Elbridge Gerry’s infamous salamander district pales in comparison to the monster- like menagerie birthed in redistricted states that fall under the preclearance requirement of Section Five of the federal Voting Rights Act. Although Virginia’s state constitution requires that “every electoral district shall be composed of contiguous and compact territory,” the feds overruled it and mandated that Virginia’s recently reapportioned electoral boundaries incorporate districts contoured like a hooded cobra, snapping alligator, terrier head, half-eaten apple, seahorse, rooster, and an upsidedown, tailless Trojan horse. One serpentine district is now 180 miles long and only four miles wide in one section, spanning the rural tobacco counties of Southside Virginia to urban Portsmouth near the Atlantic Coast—a violation of the historical norm that election districts encompass “communities of interest” and not split the political subdivisions of localities. To accumulate the prescribed percentage of minority voters per “majority-minority” district, even some voting precincts are split under Virginia’s new plans, a source of considerable consternation and confusion to would-be voters, who go to the polls and find unfamiliar names.
The 1965 Voting Rights Act departed from previous civil rights laws in that it singled out the old Confederacy states for unique regulation. Under congressional presumption that low voter registration or turnout signified deliberate racial discrimination, the act applied automatically to any state that fell under one or both of the following conditions: use of a literacy test as a prerequisite for voting in the 1964 presidential election, and voter registration and turnout of less than 50 percent in that election. Although the black vote provided the margin of victory for Lyndon Johnson in Virginia in 1964, under both counts the act was applied to Virginia, with one immediate effect being termination of its literacy test—a test that had been liberally given for decades to both white Republicans and anti-Byrd Democrats.
In 1970, the act was extended for five years, and in 1975 for another seven. Since 1965, Section Five of the act has had the effect of requiring all Virginia voting law changes—congressional, state, and local electoral boundaries, voting registration or procedures, designation of polling places, terms of all elective offices, party plans, nomination processes, shifts from elective to appointive offices, redistricting patterns, methods of election—to be submitted for “preclearance” to the U. S. Department of Justice or to the U.S. District Court for the District of Columbia. Any state or locality submitting changes was burdened with proving that the changes were not discriminatory in purpose or effect.
In 1982, the act was extended for 25 more years and further amended, with Congress attaching an additional “results” test in Section Two. In 1987, the Justice Department altered its regulations to correspond to the 1982 revision. These new regulations made it obvious that all changes submitted for preclearance would be denied if the Department of Justice thought that the proposals would cause a racially discriminatory “result”—even if no deliberate intent could be proven.
The effect of preclearance is enormous, as jurisdictions bend over backwards to avoid even the slightest, unanticipated appearance of racial discrimination. The requirement has proven to be an onerous burden to states and localities: in practical effect, no matter how convoluted or strange the district, if Justice bureaucrats think that “majority-minority” voting districts can be carved in a locality or throughout the state, then a jurisdiction must carve them out or have its plans denied—even if a district has lost minority population since its previous preclearance approval at the last population census. The new district boundaries are, paradoxically, modern de jure segregation.
Prior to Virginia’s most recent redistricting conflagration, a dozen municipalities had their plans altered through Department of Justice objections, consent decrees, or court orders. Richmond was enjoined by a federal court order from holding councilmanic elections for seven years, until local officials backed down and consented to single-member ward elections. Newport News, which decided through an 85 percent favorable vote in a local referendum to directly elect a mayor, was forbidden to do so by the Justice Department upon discovery that city officials had not sufficiently precleared two other minor changes. And these examples represent only the tip of the iceberg. For nearly thirty years, the state of Virginia has stumbled over its share of redistricting obstacles, including complaints by special interest groups (especially the ACLU and the NAACP), Justice, and the U.S. Supreme Court and federal court imposed interventions.
Last year’s redistricting fights over Virginia’s legislative and congressional districts included squabbles over the definition of “black majority”: did this term signify a majority of the total black population or rather a majority of the “voting- age” black population, as asserted by the NAACP. The latter interpretation prevailed. The Department of Justice even rejected the reapportionment plan for the Virginia House of Delegates on the recommendation of the ACLU and NAACP, which asserted that the legislature’s numerical increase in black majority districts was insufficient and that at least one more such district could be sculptured. This grievance was filed in spite of the fact that the initial House plan was approved by the General Assembly’s joint Black Caucus and by the legislature’s Democratic majority and signed by the state’s black Governor, Douglas Wilder. A chastened legislature then bowed to ACLU wishes and, after three tries, including a gubernatorial veto and amendments, submitted a state Senate plan that the Justice Department would authorize. This plan’s division of the representation pie (among other things) handed Richmond yet another senator—in spite of the fact that the city had lost population since 1980.
