The Voting Rights Act Asymmetry Comes For Staten Island

The VRA allow Democrats to challenge Republican districts, but does not allow Republicans to challenge Democratic districts.

I have described the Voting Rights Act as asymmetrical. As a practical matter, the law provides a bonus to Democrats, and penalizes Republicans. The VRA is no longer trying to stop actual racial discrimination. In most cases, the VRA operates in the South where Republican legislatures try to create as many Republican districts as possible. But the VRA has little impact in the North where Democratic legislatures try to create as many Democratic districts as possible.

Alas, enter Mark Elias.

The Eleventh Congressional District in New York covers Staten Island (my hometown) and parts of Brooklyn. The Eleventh District is represented by Nicole Malliotakis, the only Republican member in New York City.

The Elias Law Group has filed a state Voting Rights Act challenge, arguing that the Eleventh District "provides Black and Latino Staten Islanders less opportunity than other members of the electorate to elect a representative of their choice." The upshot here is clear: Democrat voters are asking the court to eliminate a Republican district in New York City. There is no credible allegation that the overwhelmingly-Democratic New York legislature drew this map to dilute the votes of Black and Hispanic voters. Rather, this district was drawn as part of a series of messy political compromises. And even after those compromises, in which Republicans were almost gerrymandered out of the existence, the VRA can empower a court to eliminate that sole district to further help Democrats.

This is where the law is: in a district where Democratic voters cannot elect a Democrat, they can bring a VRA claim, even in an overwhelmingly democratic state where there is not even a scintilla of evidence of racial discrimination. But in a district where Republican voters cannot elect a Republican in an overwhelmingly republican state, they cannot bring a VRA claim.

This sort of asymmetry should not stand. Callais, hopefully, will put an end to this madness for the federal VRA. And as Rick Hasen pointed out, a ruling for Louisiana would also impact state VRAs.

Comments

[M L]

If understand correctly, Democrats gerrymander much harder than Republicans and have done so for a long time. But at they same time they constantly bitch and moan about any slight bit of Republican gerrymandering, while also trying to get the courts to outlaw it.

Now this year, some Republican states said, "you know what, this is dumb, we're going to gerrymander a little bit more now." But still not as much as Democrats already are though?! And, in response, Democrats freak out and call it an attack on democracy, and then make plans to gerrymander even harder than before, framing it as a defense of democracy?

Please correct me as needed.

[windycityattorney]

I think the mid decade re-redistricting is the difference. Typically the maps would follow the census, no? Well those are done every 10yrs. But GOP has majority in Congress + WH. And daddy Trump doesn't want to risk losing seats in the midterm. So he ordered states to re-draw maps and gerrymander and many state legislatures have called special sessions and done other gimmicky shit to oblige him.

And while it be true that all gerrymandering is 'partisan' in the general sense...not sure if its ever been this blatant (i.e, it has to be done now to protect or expand the majority we already have) and it's causing a tit for tat response. So when Texas says they are going to do it; we get California attempting a ballot measure to respond. If Indiana does it, then maybe IL will as well. Etc...

It does feel a bit different and whether that's the motivation behind it OR the timing (and I am leaning more on the timing being mid-decade) it feels different to me.

[Rossami]

Mid-decade redistricting has been uncommon lately but it is hardly unprecedented. There was a period where Ohio redrew its maps seven times in 14 years. New York was the first state to do so (in 1804 and again in 1808).

And, yes, it's always been this blatantly partisan. That's been true all the way back to the district that gave 'gerrymandering' its name.

[Rubbish!]

Marc Elias ("Big Boy") is the very worst that our political system shits out.

[ScottK]

Don’t sell your heroes short.

[Katall]

Fact: the 13th,14th, and 15th amendments, and the VRAwere passed so that states could not discriminate against blacks. Thus, it is no surprise that the VRA benefits blacks more than whites. Also a fact, racism was more prevalent in the south when the amendments and the VRA was passed. Thus, it is no surprise that it was and is used more in the south. And another fact, for whatever reason, blacks today are more likely to be Democrat, not Republican. So it is no surprise that it is being used to challenge districts represented by Republicans.

Given the original intent of the amendments and law, Prof. B's points have no validity if originalism is a thing. Perhaps he believes we have a living constitution?

[MaddogEngineer]

You were doing reasonably well until your last 2 sentences. Perhaps it has escaped your notice that Staten Island is not in the South?

