For the past several decades, E. Mark Braden (here) has been one of the leading redistricting lawyers in the country working on the Republican side. He has successfully argued in the redistricting area before the U.S. Supreme Court and has been involved in redistricting litigation throughout the country. For 10 years, he was Chief Counsel to the Republican National Committee.
In the wake of the Supreme Court’s VRA decision, I was fortunate to be part of a first-rate conference at the Brookings Institution to assess the decision and the future of voting rights law and policy. The conference (for a webcast, see here), hosted by Tom Mann and Nate Persily, was so good precisely because it included such a productively diverse array of experts and participants in the voting-rights field — including lawyers who were on opposite sides of the Shelby County case, academics, journalists, voting rights activists, and others.
Many fascinating insights and comments were offered at this conference. For now, I wanted to quote this observation from Mark Braden about how the system of racial redistricting that began in full in the 1990s (in the wake of the 1982 Amendments to the VRA and the Supreme Court’s 1986 interpretation of those amendments in the Gingles case) contributed to the rise of the Republican Party at the state and local level in the South:
. . . of course, redistricting based upon race has been vital to the creation of the Republican Party itself. I mean, there’s no question about that throughout the ‘80s, ‘90s. People that were working with me was the minority community in the South, and that’s what permitted the Republican party to become the majority party in those states at the local and legislative level. (emphasis added)
There has been much discussion over recent years about whether, and how much, the required creation of majority-minority districts, as a result of the VRA, also had the additional consequence of creating more conservative districts as well. But I am not sure I have ever seen anyone so directly involved in the redistricting process acknowledge these consequences as directly and dramatically as Mark Braden does in this statement.
In the mid-1990s, when VRA-required racial redistricting began, I recall how difficult it was even to discuss whether one of the effects this redistricting was to enable the election of more Republicans and to make political bodies more conservative overall. Indeed, in an article in the Harvard Law Review in 1995, I quoted a prominent civil rights activist who called it “pure racism” to raise such issues. By the decade of the 2000s, political figures on the ground in some parts of the South recognized that this tradeoff was indeed taking place; that’s why Congressman John Lewis testified in favor of Georgia’s post-2000 redistricting plan, put together by a coalition of black and white Democratic state legislators, that the Supreme Court ultimately upheld in the 5-4 Georgia v. Ashcroft decision. By now, I think it’s widely accepted factually, at least by politically knowledgeable players, that there is what might be called a tragic tension between creating more African-American majority districts in the South and creating more Democratic districts (a pending lawsuit in North Carolina argues that a strategy of this sort was behind the most recent, Republican-controlled redistricting of that state). Mark Braden’s recent comments are a public confirmation of that from the Republican point of view.
For my own views on how the VRA affected the rise of the Republican Party in the South, see Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America. As noted above, the webcast of the Brookings conference is now available. I will update with a link to the full transcript when it is available.