“Non-Retrogression Without Law”

This is a co-authored post by Eric McGhee, Chris Warshaw, and me about our new article, “Non-Retrogression Without Law,” on the consequences of Shelby County v. Holder in the redistricting context:

            A decade ago, the Supreme Court held in Shelby County v. Holder that a crucial provision of the Voting Rights Act was unconstitutional. For nearly half a century, Section 5 of the VRA had barred certain, mostly southern states from changing their election laws unless they first received permission (“preclearance”) from federal authorities. Preclearance was granted only if covered states could show that their proposed changes wouldn’t result in a reduction (“retrogression”) of the electoral influence of minority voters. In Shelby County, the Court ruled that the formula used to determine which states were subject to Section 5 was invalid because it relied on supposedly obsolete data. Since the Court’s decision, Section 5, once the “crown jewel” of the civil rights movement, has been defunct.

            With Shelby County’s tenth anniversary approaching, you might think we’d know by now the case’s effects on American democracy. And with respect to laws about voting itself, we do have a reasonable understanding. Over the last ten years, states formerly covered by Section 5 have enacted many voting restrictions—photo ID requirements for voting, cutbacks to early voting, closures of polling places, and the like—that would never have been precleared had Section 5 still been in force. Preliminarily, though, these measures don’t seem to have disproportionately harmed minority voters. Several studies suggest that the gap between minority and white political participation hasn’t widened more in formerly covered states than in formerly uncovered states since Shelby County.

            But the policies that led to the most preclearance objections in the years before the Court’s decision weren’t voting restrictions. They were redrawn district maps. And prior to our forthcoming article, no information was available on Shelby County’s implications for redistricting. The reason is that Shelby County was handed down in 2013—after states had already designed their districts for the 2010s. In the wake of the Court’s ruling, states released from Section 5’s preclearance regime simply kept their existing districts for the rest of the decade. They didn’t update their districts until the 2020 Census was completed and it was time to draw new lines for the 2020s. The recently concluded 2022 election was therefore the first to be held under maps crafted in a world without Section 5.

            In our article, we analyze the new (2020s) and old (2010s) congressional, state senate, and state house plans of all fifty states. For each plan, we determine its number of “minority ability districts”—districts where minority voters are able to elect their preferred candidates. Minority ability districts often are, but don’t necessarily have to be, districts where minority voters comprise an outright majority of the population. Back when Section 5 was still in effect, it banned covered states from reducing the number of minority ability districts in any of their maps.

            There are plenty of reasons to expect Shelby County to have hurt minority representation. But we find relatively little retrogression in the latest round of redistricting. At the congressional level, eight of nine formerly covered states (all but Texas) created as many minority ability districts for the 2020s as they previously had for the 2010s. At the state legislative level, there was somewhat more retrogression: a total of five new maps in formerly covered states with fewer minority ability districts than their predecessors. But this decline was more than offset by the increase in minority ability districts elsewhere. In sum, across all formerly covered states, the volume of minority ability districts in state legislatures actually grew by five. Most of this growth was in so-called “crossover” districts where minority voters are able to elect their candidates of choice with some support from white voters.

            Nor did formerly covered states perform worse in terms of minority representation than did states that weren’t subject to Section 5’s special rules. Again, in the former group, the aggregate number of minority ability districts inched up in the last redistricting cycle. But in states that were mostly or wholly unaffected by Shelby County, the total volume of minority ability districts fell by fourteen. So our conclusion about retrogression in formerly covered states—that not much of it occurred—is the same whether our calculations are absolute or relative to the baseline of formerly uncovered states.

            Why didn’t Section 5’s demise have more dramatic consequences? One likely answer is the status quo bias of many line-drawers. Pressured by incumbents who are happy with their districts, mapmakers often minimize changes to existing boundaries. This aversion to major disruption was evident in our data. In fully two-thirds of the 2020s plans we evaluated, the number of minority ability districts was exactly the same as in the 2010s. Most line-drawers thus sought neither to improve nor to worsen minority representation—but rather to avoid altering it in any way.

            Another explanation for our results is that retrogression is typically unnecessary for states to achieve their partisan goals. In addition to determining the volume of minority ability districts in each plan, we computed the number of Democratic districts. We then examined the relationship between the change in minority ability districts, from the 2010s to the 2020s, and the change in Democratic districts. Strikingly, there was no consistent link between these variables. Plenty of new maps, many of them partisan gerrymanders, included significantly more or fewer Democratic districts than their predecessors. But some of these maps cut minority representation, some increased it, and most simply left it alone. On the whole, neither Democratic nor Republican line-drawers systematically subtracted (or added) minority ability districts for the sake of partisan advantage.

            Lastly, while our focus here is Section 5, Shelby County left standing the VRA’s other key provision, Section 2. If a series of conditions are satisfied, Section 2 requires jurisdictions nationwide to create more minority ability districts than they currently possess. States formerly covered by Section 5, then, might have been dissuaded from retrogressing by the prospect of litigation under Section 2. If successful, Section 2 suits could have forced these states to restore the minority ability districts they removed. However, this potential deterrent effect shouldn’t be overstated. Section 2 protects only a subset of minority ability districts while Section 5 previously shielded them all. Plaintiffs’ recent record in Section 2 litigation is abysmal. And Section 2 is currently under attack on grounds similar to those that doomed Section 5.

            We want to emphasize that our findings don’t mean that Shelby County had no impact on minority representation. Again, we identified six district plans in formerly covered states that dismantled minority ability districts: Texas’s congressional map, the state senate maps of Georgia, Mississippi, Texas, and Virginia, and Mississippi’s state house map. All this retrogression would likely have been prevented had Section 5 still applied. And more retrogression could occur in the future if line-drawers become less risk-averse or more willing to risk Section 2 liability. We also considered only statewide district plans. But much Section 5 activity historically took place at the local level. Our analysis says nothing about whether, or to what extent, formerly covered municipalities took advantage of Shelby County to slash minority representation.

            Our claim, then, is just that Section 5’s nullification didn’t lead to rampant retrogression (at least, not in statewide district plans). The law now allows formerly covered states to eliminate minority ability districts in many cases. But it turns out the law isn’t the sole—or even the main—driver of retrogression. That title goes instead to nonlegal factors like line-drawers’ status quo bias and pursuit of partisan advantage. For the most part, these factors didn’t impel formerly covered states to disband minority ability districts in the last redistricting cycle. That’s ultimately why we saw little retrogression even though the law would have permitted much more.

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