Congressional District 23 cuts across a rural swath of southwestern Texas, from the state?s border with New Mexico, hundreds of miles south along the Rio Grande, stretching east to San Antonio. It?s among the least densely populated terrain in the country?and the most electorally disputed. The district was created in 1967, two years after the passage of the Voting Rights Act. The voters of District 23 sent a Democrat to Congress every term until the 1992 election. At that point, following the 1990 census, which gave Texas three additional seats, District 23 was redrawn to include a Republican-leaning part of San Antonio. Republican Henry Bonilla won the 1992 election. And in 2003, the district was redrawn again to keep him there, by moving 100,000 Latinos out.
Bonilla was still in office in 2006, when the Supreme Court ruled that District 23 violated the Voting Rights Act. The act bars states and cities from discriminating against minority voters with crude tools like poll taxes and literacy tests (and in our time, some voter ID requirements); it also aims to ensure that when district lines are redrawn, they can?t be gerrymandered in a way that dilutes the electoral power of minorities. District 23 was supposed to be a Hispanic opportunity district?one in which Latinos could potentially elect their preferred candidate despite the racially polarized voting patterns of Anglos in the area. From ?92 on, Latinos were voting against Bonilla in greater numbers each time, nearly ousting him in 2002. But the 2003 map, the Supreme Court said, in essence ?took away the Latinos' opportunity because Latinos were about to exercise it.?
And so District 23 was redrawn once again, to add an infusion of Latinos and Democrats from another slice of San Antonio. In a runoff election with Bonilla in 2006, a Democrat named Ciro Rodriguez won. (He?d previously served in Congress until his nearby district was also redrawn.)
And then in 2008, the National Republican Congressional Committee targeted District 23 for the retaking. Two years later, the party politicians who controlled the state legislature and the latest round of redistricting after the 2010 census, effectively took Rodriguez?s seat away, handing it off to Republican Francisco Canseco?a Latino, but not the candidate most Latino voters supported. That, at least, is what was implied in a decision by three federal judges in Washington, D.C., who last August rejected the new map for District 23?along with the maps for the rest of the Texas congressional delegation, and the state Senate and House. (Two of the judges are Republican appointees. The third is an Obama pick.)
As the judges tell the story, the Republicans and their mapmakers tried for a particularly sophisticated circumvention of the Voting Rights Act in District 23. They didn?t reduce the percentage of Hispanic voters?they increased it, by 0.1 percent. But along the way, in the words of the court, the line-drawers ?consciously replaced many of the district?s active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of CD 23?s Anglo citizens. In other words, they sought to reduce Hispanic voters? ability to elect without making it look like anything in CD 23 had changed.? As proof, the judges pointed to an email from the lawyer for the Texas House speaker to one of the mapmakers, urging him ?to help pull the districts? Total Hispanic Pop and Hispanic CVAPs [citizen voting age population] up to majority status, but leave the Spanish Surname and [turnout numbers] the lowest.? This would be ?especially valuable in shoring up Canseco,? the email continued.
The District 23 saga is a classic example of the partisan misbehavior that the Voting Rights Act, and in particular a part of the law called Section 5, was enacted to stop. The Voting Rights Act is often called the ?crown jewel? of civil rights law. Section 5 in particular is also ?powerful and intrusive? and ?controversial,? in the words of Yale law professor Heather Gerken, because it gives the Justice Department the authority to block any change in the elections process?from the location of a polling place or the hours it is open up through redistricting?in the states that Congress chose to cover back in 1965. Based on patterns of voting discrimination at the time, the list of states and cities covered by Section 5 mostly lie in the South, along with scattered counties and cities elsewhere. When Congress last renewed the act, in 2006, it left the geography of Section 5 unchanged, after hearing testimony that racially polarized voting persists in the regions covered by Section 5 more than in the rest of the country.
