Solving problems that don’t exist

On Thursday, the news we were waiting for finally came…a federal judge threw out Georgia’s legislative and Congressional District maps as part of a wave of redistricting cases that have been working their way up and down the federal courts.

Buzz briefly touched on U.S. District Judge Steve C Jones’s decision along with the more than 500 page ruling that several of Georgia’s Congressional, State House and State Senate districts violated the Voting Rights Act (VRA). Jones was appointed to the federal bench in 2010 by President Barack Obama. Previously, Jones had been a Superior Court Judge in the Judicial Circuit that included Athens-Clarke and Oconee Counties.

While this will likely require the state to redraw the entire district maps in a special session, as it will be difficult to move populations of voters around from one district to another while keeping the equal population (one person, one vote) requirement without affecting the whole state, the real question, at least for the Congressional Districts, is why?

The 1965 Voting Rights Act was passed, in part, to make sure minority voters are represented in legislative districts in proportion to their population. In other words, if a state has a population that is 25% black and 25% Hispanic, 50% of the legislative districts (State House, State Senate, and Congress) should be either majority black or majority Hispanic.

Georgia has watched closely as Alabama’s Congressional District maps went through the federal court gauntlet, and were thrown out, and rightfully so. In Alabama, the General Assembly drew only one majority black Congressional District out of the seven the state has, meaning, rather than maximizing minority representation, Alabama diluted it. In Georgia, that was not the case.

One fact that we do have to make clear at the beginning is that these lines are drawn and the demographic information is collected ONLY during the Census, which occurs only every 10 years. So, as these lines are drawn, we are not looking at Georgia’s population as it exists now in 2023, but as it existed in 2020. Now that is clear, let’s look at the numbers.

According to the 2020 U.S. Census, Georgia’s black population is 31% of the total state population. As such, according to the VRA, the legislative delegations should also be around 31% black.

Georgia’s Congressional House delegation is 35.7% with CD 2, 4, 5, 7, and 13 being represented by black lawmakers; Sanford Bishop, Hank Johnson, Nikema Williams, Lucy McBath, and David Scott.

When Lucy McBath was elected to Congress in 2018, she was elected from CD 6, an overwhelmingly majority white District (61%).

Redistricting didn’t grossly change the racial makeup of CD 6 with the white population increasing slightly from 61% to 64%. What did change is the political makeup of the district. While in 2018 Lucy McBath lost the East Cobb and North Fulton portions of her district, she won the seat by running up the numbers in the affluent, but more liberal portions of north DeKalb. In both elections (2018 and 2020), it was affluent white voters who had previously voted Republican, but, thanks to Donald Trump, had switched to voting Democrat, that put McBath over the top. Her numbers improved in all parts of the old 6 CD in 2020, but the power of incumbency helps explain that.

McBath now represents CD 7, a plurality black district (31.3% black; 29.5% white, 23.8% Hispanic, 15.5% Asian). McBath switched Congressional Districts to run against her fellow Democratic House Member, Carolyn Bourdeaux, and defeated her in the Democratic Primary. Bourdeaux had narrowly lost to GOP incumbent Congressman Rob Woodall in 2018 falling 419 votes short out of over 280,000 cast. Woodall did not run again in 2020 and Bourdeaux narrowly defeated Rich McCormick for the open seat in 2020 51.39-48.61%.

Like CD 6 in 2020, CD 7 was also majority white, but demographic information from voters had shown a shift over the decade since the the 2010 census. In 2010, the district was over 63% white, while that number had fallen to 51.3% in 2018. The changing demographics were not because of increases in the black population of the district, that had only increased slightly from 21.1 to 21.5%, but increases in Hispanics and Asians, especially in rapidly growing Gwinnett County. In 2021, the Georgia General Assembly increased the minority population of the 7th to make is a plurality black district rather than a district with a narrow white majority.

Looking at the rest of the state’s Congressional delegation, the only GA Congressional District that has a black population of over 56% is Georgia’s 13th (68%). The 5th and 2nd CD have under 55% back population. The 4th CD has 55.6%.

The result is Georgia, a state with a black population of 31% has a Congressional delegation which is 35.7% African-American. This seems radically different than a state, like Alabama, which has a black population of 27%, but had a Congressional delegation that was only 14% African-American. With the court ordered redistricting, the new delegation in Alabama will likely be 28.5% African-American, more in line with the population of the state as a whole.