The supposed particular justification for the Voting Rights Act's lack of color blindness, it's permission to discriminate according to race, is a particular history of racial discrimination. Hence the prior DOJ pre-clearance requirement. There existed a higher burden to meet justifying a minority advantaged gerrymander if the region in dispute did not have a congressionally recognized history of racial voting discrimination. SCOTUS continues to recognize that racial preferences require some proximate justification of past discrimination.

Marc Elias is a bad faith factor. While trying to wear the appearance of a non-partisan, he in fact will do anything he can to advantage the Democrat party election prospects (just a slightly less bad version of John Eastman). While I don't deny he might find legal justification for his actions, he does not do it out of some altruistic belief in the greater good. Except to the extent he thinks the greater good means Democrats winning and Republicans losing. He's willing to try anything and everything, to see what he can get away with--not unlike Trump, now that I think about it.

[Sarcastr0]

racial preferences require some proximate justification
That's new law you just made.
It'd be a trip that a law would start out constitutional as implemented 1 way, but over time have to be implemented a different way.
The 14th Amendment in the 4th dimension! It's a good law review article title, but that's not the rule the Court laid out even in Shelby County.

And your telepathy about Marc Elias? How even if he has the law right in his heart he's a bad partisan guy? That's impossible to prove and also who cares - lawyers are gonna be advocates; that's our system.

[MaddogEngineer]

You don't think congressional findings of past discrimination in the Voting Rights Act are necessary to justify its enforcement? Really? Nowhere did I claim above that provable "intent" to discriminate was a requirement to find a violation of the VRA, as amended in 1982. Like I alluded to above, such specific findings were the justifications for DOJ selective pre-clearance, but were ultimately struck down in Shelby County. But by all means, please tell me how exactly the Supreme Court will allow a violation of equal protection (racial preferences) without an identified legal justification!

This is just like you trying to pounce on me with what turned out to be an immigration enforcement hoax. So eager to prove me wrong, you can't be bothered to understand what I'm actually saying. When what you should be focused on here is how exactly it makes sense that the Democrat controlled New York state government is even accidentally violating the VRA discriminating against minority voters by allowing a Republican majority district to exist in what has historically been a Republican pocket of the state.

I'm sorry, I forgot I'm not allowed to have my own opinions about people like Elias. Meanwhile, the rest of you can assume whatever horrible things you want about Trump or his ilk, because that's just the truth! The funny thing is I will also probably agree with you about much of that.

(I heard an interview with Elias on the New Yorker radio hour a month or so ago, where he started out by decrying Trump for still claiming the 2020 election was stolen, before proceeding to explain to the interview why the 2026 midterms were in danger of being stolen by Trump Republicans. Like I said, a poor man's John Eastman.)

[Bob from Ohio]

Sarcasto is just gaslighting.

"Elias served as general counsel for the Hillary Clinton 2016 presidential campaign and John Kerry 2004 presidential campaign. In 2020 and 2021, on behalf of the Biden campaign and the Democratic National Committee, Elias oversaw the state-by-state response to lawsuits filed by the Trump campaign contesting the 2020 presidential election results. Of the 64 cases, he won all but one minor case, which was later overturned in his favor.[5][6][7] Elias was hired by the Kamala Harris 2024 presidential campaign to focus on potential recounts and post-election litigation.[8]"

Not a partisan!

[Bob from Ohio]

"partisan guy?"

Has he ever represented a GOPer or filed a suit to benefit the GOP?

[Rossami]

I won't even give Katall until the last 2 sentences. That was okay for sentences 1, 2 and 3 but went off the rails on sentence 4. Yes, it is true that racism was more prevalent in the south when the VRA was passed and that it is no surprised that it was used more in the south then. It is not, however, still true that racism is more prevalent in the south. My personal experience is that my current home, a northern midwest city, is far more racist than any of the southern communities that I was stationed in or visited during my time in the service. Like, orders of magnitude and unrepentantly more racist. Yet the VRA is still applied as if those now-ancient conditions were current conditions.

[Sarcastr0]

It is not, however, still true that racism is more prevalent in the south. My personal experience

White man's personal experience is used to explain the black experience.

You should know better than to cite personal anecdote. That's not going to be good evidence for how to interpret the VRA!

We have data since Shelby County that shows what happened to Southern States' districts since. Intentionally racist or not, there's a tell there.

