for districting so I should defend why it is required under the VRA.

I'm no lawyer, so perhaps I am missing where you argue that minimizing erosity and other nice principles excuses denying a minority population that makes up 30% of the state population any opportunity to elect at all in the six CDs. In Johnson v DeGrandy SCOTUS recognized that looking at the rough proportionality of districts to the voting age population, while not dispositive, "is a relevant fact in the totality of circumstances to be analyzed when determining whether minority voters have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." Opportunity to elect candidates of choice is at the core of the VRA. My plan properly provides that opportunity to elect and that opportunity cannot be achieved without a BVAP-majority district (as per Bartlett) in the plan. No other plan can be offered that provides for a black-majority district that does not link separate urban centers. My plan creates that district while conforming as nearly as practicable to the other state districting factors.

[jimrtex]

I remain unswayed by the argument that no black majority district is needed in LA. This is a state with a 30% BVAP population and a history of racial bloc voting. To posit a plan that provided no opportunity for the minority to elect a candidate of choice in those circumstances would bring a certain suit. I can only assume that such a plan would try to use the argument that there is no justification to link the two urban centers, since I can imagine no other.

You are advocating that the rules be ignored as necessary to create a black majority district.

Rule 0: All other rules should be ignored or modified as necessary to comply with Section 2 of the Voting Rights Act.   Entrants should be prepared to defend their answer in court against politically motivated litigators providing self-serving testimony, which ambitious federal judges will interpret in a manner that they hope will draw the attention of administration officials who recommend appellate appointments.

It is not the regions created under the rule set that will be challenged.  It will be the rule set itself.  If the VRA truly requires a racially-based district, then it should be identifiable within that  rule set.  If the rule set is reasonable in this regard, then it would be defensible under the "totality of circumstances" of 42 U.S.C. § 1973

My CD clearly follows those traditional districting principles. There are only three split counties and then each only two ways while four counties are contained wholly within the CD. There are only two split cities.

There was no apparent attempt to recognize real communities of interest in advance.   You did not attempt to give Baton Rouge its own representative, even though its population was almost identical to a district.  You  did not create the maximum number of regions.  You double spanned Jefferson and Orleans parishes.

[Torie]

Mike, you really did not address the contents of my brief (which I took considerable time to write obviously, maybe 30 minutes including research). When one writes an opposition to a brief, one needs to address and refute the contentions contained therein to the point where the court is induced to deny the relief requested. Referencing compelling interests, semi-reasonable lines even if not what our posited state law would allow, and referencing other prongs of the Gingles test, like voting blocs etc., is inapposite in deciding this particular case. Did I misstate the law at all on this that I adduced, or by missing other relevant cases? I stipulated that your CD was less erose than the one in Hunt, but to me that only means the odds are much higher that your CD is Constitutional, not that it is mandated by the VRA. What the issue is about is if the minority population is sufficiently geographically compact to trigger the VRA, and nothing else.

So unless you do better, we are just going to have to disagree on this one too. Which still leaves the more important question, as to what the state law should say vis a vis the VRA where there is some uncertainty as to what it actually requires.

I thought you were proposing that a plan with no black CD would be acceptable under the VRA, so I thought I was challenging a hypothetical plan made under that guise. Now I read you to say that you are challenging my map as violating state rules for districting so I should defend why it is required under the VRA.

I'm no lawyer, so perhaps I am missing where you argue that minimizing erosity and other nice principles excuses denying a minority population that makes up 30% of the state population any opportunity to elect at all in the six CDs. In Johnson v DeGrandy SCOTUS recognized that looking at the rough proportionality of districts to the voting age population, while not dispositive, "is a relevant fact in the totality of circumstances to be analyzed when determining whether minority voters have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." Opportunity to elect candidates of choice is at the core of the VRA. My plan properly provides that opportunity to elect and that opportunity cannot be achieved without a BVAP-majority district (as per Bartlett) in the plan. No other plan can be offered that provides for a black-majority district that does not link separate urban centers. My plan creates that district while conforming as nearly as practicable to the other state districting factors.

All of what you say, is simply not the legal standard, Mike. It is all about whether the minority population is compact, and not that the CD itself is I might add. I interpret implementing the stricture of a compact minority population as looking to see if the shades of blue on a racial map are geographically compact. This is a condition precedent to a claim under section 2, and the candidate of your choice bit is another prong of Gingles, and is in play in a now basically dead Section 5 claim.