In light of the numbers and previous rulings, Judge Jones’s ruling concerning Georgia’s Congressional districts does not seem to make legal sense, let alone even logical sense.

Georgia joins not only Alabama, but Louisiana and South Carolina (the United States Supreme Court (SCOTUS) heard oral arguments in the South Carolina, Alexander v. South Carolina, case on October 11) in having the courts look at whether race was a factor in the partisan Gerrymandering of districts to benefit the majority party. This all stems from the SCOTUS’s 2017 decision in Cooper v. Harris. In an opinion by Justice Elena Kagan, and joined by Justice Clarence Thomas, the court ruled that when it comes to racial gerrymandering, “the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics.” In short, as noted in The New Republic, neither sorting voters by race for racial reasons nor sorting them by race for reasons of partisan gerrymandering is permissible.

The issue in Alexander seems more closely aligned to the issues facing the Georgia Districts. TNR argues;

According to the census, the Charleston-centered 1st District was overpopulated by almost exactly the same number of people by which the inland 6th District was underpopulated. Given that, it would have been fairly easy for legislators to equalize district population by simply shifting around 85,000 people from the 1st to the 6th.

South Carolina Republicans took a more aggressive tack, however, moving almost 53,000 people from the 6th District into the 1st District and then moving a different 140,000 people back to the 6th. These massive population shifts fell heavily along surgically precise racial lines, moving 62 percent of Charleston’s Black population from the 1st to the 6th. They shifted all but one Charleston County voting-tabulation district with more than 1,000 Black voters out of the 1st District.

In its justification, South Carolina also has relied on a SCOTUS decision that added a caveat to Cooper. In 2019, Chief Justice John Roberts wrote for the majority in Rucho v. Common Cause that political Gerrymandering decisions were “non-justiciable”—meaning federal judges can’t stop states from Gerrymandering away political power from one party or another, which is where the term “Gerrymandering” initially came from—but that racial gerrymanders are both justiciable and unconstitutional. 

The Republicans in South Carolina have an unusual ally in their fight as well, Democratic Congressman James Cyburn. Clyburn, who is 83, was first elected to the U.S. House from South Carolina in 1992. His support of VP Joe Biden in the 2020 South Carolina Primary helped revive Biden’s campaign and push him on to the nomination. Clyburn was also worried that his district was losing too much of it’s black population and worked with the GOP to shore up his seat at, according to ProPublica, the cost of black, Democratic voters in South Carolina.

While Judge Jones’s decision focused on several of Georgia’s Congressional Districts, specifically 3, 6, 11, 13, and 14 (noting that 13 is represented by Democrat David Scott), Jones conveniently overlooks CD 7, an only plurality black district with an African-American member of Congress. If Jones wants Georgia Republicans to somehow create another majority minority district, it will require David Scott’s district to become less majority minority, but will also shift the racial make-up of the delegation from 35% to 43%. Then the issue is not equal minority representation in proportion to the population, but only PARTISAN gain by the Democrats. If that is the sole objective, then Rucho prevails and the issue is non-justiciable.

The Atlanta Journal-Constitution slyly hints at this in their reporting of Jones’s decision. The AJC reports, “White Republicans hold nearly two-thirds of Georgia’s seats in the U.S. House, a larger share than the 50% of the state’s population of white people. Black Democrats control the other five seats, with Black residents making up one-third of residents.”

The problem with the case is the Democrats aren’t arguing that Georgia can and should create a majority minority district for the 20% of the state’s population that is neither black nor white, but have claimed the Georgia maps harm only Georgia’s black population, an argument that forms the basis for Jones’s decision. Jones even notes in his ruling that black voters “have suffered significant harm” by Republican-drawn maps that reduced their representation.

The only reduction was in the Democratic, not the African-American, representation in the U.S. House, which has remained the same since the 2018 election. Jones bizarrely seems to claim the two are equal and that Georgia really just needs to draw another Democratic district, not necessarily a majority minority district.

Even as Georgia prepares its appeal, Governor Kemp has had to call a special session as an insurance policy against any appeal being delayed, or even lost and not meeting Jones’s December deadline for new maps. The consequence of Jones’s flawed logic and fuzzy math is all Georgia taxpayers, regardless of race or partisan lean, will be on the hook for the cost special session and further litigation.

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