If you like opinion polls there's a neat one that focuses on the South and asks more probing racial questions than your average Pew poll:
https://www.winthrop.edu/news-events/winthrop-poll-southern-focus-survey-reveals-black-and-white-divide.aspx

[Rossami]

A. You don't know my race (and couldn't be bothered to ask).

B. Racism is not something that can only be observed - or experienced - by only one race or the other.

C. The data since Shelby County shows nothing you wouldn't expect of a purely partisan (that is, non-racal) regression to the mean after removal that aspect of the VRA's thumb on the scale. So, no, there's no "tell" there.

D. Your winthrop poll does not address the issue at all. It only addresses recent perceptions of racism by demographic in the south when the point of my comment is that racism is as bad (or worse) in the rest of the US. And that's before addressing the methodological weaknesses inherent to self-reported perceptions.

[Poxigah146]

Those amendments were a failure, and in any case, were not properly ratified. The U.S. should act as though they don't exist.

[Sidney r finkel]

I guess Josh is concerned that when Republicans fail to elect a Representative in a Republican area it is because of the historical and still extant huge racial bias against the white people in this nation. Oh the horror!

As every school child knows, or will know once conservatives change the school curriculums white people have suffered intolerably from bigotry. Their voting rights have been threatened with violence and official barriers historically have prevented white men from voting at all. Surely Alito and his ilk on the Court will end this inhumane practice and all the ugly discrimination against the white race.

Why oh why does this otherwise intelligent and instructive Forum allow Josh to write for it and embarrass it with his idiotic ramblings.

[MaddogEngineer]

Probably for the same reason they let you post your ridiculous nonsense just now.

[MollyGodiva]

Congressional districts are unworkable. Time to go to proportional representation.

[Rossami]

Rather than regurgitate all the reasons why that's wrong, I'll simply summarize for new readers that this is an old argument and Molly is wrong. We are a republic that elects individual representatives, not a partocracy (a new word I learned this week).

[bernard11]

We are a republic that elects individual representatives, not a partocracy

PR may be a bad idea for some reasons, but this statement doesn't do anything to support that argument.

[JoeFromtheBronx]

We are a democratic republic. Proportional representation does not violate that. It is also not the path to one-party rule.

[Bob from Ohio]

Single district first past the post is the method used by the most successful countries in history, UK and then US. Australia and Canada and others have done well with it.

Worked for 240+ years, but now it has to be changed to some dumb Euro method. Pass.

[bernard11]

The trouble is, it no longer works.

Look, gerrymandering has been going on forever, it's true. But that doesn't mean it's not a flaw in the system. It's just that, with the advent of computerized mapping and block-by-block data, it has become a more powerful tool than it used to be, making it even easier for a majority to entrench itself.

Some solution has to be found, even if it scares John Roberts.

[Bob from Ohio]

Win the state, change the map.

[bernard11]

You miss my point entirely.

The idea of gerrymandering, at least at the state legislature level, is to make it unreasonably hard, if not impossible, for your opponents to "win the state."

The objective is to entrench yourself.

[Armchair]

Seems to work just fine

[bernard11]

That's helpful.

[ScottK]

Does this mean Professor Blackman supports the creation of nonpartisan commissions to ensure that electoral districts are drawn so as to make them competitive?

(No. Don't be silly).

[Bob from Ohio]

"nonpartisan "

All get rigged by Democrats. The "independents" turn out to be camouflaged Dems and sometimes even the GOPers.

[Rossami]

I wouldn't say that they are all rigged by Democrats but they are all rigged by incumbents. It's inevitable. There's no way to keep any group with political power 'nonpartisan' for more than a single election cycle.

[Stephen Lathrop]

Rossami — Sure there is a way to do that, and a lot of folks would hate it. You could get rid of gerrymandering. but keep legislative districts by disconnecting the district definitions from geography, and redefining them as particular groups of voters assigned to numbered districts at random. Thus, virtual districts.

You register, a random draw assigns you to a district. The next random draw does likewise for the next new registrant. If the draws are authentically random, all the districts will be nearly identically sized. And all will reflect pretty accurately the demographic characteristics of the state at large. But over time, they might begin to differ in political character, depending on who won elections, which issues the candidates brought to the fore, and how successful office holders were at getting re-elected. But you would not be able to foot-vote to get into the district of your choice, or to disrupt the politics of a district you disapproved.

A major change would be lack of capacity to represent regional interests selectively within the state. Every voter in the state would presumably contribute equally to political outcomes concerning issues with regional valance. The mountaineers in Western Maryland would have as much to say about Chesapeake Bay management policies as would watermen on the Eastern Shore.

