1. Racial and Partisan Issues in Voting and Redistricting David Epstein L6172: Law and Social Science March 28, 2007

2. Let’s Start at the Very Beginning…  Central result in analytical political science is Arrow’s Theorem No method of aggregating preferences satisfies five seemingly innocuous conditions Contrast with First and Second Welfare Theorems in economics  Implications: Rules aren’t neutral There’s no one best way to hold elections

3. Correcting Failures  In economics, there are certain well-known situations that lead to market failure Natural monopolies Externalities Informational asymmetries  These lead to a positive role for the government  What is the equivalent for “democratic failure?” What role should the courts play when there is no natural standard of efficiency to judge against?

4. Issue: Voting and Representation  So institutions such as voting systems can have significant effects on outcomes Any particular group can be over- or under- represented, depending on the particular scheme  This is what the South did to prevent Blacks from voting post-Reconstruction Grandfather clause White-only primary At-large elections Full-ballot provisions/slates, etc.

5. 1965 Voting Rights Act Primer  States would switch to a new tactic if their current method of disenfranchisement was ruled unconstitutional Literacy tests Poll taxes  This led to the 1965 Voting Rights Act (VRA)  Section 2 (Vote Dilution) Swept away all states laws imposing “tests or devices” on any individual’s right to vote Made illegal all state & local laws that “deny or abridge” minorities’ right to vote Permanent and (relatively) uncontroversial

6. 1965 Voting Rights Act Primer  Section 5 (Preclearance) Covered states must receive federal approval for changes in laws that may affect voting  Changes in Electoral Systems (but not legislative rules)  Annexation/De-annexation of suburbs  Redistricting Not permanent; most recently renewed in 2007  Implementation Standard for preclearance is retrogression  I.e., couldn’t go back to at-large elections Unclear how this applies to redistricting Assumption was that you would pass if you didn’t reduce the number of majority-minority districts

7. Early Successes of the VRA  Most immediate impact was to allow blacks to register and vote in the South Black registration was ~5% in Mississippi before the VRA Now White and Black voters register and vote in the same proportion  Under Section 2, many at-large systems were replaced with districts Then Court said that discrimination had to be intentional (Mobile v. Bolden, 1980) Congress responded with a results test in 1982 extension

8. Thornburg v. Gingles  New Section 2 results clause was implemented in a three-prong test: 1. Minority community is cohesive; 2. Majority votes sufficiently as a bloc to usually defeat the minority’s preferred candidate; and 3. The minority is large enough to form a majority in at least one single-member district.  Needed to measure how many voters of one race vote for candidates of the other race.

9. Ecological Regression  Do this by using ecological regression Calculate votes for black and white candidates as a percent of total turnout Run two regressions: 1. %Votes(Black Cand.) = a + b*(%Black Voters) 2. %Votes(White Cand.) = a + b*(%Black Voters) Then calculate 1. Black Support  Black Candidate 2. Black Support  White Candidate 3. Black Rolloff And the same for white voters

10. Ecological Fallacy  First issue: allow covariates? No, since we don’t care why voters of one race cast their ballots in a particular way.  Second issue: ecological fallacy Don’t know if the trend is due to changes in voter behavior, or different types of voters E.g., white who live near blacks may vote differently from those in surrounding areas No way to separate these two with aggregate level data  Current situation: use better and better statistical techniques to do the best you can with your data (EI)

11. Representation and the VRA  A central debate on the VRA over the past 10- 15 years has centered on the tension between Descriptive Representation: A minority group can elect its candidates of choice to office; and Substantive Representation: Policies favored by the minority community are passed into law.  Is there a tradeoff between these goals?  If so, which should states be forced/allowed to pursue, e.g., when redistricting?

12. Trends in Electing Minorities to Congress Descriptive Representation  Minority office holding has increased greatly over the past three decades Historically, this has been due almost entirely to the creation of majority-minority districts Now these districts are becoming less necessary for the election of black representatives  Still significant differences in the ability of blacks to gain office in the South as opposed to other states  Hispanic representation forms an intermediary case Tracks black representation by about 20 years 12

13. Black Hispanic

14.  For the first time, there are now more majority-Hispanic districts than majority-Black districts Black Hispanic

16.  Intermediate case: Hispanics more responsive than blacks in south, but less than blacks outside of south

17. Trends in Passing Legislation Substantive Representation  But the picture regarding substantive representation is less clear  Measuring substantive representation through roll calls Start with Congressional Quarterly Key Votes for each Congress  See which way the majority of the Black/Hispanic representatives voted  Call that a vote in the “pro-minority” direction Use this to score all representatives as the percent of times they voted with the majority of minority representatives Similar exercise has been done using all roll call votes, rather than just CQ Key Votes, with similar results  Results Hispanic substantive representation has increased overall over the past 30 years But for blacks it has stayed almost constant, and even declined a bit in recent years 17