[muon2]

I remain unswayed by the argument that no black majority district is needed in LA. This is a state with a 30% BVAP population and a history of racial bloc voting. To posit a plan that provided no opportunity for the minority to elect a candidate of choice in those circumstances would bring a certain suit. I can only assume that such a plan would try to use the argument that there is no justification to link the two urban centers, since I can imagine no other.

You are advocating that the rules be ignored as necessary to create a black majority district.

Rule 0: All other rules should be ignored or modified as necessary to comply with Section 2 of the Voting Rights Act.   Entrants should be prepared to defend their answer in court against politically motivated litigators providing self-serving testimony, which ambitious federal judges will interpret in a manner that they hope will draw the attention of administration officials who recommend appellate appointments.

It is not the regions created under the rule set that will be challenged.  It will be the rule set itself.  If the VRA truly requires a racially-based district, then it should be identifiable within that  rule set.  If the rule set is reasonable in this regard, then it would be defensible under the "totality of circumstances" of 42 U.S.C. § 1973

My CD clearly follows those traditional districting principles. There are only three split counties and then each only two ways while four counties are contained wholly within the CD. There are only two split cities.

There was no apparent attempt to recognize real communities of interest in advance.   You did not attempt to give Baton Rouge its own representative, even though its population was almost identical to a district.  You  did not create the maximum number of regions.  You double spanned Jefferson and Orleans parishes.

So do you contend that the VRA does not require a black-majority district in LA? There is a large statewide minority population, racial bloc voting, and the ability to create a minority opportunity district that is geographically compact as currently interpreted by the court. The fact that no one cluster exists with sufficient BVAP will not excuse the lack of a VRA district, that is only one fact and does not change the totality of circumstances that require said district.
 

[traininthedistance]

Playing around with Louisiana myself... there's another consideration here that deserves mentioning which is separate from the issue of whether Louisiana requires a VRA district that would force a Baton Rouge split, but which I think weighs pretty heavily on the answer.

And that is: take a look at the New Orleans urban county cluster.  Take a look at its size: it's one and a half districts large, so no matter what there is going to be one district which is half within the NO area and half outside of it.  And, then, take a look at its location.  It's basically trapped right behind the Houma and Baton Rouge clusters- there is no getting around the fact that one of the New Orleans districts is going to have to encroach on at least one of these areas.  It can, technically, take all of Houma, but then you run into the problem of still needing another 80K or so people, which can't be filled with whole counties.  The closest you can get leaves both districts 6K overpopulated, and leaves the Baton Rouge district in a sticky wicket as well, as it's 22K under (well, 22K under with Iberville but putting that one county back in play changes nothing) and there's no good way to fill it, either, nevermind the hook (through outlying BR metro counties, no less!) to Hammond that is left in its wake.



(The green district is minority-majority, by the way; and if one allows a second county split you can make it plurality-black by total population.)

Basically what I am trying to say is that you may as well split Baton Rouge and get that VRA district, you're not going to get your pristine Baton Rouge district as part of a pretty, non-erose, non-splitting map anyway.

...

A larger point regarding VRA districts and the county cluster approach: while I have admittedly not been paying as much attention to every single detail here as I ought to, and while I do certainly approve of the general thrust of the efforts here, it seems like this approach just chokes on areas with sizable rural minority populations.  A VRA override clause seems necessary in states like Louisiana, Alabama, Mississippi, etc.

[Torie]

I remain unswayed by the argument that no black majority district is needed in LA. This is a state with a 30% BVAP population and a history of racial bloc voting. To posit a plan that provided no opportunity for the minority to elect a candidate of choice in those circumstances would bring a certain suit. I can only assume that such a plan would try to use the argument that there is no justification to link the two urban centers, since I can imagine no other.

You are advocating that the rules be ignored as necessary to create a black majority district.

Rule 0: All other rules should be ignored or modified as necessary to comply with Section 2 of the Voting Rights Act.   Entrants should be prepared to defend their answer in court against politically motivated litigators providing self-serving testimony, which ambitious federal judges will interpret in a manner that they hope will draw the attention of administration officials who recommend appellate appointments.

It is not the regions created under the rule set that will be challenged.  It will be the rule set itself.  If the VRA truly requires a racially-based district, then it should be identifiable within that  rule set.  If the rule set is reasonable in this regard, then it would be defensible under the "totality of circumstances" of 42 U.S.C. § 1973

My CD clearly follows those traditional districting principles. There are only three split counties and then each only two ways while four counties are contained wholly within the CD. There are only two split cities.

