Image: Obama
Sen. Barack Obama speaks during a rally at the American Legion Mall in Indianapolis, Indiana, October 23, 2008.
By Tom Curry National affairs writer
updated 10/24/2008 11:56:56 AM ET 2008-10-24T15:56:56

If Barack Obama is elected president on Nov. 4, it might signify that racially polarized voting no longer determines the outcome of elections.

After all, Obama would have to win a majority of white voters in many states to get to the magic number of 270 electoral votes.

If racially polarized voting is on its way toward extinction, would that have implications for the racially gerrymandered congressional districts that were created to offset such voting?

Another round of congressional redistricting will begin after the 2010 Census.

According to the National Council of State Legislatures, the Nov. 4 elections are “critical because 642 state Senators will be elected who will be in office for 2010 redistricting — the redistricting ground war starts in earnest this year.”

It’s a once-every-decade map-making bonanza: a chance for state lawmakers to redraw district lines to favor their party and to undermine their opponents.

What often results is gerrymandering — designing a congressional, state legislative, or other election district to maximize the power of one racial group or one political party.

Is gerrymandering still justifiable?
An Obama victory would raise the question: must legislators engage in racial gerrymandering? Is it still justifiable?

Last year, National Journal legal writer Stuart Taylor said, “As he (Obama) well knows, the racial gerrymandering that guarantees most of these (African-American House) members safe seats in black-dominated, Democratic districts, while ensuring conservative Republican dominance of neighboring districts, is a big part of the polarization problem.”

Black-majority Democratic districts are mostly, but not entirely in the South. (There are also Latino-majority districts in New York and other states.)

One reason why racial gerrymandering will likely persist: there are now a significant number of black and Latino legislators in the South and elsewhere who will use the power of incumbency to protect their seats.

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In the Mississippi House of Representatives, for example, there are 37 African-American Democratic members.

History helps explain what lead to this demographic and cartographic game of political strategy.

Congress passed the Voting Rights Act in 1965, which enabled millions of African-Americans to vote for the first time.

Blacks still few in the House in 1992
But despite the Voting Rights Act, by 1992, there were only five black Democrats in the House of Representatives from the South.

This under-representation, said historians Merle and Earl Black, was due to racially polarized voting and the fact that “southern white Democrats with the power to design district lines had never constructed more than a handful of House seats that black Democrats could realistically hope to win.”

This changed after the 1990 Census. In the decennial redrawing of district lines, state lawmakers constructed 12 new black-majority districts in the South. All of them were won by Democrats in the 1992 elections.

But this gerrymandering helped Republicans in the South, too.

Why? Because “compressing large numbers of black voters, the vast majority of whom always voted Democratic, into a few districts, radically reduced the number of black voters in many other districts,” said Merle and Earl Black. This left those other districts with larger white populations, making them more Republican leaning.

“Packing black Democrats into ghettoized districts predictably wasted their votes and contributed to the Democrats’ loss of the House of Representatives in 1994,” said historian Ward E. Y. Elliott.

More than mere symbolism
The new president, whether it is Obama or John McCain, will appoint an attorney general and federal judges who'll decide how to apply the Voting Rights Act.

First Read: Battlegrounds swing to ObamaSo there’s much more than mere symbolism in the Nov. 4 election; voters are choosing a president whose appointees will deal with the mechanics of how elections are conducted and districts are gerrymandered across the nation.

Morgan Kousser, a historian and redistricting expert at the California Institute of Technology, pointed to two cases before the U.S. Supreme Court which the new president and his attorney general will be forced to confront, cases that may well determine the future politics of drawing district lines according to racial lines.

One case, Bartlett v. Strickland, was argued before the justices last week.

As the Voting Rights Act has been interpreted by judicial rulings and by Justice Department lawyers, if lawmakers take what had been a black-majority district and change it into one in which blacks are only 40 percent of voting age population, that would be deemed “vote dilution,” and a violation of the law.

The new district map would not get the Justice Department approval which it needs under the Voting Rights Act.

But what if a racial minority group constitutes less than 50 percent of a district’s population —and yet the group still exerts enough influence to elect the candidate it prefers? Such a district is called a “coalition district” by civil rights lawyers.

Is it “vote dilution” if lawmakers reduce the district from 40 percent African-American to 30 percent?

During the oral argument in Bartlett v. Strickland, at least three justices indicated their uneasiness with judges being involved in deciding which of the less-than-50 percent minority districts must be shielded under the Voting Rights Act.

Chief Justice signals opposition
“How can you say that this brings us closer to a situation where race will not matter when it expands the number of situations in which redistricting authorities have to consider race?” Chief Justice John Roberts said to the attorney who was arguing that coalition districts need to be protected from being broken up during redistricting.

Kousser said five of the nine justices would probably rule that such districts can be broken up when legislators draw new district maps.

If the Bartlett decision goes the way Kousser predicts, he said in the states where Republican state legislators control redistricting, they would be able to “shatter any district now held by a minority-preferred candidate and they won't violate Section 2 of the Voting Rights Act.”

If Obama were president, he said, “there would be pressure on an Obama Administration and Congress to reverse it, and they will try hard.”

The justices may also decide another case next year involving a section of the Voting Rights Act which requires certain Southern states and some counties elsewhere in the country to get their voting procedures pre-approved by the Justice Department.

Getting pre-approval from the Justice Department
The case involves the Northwest Austin (Texas) Municipal Utility District Number One, NAMUDNO for short. NAMUDNO wants to bail out of the Voting Rights Act requirement that it submit changes in voting procedures to the Justice Department.

Election A to ZIt's "quite possible" that the Supreme Court will decide the NAMUDNO case during the 2008-2009 term, and that a majority will rule the pre-approval provisions of the Voting Rights Act coverage provisions unconstitutional, Kousser said.

If Obama is president and the justices use the NAMUDNO case to limit the reach of the Voting Rights Act, then, Kousser said “there will be pressure on the Obama Administration to rewrite the law, rather than to abandon it.”

“Assuming that he is elected, Obama will be the first U.S. president who has taught a course on voting rights, and he will realize not only the implications for minorities of adverse Supreme Court decisions in these two cases, but the effect on the Democratic party, as well,” Kousser said.

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