18.  Declining support for minority-held position on roll calls. Hispanic Black

19. Georgia v. Ashcroft  These issues are becoming even more acute now, in light of the most important Supreme Court decision on the VRA in recent years. Georgia had reduced black populations in concentrated minority districts. DOJ refused Section 5 preclearance, arguing that the districting plan was retrogressive. Supreme Court overruled, said that states could legitimately pursue substantive representation.  Opens the door to more of this type of tradeoff.

20. Pre-Ashcroft Preclearance  Based on number of minority(-supported) candidates elected to office.  This, in turn, was measured by the number of districts effectively controlled by minorities. Used to be “65% rule” Then changed to majority-minority  In the 1990’s, the DOJ forced southern states to create more majority-minority districts. Often bizarrely shaped…

21. Louisiana 4 th (Black majority) “Mark of Zorro”

22. New York 12 th (Hispanic Maj.) “Bullwinkle”

23. Illinois 4 th (Hispanic majority) “Pair of Earmuffs”

24. Georgia 11 th (Black majority) “French Poodle Attacking with a Hatchet”

25. Retrogression and Polarization  The counting-districts approach to assessing retrogression works best when districts are either minority-controlled or not. Districting becomes a “black-and-white” issue  This implicitly assumes high degrees of polarization in the electorate.  When polarization decreases, this approach breaks down. (Pildes 2002)

26. Electability: High Polarization

27. % BVAP 0 P* 50100 High Polarization Measuring Descriptive Representation

28. % BVAP 0 P* 50100 No Minority Control High Polarization Measuring Descriptive Representation Minority Control

29. Electability: Low Polarization

30. % BVAP 0 P* 50100 No Minority Control High Polarization Measuring Descriptive Representation Minority Control % BVAP 0 P* 50100 Low Polarization

31. % BVAP 0 P* 50100 No Minority Control High Polarization Measuring Descriptive Representation Minority Control % BVAP 0 P* 50100 Coali- tional Low Polarization

32. % BVAP 0 P* 50100 No Minority Control High Polarization Measuring Descriptive Representation Minority Control % BVAP 0 P* 50100 PSPS Coali- tional Probable Control Low Polarization

33. % BVAP 0 P* 50100 No Minority Control High Polarization Measuring Descriptive Representation Minority Control % BVAP 0 P* 50100 Safe Control PSPSP Coali- tional Probable Control Packing Low Polarization

34. % BVAP 0 P* 50100 No Minority Control High Polarization Measuring Descriptive Representation Minority Control % BVAP 0 P* 50100 No Minority Control Safe Control PSPSP Coali- tional Probable Control Packing Low Polarization PIPI Influence

35. % BVAP 0 P* 50100 No Minority Control High Polarization Measuring Descriptive Representation Minority Control % BVAP 0 P* 50100 No Minority Control Safe Control PSPSP Coali- tional Probable Control Packing Low Polarization PIPI Influence How to make tradeoffs?

36. Need for New Standards  Current situation is characterized by low(er) polarization over the past 30 years. Now 15-20% net crossover in the South.  Need a standard for retrogression in descriptive representation not based on district categories. State may show that “gains in the plan as a whole offset the loss in a particular district.”  Also evidence of an emerging tradeoff between substantive and descriptive representation. Ashcroft addresses this directly for the first time.

37. Substantive Descriptive Pareto Frontier Ashcroft & Substantive Representation

38. Substantive Descriptive SQ Pareto Frontier Ashcroft & Substantive Representation

39. Substantive Descriptive SQ 1 2 3 4 Pareto Frontier Ashcroft & Substantive Representation

40. Substantive Descriptive SQ 1 2 3 4 Pareto Frontier Ashcroft & Substantive Representation Pre-Ashcroft X X

41. Substantive Descriptive SQ 1 2 3 4 Pareto Frontier Ashcroft & Substantive Representation Post-Ashcroft X

42. Substantive Descriptive SQ 1 2 3 4 P Pareto Frontier Ashcroft & Substantive Representation X A move to P is now non-retrogressive, if supported by minority community.

