Several NC legislative districts struck down
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  Several NC legislative districts struck down
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Miles
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« on: August 11, 2016, 05:48:54 PM »

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More great news from NC!

The districts will be redrawn for 2018.
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jimrtex
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« Reply #1 on: August 11, 2016, 08:12:07 PM »

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More great news from NC!

The districts will be redrawn for 2018.
Unless the Supreme Court overturns the decision.

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muon2
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« Reply #2 on: August 12, 2016, 07:16:25 AM »

It will be interesting to see where this line of cases ends up. They seem to suggest that a Dem partisan gerrymander is ok because there's no standard to determine how much gerrymandering is too much. However a Pub gerrymander may not be ok since in many states there is a disparate effect of racial and ethnic minorities which vote consistently Dem. Pub gerrymanders that pack Dems cannot avoid packing minorities, but the reverse is not true. If carried to the extreme it will create an asymmetrical view of the parties by the courts, which would be a marked departure from the cases of the 1990's.
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windjammer
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« Reply #3 on: August 12, 2016, 07:20:45 AM »

It will be interesting to see where this line of cases ends up. They seem to suggest that a Dem partisan gerrymander is ok because there's no standard to determine how much gerrymandering is too much. However a Pub gerrymander may not be ok since in many states there is a disparate effect of racial and ethnic minorities which vote consistently Dem. Pub gerrymanders that pack Dems cannot avoid packing minorities, but the reverse is not true. If carried to the extreme it will create an asymmetrical view of the parties by the courts, which would be a marked departure from the cases of the 1990's.
How NC republicans will be able to gerrymander NC during the next session will clearly depend on the NC judicial election this year.
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muon2
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« Reply #4 on: August 12, 2016, 07:53:00 AM »

It will be interesting to see where this line of cases ends up. They seem to suggest that a Dem partisan gerrymander is ok because there's no standard to determine how much gerrymandering is too much. However a Pub gerrymander may not be ok since in many states there is a disparate effect of racial and ethnic minorities which vote consistently Dem. Pub gerrymanders that pack Dems cannot avoid packing minorities, but the reverse is not true. If carried to the extreme it will create an asymmetrical view of the parties by the courts, which would be a marked departure from the cases of the 1990's.
How NC republicans will be able to gerrymander NC during the next session will clearly depend on the NC judicial election this year.

It will also depend on SCOTUS. These decisions are basically asking the court to overturn the Gingles standards for a VRA section 2 (Thornburg v Gingles 1986) and replace them with a much looser set of standards. The standards require districts with 50%+1 of a minority and racial bloc voting, so drawing such districts (as clarified by the Shaw decisions of the 1990s) have been a safe harbor for racial gerrymandering. In fact if a Pub plan didn't have such districts in the past they would be successfully challenged, but now they can be challenged if they do have them. That'll be the conundrum for the Pub mapmakers.
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Nyvin
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« Reply #5 on: August 12, 2016, 08:17:38 AM »
« Edited: August 12, 2016, 08:19:23 AM by AKCreative »

It will be interesting to see where this line of cases ends up. They seem to suggest that a Dem partisan gerrymander is ok because there's no standard to determine how much gerrymandering is too much. However a Pub gerrymander may not be ok since in many states there is a disparate effect of racial and ethnic minorities which vote consistently Dem. Pub gerrymanders that pack Dems cannot avoid packing minorities, but the reverse is not true. If carried to the extreme it will create an asymmetrical view of the parties by the courts, which would be a marked departure from the cases of the 1990's.

The thing is the Republican's nature works against racial minorities because ~90% of their voters are non-hispanic white.   The Democrats encourage representation of minorities because so many of their supporters are non-white comparatively.    It's a case of the law just being on the Democrat's side, like it or not.

You're basically asking the courts to ignore this fact and just assume each party has no relation to race.   That's blatantly not the case.
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muon2
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« Reply #6 on: August 12, 2016, 08:49:01 AM »

There's no question that the NC map is an egregious gerrymander. But past SCOTUS rulings would have considered them to be partisan gerrymanders, not racial gerrymanders. The WI case may well set the standard for partisan gerrymanders in court, and if so the NC gerrymander would probably fall under that standard. But this NC case is really testing a new theory about racial gerrymanders, not established law. If the Dems were seeking to overturn it on established law the case would have been decided at the beginning of the decade.

