DRA and VRA

For those drawing and re-drawing redistricting maps through DRA, it is important that any map comply with the Voting Rights Act. Maps that do not comply with the VRA cannot be offered as potential maps to be adopted by commissions or legislatures, nor can they provide a useful baseline against which to compare proposed or enacted plans.

DRA does not impose any VRA-based constraint on the maps that users can draw. But it is important for those drawing maps to comply with these constraints and thus, to understand what they are. The VRA is complex, but I’m going here to distill down the relevant requirements into a few simple rules of thumb that should be fairly easy for those using DRA to comply with (this means I will leave out the complexities a comprehensive legal analysis would entail).

Heuristic #1 — Majority-minority VAP

A VRA district is not legally required unless the relevant minority group can make up 50% or more of the district’s voting-age population (VAP).¹ More specifically, the question is whether the relevant minority can constitute more than 50% of the citizen voting-age population (CVAP). In Hispanic areas, significant differences can exist between VAP and CVAP. DRA makes it possible to get CVAP data as well as VAP.²

Heuristic #2 — Reasonably compact

The VRA only requires such a district if it is a “reasonably compact” one. Unfortunately, there is not a quantitative metric that the courts have used to define what constitutes a reasonably compact district.

One suggestion for how to handle this is that a VRA district is not required if creating such a district requires a district that is highly unusual in shape, or has many “fingers” that protrude out to pick up specific populations, or that meanders over a lot of territory.

Another suggestion is to look at the compactness scores of the districts in the prior, enacted plan. If creating a VRA district would require a district that is more non-compact than any districts in the prior plan, then it is reasonable to assume the VRA does not require that district. This isn’t a hard and fast rule, but for simplicity’s sake, this is a reasonable rule of thumb to employ.

Heuristic #3 — Racially-polarized voting

VRA districts are also only required where racially-polarized voting (RPV) exists. DRA enables you to get a sense of whether there is polarized voting in the areas of individual districts.³ But digging in that deeply could get complicated fairly quickly. Instead, I think an appropriate rule of thumb here is just to assume that voting is racially polarized in the South, and then see whether the other requirements of the VRA exist or not. Outside the South, things are more complex and vary geographically. If you do not want to dig into the RPV data, you either have to assume RPV exists or that it does not.

Heuristic #4 — Coalition districts

If you cannot create a reasonably compact district that is more than 50% CVAP Black, or, Hispanic, or Asian-American, or Native American, does the VRA require you to create a district in which a combination of voters from such groups would make up more than 50% of the CVAP of a reasonably compact district?

This is an unsettled legal issue. The Supreme Court has not directly addressed it. The courts of appeals are split, though the majority view is that protected minority groups can be aggregated to get over the 50% CVAP requirement and prove Section 2 liability.

But that requirement applies only if the minority groups in the relevant area have cohesive political preferences over candidates. Figuring that out through DRA would take considerable effort.

In addition, most of the courts of appeals cases on this issue pre-date the Supreme Court’s decision in Bartlett v. Strickland, 556 U.S. 1 (2009). That decision held that supportive white voters cannot be aggregated with a minority group to get over the 50% CVAP requirement. It’s plausible, based on that case, that the Court would hold minority groups cannot be aggregated to establish Section 2 liability.

Given the complexity of being able through DRA to establish politically cohesive preferences between minority groups, and uncertainty about what the law requires, either approach to this issue would be a reasonable one for DRA mapmakers. That is, you can draw maps on the assumption that the VRA does not require the aggregation of minority groups. Or you can take the view that the VRA would require aggregation of politically cohesive minority groups if together they would constitute more than 50% of the CVAP in a reasonably compact district.

Heuristic #5 — Policy choices

Finally, all these principles are rules of thumb for the minimum the VRA legally requires. If you want to do more, for example to draw districts that combine minority populations, you are free to make that policy choice.

Footnotes

1. I’ll put some technical points in notes, for legal clarity, that I think would obscure the more readily implementable rules of thumb in the text. Once a VRA district is legally required, because a reasonably compact district could be created in which the relevant minority group is more than 50% of the VAP, that district need not actually have a minority VAP of 50% or greater. The VRA is satisfied by “ability to elect districts,” which can mean minority populations considerably less than 50% VAP, as long as enough majority voters in the district would support the candidates the minority community prefers. This is a confusing point, to be sure, and implementing it would require DRA mapmakers to examine the voting patterns of non-minority voters in surrounding areas to decide what level of minority population is sufficient, in those specific circumstances, to create an ability to elect district. If mapmakers are confident a 40% black district would be an ability to elect district, given examination of voting patterns of the other voters in the district, they could draw such a district where a VRA district is required. But for those DRA mapmakers who do not want to wrestle with this level of complexity, it will be simpler to create VRA districts with at least a 50% minority VAP where a VRA district is required.
2. By default, maps in DRA use VAP data. But one can go to Map Settings (gear in the upper right corner of the map) and change the VAP dataset to use CVAP data instead. This affects both the data in the demographics columns of the district Statistics tab and the data shown in the Minority Representation section of the Analyze tab.
3. See the Demographic Voting Analysis section of the Advanced tab.