There was no apparent attempt to recognize real communities of interest in advance.   You did not attempt to give Baton Rouge its own representative, even though its population was almost identical to a district.  You  did not create the maximum number of regions.  You double spanned Jefferson and Orleans parishes.

So do you contend that the VRA does not require a black-majority district in LA? There is a large statewide minority population, racial bloc voting, and the ability to create a minority opportunity district that is geographically compact as currently interpreted by the court. The fact that no one cluster exists with sufficient BVAP will not excuse the lack of a VRA district, that is only one fact and does not change the totality of circumstances that require said district.
 

The above interpretation of Section 2 of the VRA is not supported by any court decisions to my knowledge (and in particular the notion that the percentage minority in the state has any relevance to this whatsoever). Mike, are you aware of any case which per the VRA ruled that a majority-minority CD must be drawn where the only way to draw it is incorporating two separate urban clusters? Of course, the litigation on this issue is limited because the Pubs and the blacks are all too eager to draw black majority-minority CD's, Section 5 may have required some to be drawn potentially when that Section still had teeth, and because absent something way out there, when such CD's are drawn they are not illegal, just not mandated by the Section 2 of the VRA.

There is no further point arguing this, because we are not engaging as to the actual legal precedents, but that still leaves the issue of what to do about the VRA in grey areas.

Train's point however has merit if any reasonable map would nip both NO and BR in one CD, with the only remaining issue is the effecting jagged racially based lines in each metro area. As I say, while awaiting the resolution of the Fayette County case, my instinct is that within a locality, the VRA is considerably more likely to demand erose racially based line drawing than a CD that travels between urban clusters, picking up geographically disparate black populations.

[muon2]

The above interpretation of Section 2 of the VRA is not supported by any court decisions to my knowledge (and in particular the notion that the percentage minority in the state has any relevance to this whatsoever). Mike, are you aware of any case which per the VRA ruled that a majority-minority CD must be drawn where the only way to draw it is incorporating two separate urban clusters? Of course, the litigation on this issue is limited because the Pubs and the blacks are all too eager to draw black majority-minority CD's, Section 5 may have required some to be drawn potentially when that Section still had teeth, and because absent something way out there, when such CD's are drawn they are not illegal, just not mandated by the Section 2 of the VRA.

There is no further point arguing this, because we are not engaging as to the actual legal precedents, but that still leaves the issue of what to do about the VRA in grey areas.

Train's point however has merit if any reasonable map would nip both NO and BR in one CD, with the only remaining issue is the effecting jagged racially based lines in each metro area. As I say, while awaiting the resolution of the Fayette County case, my instinct is that within a locality, the VRA is considerably more likely to demand erose racially based line drawing than a CD that travels between urban clusters, picking up geographically disparate black populations.

The problem with the type of district I'm looking at is that these cases generally would occur in states that historically would have been section 5. So of course there is little litigation that rests solely on section 2 to guide us in states with separated urban minority populations and significant rural minority populations.

Experts use the proportionality argument because it is a court-recognized factor in determining whether a section 2 violation exists (that's why I cited Johnson v DeGrandy) and that can bring the statewide minority populations into the debate. As usual the court wouldn't make it a safe harbor, but it is a section 2 factor supported by case law.

[Torie]

I just read Johnson, and the Court just assumed that the first prong of Gingles was met, and moved on to discuss the other necessary elements to support a Section 2 violation, so alas that case does not support your point of view at all in my opinion Mike. We are just not doing very well here.

[traininthedistance]

The above interpretation of Section 2 of the VRA is not supported by any court decisions to my knowledge (and in particular the notion that the percentage minority in the state has any relevance to this whatsoever). Mike, are you aware of any case which per the VRA ruled that a majority-minority CD must be drawn where the only way to draw it is incorporating two separate urban clusters? Of course, the litigation on this issue is limited because the Pubs and the blacks are all too eager to draw black majority-minority CD's, Section 5 may have required some to be drawn potentially when that Section still had teeth, and because absent something way out there, when such CD's are drawn they are not illegal, just not mandated by the Section 2 of the VRA.

There is no further point arguing this, because we are not engaging as to the actual legal precedents, but that still leaves the issue of what to do about the VRA in grey areas.