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jimrtex
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« Reply #7 on: August 12, 2016, 09:56:49 AM »

There's no question that the NC map is an egregious gerrymander. But past SCOTUS rulings would have considered them to be partisan gerrymanders, not racial gerrymanders. The WI case may well set the standard for partisan gerrymanders in court, and if so the NC gerrymander would probably fall under that standard. But this NC case is really testing a new theory about racial gerrymanders, not established law. If the Dems were seeking to overturn it on established law the case would have been decided at the beginning of the decade.
The legislative district boundaries were precleared by the USDOJ. Now the courts are saying that even though they could not have got preclearance without the 50%+1 districts, they shouldn't have done so.

The districts were also challenged in the state courts and upheld. That decision was appealed to US Supreme Court, which remanded the case to the NC Courts to reconsider their decision in light of the Alabama decision. The NC Supreme Court did so, and once again upheld the legislative district boundaries. The federal case was permitted to go forward only because there were independent sets of plaintiffs. I don't see how the SCOTUS can stay out of this considering that the NC courts were acting under their direct instructions.
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muon2
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« Reply #8 on: August 12, 2016, 10:46:48 AM »

There's no question that the NC map is an egregious gerrymander. But past SCOTUS rulings would have considered them to be partisan gerrymanders, not racial gerrymanders. The WI case may well set the standard for partisan gerrymanders in court, and if so the NC gerrymander would probably fall under that standard. But this NC case is really testing a new theory about racial gerrymanders, not established law. If the Dems were seeking to overturn it on established law the case would have been decided at the beginning of the decade.
The legislative district boundaries were precleared by the USDOJ. Now the courts are saying that even though they could not have got preclearance without the 50%+1 districts, they shouldn't have done so.

The districts were also challenged in the state courts and upheld. That decision was appealed to US Supreme Court, which remanded the case to the NC Courts to reconsider their decision in light of the Alabama decision. The NC Supreme Court did so, and once again upheld the legislative district boundaries. The federal case was permitted to go forward only because there were independent sets of plaintiffs. I don't see how the SCOTUS can stay out of this considering that the NC courts were acting under their direct instructions.

So is it also your sense that this is a new theory about what constitutes racial gerrymandering?
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jimrtex
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« Reply #9 on: August 14, 2016, 02:25:42 AM »

There's no question that the NC map is an egregious gerrymander. But past SCOTUS rulings would have considered them to be partisan gerrymanders, not racial gerrymanders. The WI case may well set the standard for partisan gerrymanders in court, and if so the NC gerrymander would probably fall under that standard. But this NC case is really testing a new theory about racial gerrymanders, not established law. If the Dems were seeking to overturn it on established law the case would have been decided at the beginning of the decade.
The legislative district boundaries were precleared by the USDOJ. Now the courts are saying that even though they could not have got preclearance without the 50%+1 districts, they shouldn't have done so.

The districts were also challenged in the state courts and upheld. That decision was appealed to US Supreme Court, which remanded the case to the NC Courts to reconsider their decision in light of the Alabama decision. The NC Supreme Court did so, and once again upheld the legislative district boundaries. The federal case was permitted to go forward only because there were independent sets of plaintiffs. I don't see how the SCOTUS can stay out of this considering that the NC courts were acting under their direct instructions.

So is it also your sense that this is a new theory about what constitutes racial gerrymandering?
Covington v North Carolina (PDF)

What the court ruled was that everything had been subordinated to race. The chairs of the two redistricting committees had one person draw the maps (and only gave oral instructions). They told him to draw 50%+1 districts everywhere, which were referred to as VRA districts.

He also somewhat ignored the Whole County Provisions of the North Carolina Constitution as harmonized with OMOV and VRA by the NC Supreme Court. The North Carolina constitution forbids splitting of counties.