Rural voters would hate this. Minoritarian voters would hate it. Members of protected minorities would hate it. Incumbents would probably oppose such a change unanimously. They would all hate it for the same reasons. Because it would be relentlessly, boringly, equalitarian, and because it would upset long-standing political interests.

Thus, people now actually politically disadvantaged ought to love it, if their political ambitions stopped at being treated alike with everyone else. We know that has not always been what happens. But if you get rid of protected districts for racial minorities, as looks likely soon, then blacks, for instance, would no longer have that reason to object to switching to virtual districts. And it is likely that in many states, black voters distributed in like-percentage blocs among all the districts would comprise a potent swing vote. Blacks might learn to like that.

Not that I think virtual districts is a concept on anyone's political radar, at least for now. But note that digital communications have opened the door to the notion of an enduring constituency, represented by a familiar politician, but with the voters in that district scattered everywhere at random, throughout the state.

[Rossami]

That could be a viable non-partisan solution. It is not, however, a non-partisan commission which was the specified topic of ScottK's original post.

[ducksalad]

Stephen - You do realize that if we used your plan statewide in Texas, where the population votes roughly 60R/40D, and they were assigned randomly to virtual groups of 700,000 each, then the result would almost certainly be 38 Republicans and 0 Democrats. Because in lots that large, selected randomly, the deviation in party preference from lot to lot would a tiny fraction of 1%. Conversely, California would send 52 Democrats and 0 Republicans.

You might think that individual candidates might be so good or so bad that they can overcome a 60/40 lean going into the election.

No, not very likely. Because under your plan, all advertisements would need to be statewide. Due to expense, the density of signs for each candidate is much less, but due to the number of candidates, the roadsides in CA would be swamped with the signs for 52 different races, several candidates each. Likewise on internet, television, and radio. Add onto this that many voters would not remember their district number.

The result would be there is no way for a candidate to make an individual case to her/his constituents. In CA the candidate is one out of over a hundred, vying for attention, but if he does get someones attention, there is only a 1/52 chance that person can even vote for them. Not practical.

As a result it would all be about that party label, and since party preference is the same across all 52 districts if they are truly random, the Dems run the board every time.

Maybe you're thinking people would develop some loyalty to their random number ("I'm a Seventeenther since birth, and proud of it") and then get into it like they get into football and study the candidates. I'll believe that when I see it.

[ScottK]

Missouri’s voters passed a proposition for a nonpartisan commission, and the GOP legislature promptly put a contrary proposition on the ballot, carefully worded so that the average voter wouldn’t know that the prior approval was being reversed. So yeah, party hacks share your paranoia.

[BrotherMovesOn]

So from the linked piece it appears the intention is to split off the part of Brooklyn which is now represented in the 11th, and replace it with a part of lower Manhattan? Does that really move the needle?
Staten Island has about 200,000 voters who went 2-1 for Trump. I am ignorant of the makeup of the median lower Manhattan voter. If someone local has a quick primer I'd be obliged.

[JoeFromtheBronx]

As a practical matter, the law provides a bonus to Democrats, and penalizes Republicans.

The voting rights law penalizing Republicans is on them.

The VRA is no longer trying to stop actual racial discrimination

Not true except perhaps via JB's version of "actual."

If we should listen to Rick Hasen, perhaps we should read the MSNBC piece Hasen links at his blog:

When Mr. Trump attacks democratic institutions, he does so in the manner of a car wreck — so flagrantly destructive as to command public attention. When the Supreme Court undermines our democracy, as it seems poised to do in Callais, it feels more like a slow poisoning: the attacks may be harder to notice, but they are just as deadly.

As to the complaint, the linked piece summarizes:

“The racial demographics of Staten Island have changed significantly over the last several decades, but the 2024 Congressional Map does not reflect those changes,” the plaintiffs said in their complaint.

The courts can weigh the evidence.

The article also references Republican mid-decade partisan redistricting efforts. Ultimately, a national voting rights law is warranted to address partisan gerrymandering.

There are currently incentives against unilateral disarmament. A national law would provide evenhanded limits.

[JoeFromtheBronx]

Various people support proportional representation. I'm agnostic, though it does not appear that the population at large wants it.

As long as we have the system we now have, a new voting rights law (Joe Manchin worked to formulate one version, which was more limited than the open-ended House Democratic version) is appropriate, and that should address partisan gerrymandering.