At the end of this month, the Supreme Court will hear Shelby County v. Holder, a challenge to the continuing validity of Section 5, brought by the state of Alabama. It?s clear from a 2009 ruling by the justices that Section 5 is at risk. If it goes down, what will be lost?and what comes next?
A key question in Shelby County is whether it still makes sense to single out the South for special enforcement. There are arguments for keeping Section 5 as is, or tinkering with it, or scrapping it for something new, in this excellent debate forum run by law professor Richard L. Hasen (a frequent contributor to Slate). My own feeling about this question comes down to timing. While the South has come a long way from the racism of the ?60s, I don?t think it?s the Supreme Court?s job to take away a protection for minority voters Congress reaffirmed only six years ago. Section 5 isn?t perfect, and it doesn?t address many of the problems we have with voting in this country. But it?s one of the few tools we?ve got.
Talking to Nina Perales, the lawyer for the civil rights organization MALDEF, who told me the story of congressional District 23, I was reminded of Section 5?s traditional purpose and its ongoing significance. ?It is critically important to us,? Perales said. ?The essence of Section 5, the real heart, is that it prevents gamesmanship. Section 5 means when you remove one barrier, the jurisdiction can?t just come in with another one. From the Latino perspective, you see this particularly when a minority community is growing.?
Her point isn?t that without Section 5, the Latino voters of Texas would have no recourse. They?d still have Section 2 of the Voting Rights Act, which allows minorities to sue when a voting practice discriminates on the basis of race or ethnicity. This part of the law applies anywhere in the country. But it?s got fewer teeth than Section 5. The protections of Section 2 kick in only after lengthier litigation, usually giving an incumbent like Canseco another term in office to consolidate his power. Or, as Perales put it, ?the first election after redistricting goes to the discriminators.? After the federal judges rejected the Texas redistricting this past August on the basis of Section 5, however, new lines were drawn before the 2012 vote, and the candidate whom Latino voters preferred, a Democrat, won.
Section 5 also gives the job of reviewing thousands of proposed changes, no matter how small-bore, to the Justice Department. ?Section 5 is built especially for the stuff that?s under the radar,? Yale?s Gerken says. ?The change to a school board election or a water district that no one would go to court over, because it?s too costly and slow.? When I asked my law student interns to look at the 15 objections the Obama Justice Department has raised to proposed changes in election practices in the South since 2010, they turned up big shifts, like statewide redistricting in Texas and voter ID in South Carolina?and also little stuff, like changes to the number of school board members in Pitt County, N.C., and the use of Google Translator, instead of live Spanish-speaking poll workers, in Gonzales County, Texas.
Gerrymandering in Georgia's State Senate
Proposed Map (Democratic)
Adopted Map (Republican)
After the 2010 Census, Republican legislators in Georgia redrew their state's senate districts to concentrate blacks into fewer districts, a method known as "packing." Legislators packed the blacks of old District 14 into Districts 15 and 12, where blacks already claimed a vast majority. Similarly, they packed District 6 blacks into District 38, which already had a black majority. The proposed Democratic plan shows an alternative configuration that retains the number of districts in which blacks represent a considerable voting bloc.
Georgia State Senate Districts as adopted as proposed pre-2012
OK, so now you know why the loss of Section 5 matters. But there?s another chapter in the story of redistricting in the South, one that this term?s Supreme Court case doesn?t address directly, but that also matters enormously for who wins elections. In District 23, the problem was that, after the 2010 redistricting, there weren?t enough Latino voters who reliably turned out to elect the minority candidate of choice. But in states like South Carolina, Georgia, Alabama, and Virginia, black legislators worry just as much about another kind of redistricting?the kind that packs more African-American voters than necessary into a relatively small number of districts, so that white voters more easily hold sway in the rest of the state. In voting rights lingo, the problem in Texas was ?cracking,? and the problem in these other Southern states is ?packing.? If Section 5 goes down, the practice of packing may never get the attention of the courts that it clearly should.