Train's point however has merit if any reasonable map would nip both NO and BR in one CD, with the only remaining issue is the effecting jagged racially based lines in each metro area. As I say, while awaiting the resolution of the Fayette County case, my instinct is that within a locality, the VRA is considerably more likely to demand erose racially based line drawing than a CD that travels between urban clusters, picking up geographically disparate black populations.

How about TX-23?

[muon2]

I just read Johnson, and the Court just assumed that the first prong of Gingles was met, and moved on to discuss the other necessary elements to support a Section 2 violation, so alas that case does not support your point of view at all in my opinion Mike. We are just not doing very well here.

Then we will just have to disagree. I heard too many redistricting lawyers in 2010 and 2011 say that one should check the proportionality of districts to the population as one measure of potential racial dilution. All rested on Johnson for their statements.

I would also disagree for if I take your view to its logical conclusion then no southern state (except GA for metro Atlanta and perhaps south FL) could be mandated to have a black majority CD. To me that seems to fly in the face of the very rationale for the VRA that was designed to provide black voters, particularly in the south, the opportunity to elect the candidates of their choice.

[Torie]

The Texas action, and the TX-23 action was more about section 5, and retrogression, and how to count Hispanics, and not about the issue of Section 2 minority population geographical compactness. In any event, TX-23 does not barbell to pick up Hispanics in El Paso and San Antonio. Rather El Paso has its own CD, and TX-23 is the natural CD to take up the balance of that metro area. And the Hispanic population is contiguous. It is a sea of green from El Paso to San Antonio. So a natural Hispanic CD belongs just belongs where it does. The Pubs just wanted to do the minimum, by diluting down the number of Hispanics in the CD in San Antonio, and the issue is whether or not they went too far under Section 5.

[Torie]

I just read Johnson, and the Court just assumed that the first prong of Gingles was met, and moved on to discuss the other necessary elements to support a Section 2 violation, so alas that case does not support your point of view at all in my opinion Mike. We are just not doing very well here.

Then we will just have to disagree. I heard too many redistricting lawyers in 2010 and 2011 say that one should check the proportionality of districts to the population as one measure of potential racial dilution. All rested on Johnson for their statements.

I would also disagree for if I take your view to its logical conclusion then no southern state (except GA for metro Atlanta and perhaps south FL) could be mandated to have a black majority CD. To me that seems to fly in the face of the very rationale for the VRA that was designed to provide black voters, particularly in the south, the opportunity to elect the candidates of their choice.

They are assuming geographical compactness of the minority population. But you are right. Under Section 2, many minority CD's are drawn that probably are not mandated under Section 2 (Section 5 has a different standard as you know).  They are drawn because the Pubs and the blacks want them drawn, so they are to the extent not unconstitutional under Hunt. We decided to not draw minority CD's not mandated by Section 2. Perhaps you are uncomfortable with that standard now. In any event, there is yet to be one Section 2 case of which I am aware that mandated a non minority contiguous barbell majority minority CD to be drawn taking in two separate population nodes via picking up a sea of whites in between.

If you have a relationship with one of these lawyers, you might ring him up and inquire what he thinks of the competing merits on this that we have been arguing about.  Hopefully he will have more to offer up than Johnson.

[traininthedistance]

The Texas action, and the TX-23 action was more about section 5, and retrogression, and how to count Hispanics, and not about the issue of Section 2 minority population geographical compactness. In any event, TX-23 does not barbell to pick up Hispanics in El Paso and San Antonio. Rather El Paso has its own CD, and TX-23 is the natural CD to take up the balance of that metro area. And the Hispanic population is contiguous. It is a sea of green from El Paso to San Antonio. So a natural Hispanic CD belongs just belongs where it does. The Pubs just wanted to do the minimum, by diluting down the number of Hispanics in the CD in San Antonio, and the issue is whether or not they went too far under Section 5.

I just read Johnson, and the Court just assumed that the first prong of Gingles was met, and moved on to discuss the other necessary elements to support a Section 2 violation, so alas that case does not support your point of view at all in my opinion Mike. We are just not doing very well here.

Then we will just have to disagree. I heard too many redistricting lawyers in 2010 and 2011 say that one should check the proportionality of districts to the population as one measure of potential racial dilution. All rested on Johnson for their statements.