The NC Supreme Court has interpreted this to mean that counties should first be grouped based on the following rules:

(0) Draw VRA districts;
(1) Single-county, single member;
(2) Single-county, multi-member;
(3) Multi-county, multi-member, with groupings with fewer counties preferred.

There are some additional rules related to the division of multi-county, multi-member groups, such as minimize crossing of county boundaries.

In this case, because of the emphasis on drawing 50%+1 districts, in some parts of the state no multi-county groups were constructed. There was also a lot of precinct splitting, and general disregard for compactness measures (i.e. it was not even considered). So not only was consideration of race elevated, consideration of traditional redistricting criteria was depressed.

The court also found that there was no effort to demonstrate that the 3rd condition of the Gingles test was met (that white voters voting as a bloc denied the opportunity for the minority to elect their  candidate of the choice.)   (e.g a district that is 40% black, might elect the black candidate of choice if 17% of white voters crossed over)

North Carolina also offered as a defense that they were attempting to avoid retrogression. At the time the redistricting occurred, 40 counties in North Carolina were subject to preclearance. While not required now, it was at the time the redistricting was done, and is thus a legitimate consideration for using race in redistricting. In the baseline, North Carolina had nine 50% house districts and zero 50% senate districts. After the redistricting there were 27 50% house districts, and nine 50% senate districts.

What the Democrats want is a soft Gingles test: That wasting minority votes is an abridgement of the right to vote. This leads to titration of districts where the minimum number of blacks are placed in a district such that it will vote Democratic. Whites who vote Democratic are allies, whites who vote Republican are an oppressing bloc vote. The corollary is that the number of white Republicans who would be just as effective if they went fishing on election day is maximized.

The manipulation may actually alter voter behavior in terms of turnout.

Ideally, an electoral district is a neutral measurement device, that measures voter sentiment. But it can turn into an influence on voters in and of itself.
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muon2
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« Reply #10 on: August 14, 2016, 07:54:06 AM »

This "soft Gingles" test seems to mostly eliminate the first prong. Under Gingles minority districts are not required unless there is a potential district of 50%+1 minority VAP. In Bartlett v Strickland the opinion said that a state did not have to consider crossover voters in drawing districts, and that section 2 only applied if there was a potential 50%+1 minority district. This "soft Gingles" would seem to require that Strickland be significantly altered and subordinated to a secondary position after other redistricting factors.

This "soft Gingles" also seems to heavily modify the third prong. The racial block voting analysis used by the state looks like standard fare used successfully in many cases for the last two cycles. The experts use various statistical means to show clear differences in preference between the white and black population. The Court here seems to rely on the fact that crossover voters exist to substantially change what has been meant by racial bloc voting. They point to the fact that as long as enough whites in an area support the candidate of choice by the blacks then overall bloc voting doesn't matter since given the crossover, the white majority can't defeat the preferred candidate of the black minority.

Both these changes seem to me to create a substantially new view of the VRA than the one that has been around since the 1990's.
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Torie
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« Reply #11 on: August 14, 2016, 02:42:40 PM »

Is the bottom line of the case, that any BVAP percentage in excess of the minimum to elect a candidate of the minority's choice where it entails gerrymandering, is now illegal packing?
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jimrtex
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« Reply #12 on: August 14, 2016, 03:21:31 PM »

This "soft Gingles" test seems to mostly eliminate the first prong. Under Gingles minority districts are not required unless there is a potential district of 50%+1 minority VAP. In Bartlett v Strickland the opinion said that a state did not have to consider crossover voters in drawing districts, and that section 2 only applied if there was a potential 50%+1 minority district. This "soft Gingles" would seem to require that Strickland be significantly altered and subordinated to a secondary position after other redistricting factors.

This "soft Gingles" also seems to heavily modify the third prong. The racial block voting analysis used by the state looks like standard fare used successfully in many cases for the last two cycles. The experts use various statistical means to show clear differences in preference between the white and black population. The Court here seems to rely on the fact that crossover voters exist to substantially change what has been meant by racial bloc voting. They point to the fact that as long as enough whites in an area support the candidate of choice by the blacks then overall bloc voting doesn't matter since given the crossover, the white majority can't defeat the preferred candidate of the black minority.