The legislature-approved plans were noteworthy for their incumbency protection of insider Democratic lawmakers and for their punishment of nonpolitically correct outsiders. Republicans, enemies of the governor, and other perceived ne’er-do-wells. One Republican’s district was deliberately drawn five blocks away from his house. Another Republican was drawn out of her own House district; when she declared for the state Senate, she was then drawn out of her Senate district. A number of Republicans uprooted their households and relocated in order to run for reelection in their own districts. When 15 Republicans and one Independent were “paired” into single House districts (no Democrats were paired except for one delegate who had declared for the state Senate), Republicans filed a lawsuit against the plan in U. S. District Court. The judge concurred that it was a dreadful case of blatantly partisan gerrymandering but said that he could do nothing about it. Another case, filed in circuit court by rural Southside localities, charged that the plans for a new serpentine and two other districts diluted communities of interest and violated state constitutional contiguity and compactness requirements. They also lost.
The Justice Department rejected the plans of five localities. One county, Powhatan, took a strong stand and resubmitted its plan, appealing directly to the U. S. Attorney General after its local elections (as well as those of other localities) were postponed indefinitely by the Justice Department. Powhatan’s case is particularly interesting because it illustrates inherent problems with redistricting. Black population has declined from 20.46 percent to 15.57 percent of the total population and is scattered in communities throughout the whole of the rural county—making compact black districts an impossibility. Justice also ordered a change in how Powhatan included the resident state prison population in the county’s black majority district plan—although felons do not vote in Virginia.
In his letter to the U.S. Attorney General, Powhatan Board of Supervisors Chairman R. Lee Ware asked for intervention to prevent the Justice Department from “wittingly or unwittingly damaging the community and polity” of the homes of the county’s residents. Ware noted that Justice’s black-majority district boundaries “loop, squiggle, and jog across uncrossable terrain without regard to either geography or actual communities of people.” He emphasized that “Powhatan is not two communities, one white, one black. We are one community, black and white.” He added that the department’s order “is both philosophically wrong and practically destructive—wrong for all concerned, and destructive of a whole-cloth community.” “[W]e not only reject, but are offended by, the suggestion that federal voting-rights statutes mean to imply that only a white can in public life represent the interests of white citizens, or that only a black can in public office represent the interests of black citizens.” Indeed, the more a community is integrated—the more it has penetrated the “intermediate color line” of housing and jobs—the more difficult it is to fulfill the federal mandate.
Powhatan is now proceeding under the assumption that Justice will permit their local elections to be held in November—after a year’s delay. Currently, Brunswick County is fighting Justice’s decision to reject its new plan and to cancel its November election. Justice is also looking askance at a new state statute permitting local-option referenda for directly elected school boards, and 20 localities with that question on November’s ballot ma}’ have to postpone or cancel their referenda. Virginia remains the only state in the nation without an elected school board option. (Additionally, Virginia has no elected judges.)
In a supreme twist of irony, the preclearance requirement and the 1965 U.S. Supreme Court Mann v. Davis decision, which initiated the reapportionment mandate of “one man, one vote” (now called “one person, one vote”), has resulted in banned voting for months or years in some localities, in less representative government by duly elected officials (as well as less direct democracy), and in decreased turnout for baffled, disaffected voters who see no natural logic in being “moved” to other districts marked by geographical and political disorder.
The same federal officials who find South Africa’s segregated townships reprehensible apparently see no inconsistency with approving the deliberate, de jure, reservation-like partitioning of communities to prejudice electoral outcomes. As Ware commented, “The federal authorities are convinced that everyone in the South is racist, and they are making sure that the South knows it is still under Reconstruction.”
In order to escape from under the federal boot of preclearance, not one complaint—founded or unfounded—can be filed to Justice against a state for a full ten years. Don’t look for that to happen in Virginia any time soon. The ambitious lawmaking majority and the special interest groups know how to wield absolute power when they’ve seized it.