I would also disagree for if I take your view to its logical conclusion then no southern state (except GA for metro Atlanta and perhaps south FL) could be mandated to have a black majority CD. To me that seems to fly in the face of the very rationale for the VRA that was designed to provide black voters, particularly in the south, the opportunity to elect the candidates of their choice.

They are assuming geographical compactness of the minority population. But you are right. Under Section 2, many minority CD's are drawn that probably are not mandated under Section 2 (Section 5 has a different standard as you know).  They are drawn because the Pubs and the blacks want them drawn, so they are to the extent not unconstitutional under Hunt. We decided to not draw minority CD's not mandated by Section 2. Perhaps you are uncomfortable with that standard now. In any event, there is yet to be one Section 2 case of which I am aware that mandated a non minority contiguous barbell majority minority CD to be drawn taking in two separate population nodes via picking up a sea of whites in between.

If you have a relationship with one of these lawyers, you might ring him up and inquire what he thinks of the competing merits on this that we have been arguing about.  Hopefully he will have more to offer up than Johnson.

The population distribution of TX-23- El Paso on one end, San Antonio on another, vast empty space in the middle, is is anything more a barbell than muon's Louisiana district.  TX-23 is arguably more consistently Hispanic from end-to-end, since the LA district does have to fight through some white suburbs in Jefferson first, but there is a fairly solid string of black population on the south/west side of the Mississippi there, which does serve as a bridge in much the same way- it is not really a "sea of whites".

And it seems obvious to me that such a district has not been mandated yet under Section 2 solely for the reason that there has not yet been a relevant challenge- the districts just always get drawn, or Section 5 was in force.  That is no guarantee that we can just wipe our hands of VRA concerns here going forward.

[muon2]

I just read Johnson, and the Court just assumed that the first prong of Gingles was met, and moved on to discuss the other necessary elements to support a Section 2 violation, so alas that case does not support your point of view at all in my opinion Mike. We are just not doing very well here.

Then we will just have to disagree. I heard too many redistricting lawyers in 2010 and 2011 say that one should check the proportionality of districts to the population as one measure of potential racial dilution. All rested on Johnson for their statements.

I would also disagree for if I take your view to its logical conclusion then no southern state (except GA for metro Atlanta and perhaps south FL) could be mandated to have a black majority CD. To me that seems to fly in the face of the very rationale for the VRA that was designed to provide black voters, particularly in the south, the opportunity to elect the candidates of their choice.

They are assuming geographical compactness of the minority population. But you are right. Under Section 2, many minority CD's are drawn that probably are not mandated under Section 2 (Section 5 has a different standard as you know).  They are drawn because the Pubs and the blacks want them drawn, so they are to the extent not unconstitutional under Hunt. We decided to not draw minority CD's not mandated by Section 2. Perhaps you are uncomfortable with that standard now. In any event, there is yet to be one Section 2 case of which I am aware that mandated a non minority contiguous barbell majority minority CD to be drawn taking in two separate population nodes via picking up a sea of whites in between.

If you have a relationship with one of these lawyers, you might ring him up and inquire what he thinks of the competing merits on this that we have been arguing about.  Hopefully he will have more to offer up than Johnson.

Let me make sure I understand the core of your argument. Suppose a state were to adopt the sort of strict geographical standards we have been discussing, including the preservation of urban county cores and reduction of erosity and chops. That state would have in effect adopted a strict and specific definition of geographic compactness. Gingles says that the minority population must in a geographically compact area to be protected by section 2, and Bartlett further defines that the single group minority population must exceed 50% VAP. Therefore if such a population does not exist in this definition of geographic compactness, no VRA district is required.

So, is the question I should ask: If a state defines geographic compactness with neutral criteria that would exclude the formation of a section 2 district, does the VRA require the state to violate those criteria and draw a section 2 district, and if so under what authority?

[Torie]

A state cannot pass a law which changes a federal law, unless the federal law accommodates that. So federal courts would evaluate whether a minority population was compact under its own standards. I suppose in fashioning those standards up to a point they might at the margins give some cognizance to the state rules, but they need not do so, and will certainly not do so if to the court a minority population is clearly compact, and the majority-minority CD goes away solely because state rules due to anti-chop provisions or whatever. The VRA doesn't give a damn about chops really. 

You are bringing up a new issue here, as to which I am quite confident of the answer, but what I was focusing on is what the state does, where there is some uncertainty as to what the VRA requires, or as per us, some disagreement as to what the VRA requires.