Both these changes seem to me to create a substantially new view of the VRA than the one that has been around since the 1990's.
It is not clear that the North Carolina did any racial bloc voting analysis.

In their finding that racial considerations predominated, the court pointed to numerous instances where Strickland was invoked as the rational for drawing 50%+ districts. Essentially, the map-drawers treated the words "VRA", "50%+", and "Strickland" as synonyms.

The court also pointed out that Strickland itself had noted that all the Gingles test had to be present.

I'm not saying the federal court in North Carolina is proposing a soft Gingles test, but that is what the Democrats want. Otherwise, on what basis is there a requirement for ordering race-based districting?

I assume that the US Supreme Court will take up this case.

The NC Supreme Court had previously upheld the legislative districts. That had been appealed to the US Supreme Court, which accepted the case for purposes of remanding it back to the NC courts, for them to consider the Alabama case. The NC Supreme Court then once again upheld the legislative districts. Perhaps the US Supreme Court could take up both cases, and uphold both decisions on a 4:4 vote.
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jimrtex
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« Reply #13 on: August 14, 2016, 03:46:59 PM »

Is the bottom line of the case, that any BVAP percentage in excess of the minimum to elect a candidate of the minority's choice where it entails gerrymandering, is now illegal packing?
You can't place racial considerations above all traditional redistricting criteria (other than population equality).

In North Carolina, Virginia, and Alabama, there was an effort to maximize the BVAP.

One problem is that the "reasonably compact" part of the Gingles test was permitted to ignore traditional redistricting criteria.

A district running from Jacksonville to Orlando was reasonably compact, so long as it included swaths of rural territory within, but not if it cracks the population in Orlando, in which case a district running from Jacksonville to Tallahassee is now reasonably compact.
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muon2
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« Reply #14 on: August 14, 2016, 05:26:16 PM »
« Edited: August 14, 2016, 05:28:25 PM by muon2 »

This "soft Gingles" test seems to mostly eliminate the first prong. Under Gingles minority districts are not required unless there is a potential district of 50%+1 minority VAP. In Bartlett v Strickland the opinion said that a state did not have to consider crossover voters in drawing districts, and that section 2 only applied if there was a potential 50%+1 minority district. This "soft Gingles" would seem to require that Strickland be significantly altered and subordinated to a secondary position after other redistricting factors.

This "soft Gingles" also seems to heavily modify the third prong. The racial block voting analysis used by the state looks like standard fare used successfully in many cases for the last two cycles. The experts use various statistical means to show clear differences in preference between the white and black population. The Court here seems to rely on the fact that crossover voters exist to substantially change what has been meant by racial bloc voting. They point to the fact that as long as enough whites in an area support the candidate of choice by the blacks then overall bloc voting doesn't matter since given the crossover, the white majority can't defeat the preferred candidate of the black minority.

Both these changes seem to me to create a substantially new view of the VRA than the one that has been around since the 1990's.
It is not clear that the North Carolina did any racial bloc voting analysis.

In their finding that racial considerations predominated, the court pointed to numerous instances where Strickland was invoked as the rational for drawing 50%+ districts. Essentially, the map-drawers treated the words "VRA", "50%+", and "Strickland" as synonyms.

The court also pointed out that Strickland itself had noted that all the Gingles test had to be present.

I'm not saying the federal court in North Carolina is proposing a soft Gingles test, but that is what the Democrats want. Otherwise, on what basis is there a requirement for ordering race-based districting?

I assume that the US Supreme Court will take up this case.

The NC Supreme Court had previously upheld the legislative districts. That had been appealed to the US Supreme Court, which accepted the case for purposes of remanding it back to the NC courts, for them to consider the Alabama case. The NC Supreme Court then once again upheld the legislative districts. Perhaps the US Supreme Court could take up both cases, and uphold both decisions on a 4:4 vote.