43. Measuring Representation  Ashcroft thus calls for A new measure of descriptive representation based on a statewide assessment of electoral possibilities A consistent measure of substantive representation that can be used to prospectively evaluate districting plans  Social science has well-developed methods to address both of these issues Calculating the probability of electing different types of representatives, based on district characteristics Summarizing voting behavior in legislatures  These are continuous measures, avoiding the categorization problem

44. 1. Determine relationship BVAP  Roll Call Voting in Congress (Representation Effect) Representation Equation Methodology  To measure expected substantive representation: 2. Determine relationship BVAP  Type of Representative Elected (Electoral Effect) Electoral Equation 3. Combine 1 & 2 to calculate average expected Vote Score across districts.

45. Electoral Equations  Collect outcomes for all relevant elections  Estimate BVAP  Type Elected Republican White Democrat Black Democrat (“Candidate of Choice”)  This yields the probability that each type of representative is elected, given district BVAP

46. Rep WD BD Electing Blacks to Congress, Non-South  Election probabilities are fairly constant outside the south.

47. Rep WD BD Electing Blacks to Congress, South  Increase in the probability of electing blacks in the south.

48. Representation Equations  Collect all individual votes in the legislature.  For each vote, determine which way the majority of minority representatives cast their ballots Count this as a vote in the “right” direction  For each legislator, calculate the percent of times they voted with the black majority This is their “Black Support Score” Can weight by degree of unanimity among black reps.  For each subgroup, estimate BVAP  Support Score

49. Roll Call Support for Blacks, Non-South  White Democrats supportive of minority policy positions Black Dems White Dems Reps

50. Roll Call Support for Blacks, South  Southern democrats increased support for black policy positions White Dems Reps Black Dems

51. The Emerging Pareto Frontier

52. Georgia’s Gerrymander RangeBaselineProposed 0-253126 25-401117 40-5020 50-6028 60+105 Plan: Reallocate black voters to elect Democrats

53. Is This Retrogression?

54. Georgia Legislative Elections, 1991-2002

55. Georgia Black Support Scores, 1999-2002

56. Descriptive Representation PlanInfluenceCoalitionMaj-MinE(CoC) Baseline (1999)1211011.2 Baseline (2000)121 13.6 Proposed1701312.5 Interim (2002)1701312.9 Slight fewer candidates of choice elected.

57. Substantive Representation Increase in mean and median vote scores. PlanMeanMedian Baseline (1999)59.0%46.1% Baseline (2000)62.3%50.2% Proposed66.6%75.9% Interim (2002)65.9%69.2%

58. 58 Renewal of the Voting Rights Act  These themes have been played out in recent court cases and the renewal of the Voting Rights Act.  Recently, certain expiring provisions of the Voting Rights Act (including Section 5) were up for renewal.  Last summer, Congress passed a bill extending these section for another 25 years.  In the legislation, descriptive representation was given primary importance. This was described as an attempt to overrule Ashcroft.  How does this affect what states can do?

59. Interpretations of the Renewal Act  There are three possibilities, in increasing order of latitude for states: 1. No district can ever have its level of BVAP reduced 2. No district can have its level of BVAP reduced beyond a certain point, which might be a. The level of BVAP needed for a “safe” district b. 50% BVAP c. The point of equal opportunity 3. The overall probability of electing minorities to a legislature cannot be reduced  Option (1) seems too restrictive: a “ratchet effect” And 2(b) gives primacy to an arbitrary cutoff number  So the real candidates are 2(a), 2(c), and 3. 59

60. Interpretations of the Renewal Act  The courts may be revisiting these issues soon, as the constitutionality of the renewed VRA is being challenged. The renewal placed a number of limits on states’ ability to act independent of the federal government. This goes against the Court’s recent trend towards supporting states’ rights (the New Federalism).  The real danger is that this will open up the entire Act for judicial review, with uncertain consequences.  Brings us back to the fundamental questions of minorities in a democratic society: Are strong protections for minority voters still necessary to enforce their incorporation into the political order? Or do these hinder the development of “normal politics,” in which special protections are no longer needed? 60

61. The Coming Debate  Congress is soon going to have to consider exactly these issues, as it decides what to do with Ashcroft in a renewed Section 5.  These issues are important not just with respect to the VRA and its renewal. How do we think about the goals and purposes of political representation in democracies? How can institutions best afford minorities influence over policy in a majoritarian system?

62. Overall Trends in Representation  These figures show that majority-minority districting has been a successful strategy for electing minorities to office. For Hispanics, has been good for substantive representation too. For blacks, however, we see a disjuncture between increased descriptive representation and flat or declining substantive representation.  Analyze this by estimating the changing relationship between District composition and the type of representative elected The type of representative elected and their support for minority-preferred policies in roll call votes.  This will yield the redistricting “hazard rate” of electing representatives less supportive of minority policies. 62

63. 65.4% 42.2% Southern Congressional Districts

64. Substantive Representation, South