I read the opinion (beginning on p. 138) as saying that there was an analysis of racially polarized voting offered by two separate experts for the state. Both found that there was racially polarized voting in that the white population preferred different candidates than the black population. The opinion however discounts this, since the Court found that racially polarized voting is insufficient to satisfy the third Gingle prong. To satisfy the third prong one must also show that the polarization allows the white majority to "usually beat the minority's preferred candidate." That additional test was not done.

The tricky part is that additional test from Gingles requires knowledge of the district in question. One can't tell if the white majority will usually beat the black-preferred candidate without knowing how much of which white population is in the district (eg. are they college students or farmers). It certainly allows for sub-50% districts to meet section 2, but it feels like it requires them when there is enough white crossover. This is the part that seems to run counter to Strickland.

It would seem that the Court wants a process by which one creates districts using generally acceptable redistricting principles without regards to race. Then one should test the totality of the plan to determine if there is a section 2 violation, and redraw as needed if a section 2 violation is detected. Then there would need to be further iterations until no violation is apparent. Generic testing of individual counties as done by NC would not be useful.
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Torie
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« Reply #15 on: August 14, 2016, 06:06:34 PM »

So you can't gerrymander if it involves persons of color, even if it is solely because they are Democrats, except to the extent if a "compact CD" is out there that would elect a candidate of their choice. That standard won't hold, if otherwise gerrymandering remains legal.
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muon2
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« Reply #16 on: August 14, 2016, 06:24:40 PM »

So you can't gerrymander if it involves persons of color, even if it is solely because they are Democrats, except to the extent if a "compact CD" is out there that would elect a candidate of their choice. That standard won't hold, if otherwise gerrymandering remains legal.

As I heard at a conference last week, that is exactly the standard the Dems are seeking. It makes Pub gerrys nearly impossible if any racial groups are impacted, yet preserves Dem gerrys when racial minorities happen to benefit. It creates a very asymmetric playing field for 2020 if it holds.
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nclib
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« Reply #17 on: August 14, 2016, 08:15:41 PM »

Given that the new NC Congressional map is just as anti-Democratic as the old one, it's not like Republicans won't be able to continue egregious gerrymanders.

Even if minorities are packed not because they're minorities but because they're Dems, Republican gerrymanders tend to be more extreme than Democratic gerrymanders, the focus on race levels the playing field.
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jimrtex
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« Reply #18 on: August 14, 2016, 11:26:42 PM »

It is not clear that the North Carolina did any racial bloc voting analysis.


I read the opinion (beginning on p. 138) as saying that there was an analysis of racially polarized voting offered by two separate experts for the state. Both found that there was racially polarized voting in that the white population preferred different candidates than the black population. The opinion however discounts this, since the Court found that racially polarized voting is insufficient to satisfy the third Gingle prong. To satisfy the third prong one must also show that the polarization allows the white majority to "usually beat the minority's preferred candidate." That additional test was not done.
You're right.

Though it was also noted that the actual map-drawer did not attend any redistricting committee hearings, nor did he review the transcripts. The timing suggest that the studies were done in parallel with the actual map-drawing, probably to augment the Section 5 filing.


The tricky part is that additional test from Gingles requires knowledge of the district in question. One can't tell if the white majority will usually beat the black-preferred candidate without knowing how much of which white population is in the district (eg. are they college students or farmers). It certainly allows for sub-50% districts to meet section 2, but it feels like it requires them when there is enough white crossover. This is the part that seems to run counter to Strickland.

It would seem that the Court wants a process by which one creates districts using generally acceptable redistricting principles without regards to race. Then one should test the totality of the plan to determine if there is a section 2 violation, and redraw as needed if a section 2 violation is detected. Then there would need to be further iterations until no violation is apparent. Generic testing of individual counties as done by NC would not be useful.
The tricky part is that the Court didn't say what they wanted. They said what they didn't want.

In the North Carolina congressional case, the state drew a new map, and the plaintiff's are appealing that. But it is a lot harder to create a Gingles congressional district than a Gingles legislative district.

In Virginia, McAuliffe jammed the legislative process, a master did a radical redraw, and no one was found to have standing to appeal it.
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