California law states that the criteria to be used for redistricting should be considered in rank order. It also places compliance with the Voting Rights Act above nearly all other redistricting criteria. So, Voting Rights Act compliance is very important and will “win” if in conflict with other criteria. That is, a district may be drawn that is not the most compact, not nested, has slightly unequal population, and crosses city or county borders, if it must be drawn that way to comply with the Voting Rights Act.
So, what does the Voting Rights Act require? There are two parts of the Voting Rights Act that California must consider in redistricting: Section 2 and Section 5.
*Section 2 prohibits the denial or abridgment of voting rights on the basis of race or protected language minority status. This includes an equal opportunity to elect a candidate of choice. Courts have interpreted this to prohibit practices that “dilute” minority voting strength, such as districts that divide up a minority population so that voters cannot constitute a majority in a district (this is called “cracking”) or that over-concentrate a minority population into one district rather than dividing it into two or more districts where it could have constituted a large share of the population (this is called “packing”)
So, the Commission will have to avoid “cracking” (dividing) minority populations that could be drawn together into a district where they could form a majority and also avoid “packing” (over-concentrating) minority populations into fewer districts than might be drawn given population concentrations and distributions.
That said, the use of race in redistricting is complex due to several US Supreme Court cases that challenged majority-minority districts under the 14th Amendment to the Constitution. In a situation such as the California 2011 redistricting, where a body will be drawing lines to respond to population changes (rather than in response to a lawsuit where the the electoral system is found to be discriminatory), the Supreme Court has determined that race can be considered, but should not play the sole or predominant factor in how lines are drawn. That is, it would be unconstitutional for the Commission to draw districts based solely on the race of their residents. In addition, the consideration of race should not subjugate “traditional redistricting principles.” For example, districts should not ignore a requirement like contiguity (keeping districts whole) solely to obtain a certain proportion of minority population.
*Section 5 of the VRA: requires certain jurisdictions to obtain permission (called “preclearance”) before making changes to their voting procedures, including redistricting. This includes redistricting in California since Section 5 covers four California counties: King, Merced, Monterey, and Yuba. After the redistricting plan is adopted, California must obtain “preclearance” from the US Department of Justice or from a federal court in Washington, DC before it may hold any elections using the new districts.
In deciding whether to preclear the plan, the federal government will look at the redistricting to determine if the new plan was drawn with a racially discriminatory purpose or if it is likely to have a discriminatory or “retrogressive” effect. Retrogression means whether the new plan makes voters worse off than they were in old plan in terms of race or protected language minority status. For example, the federal government will check on whether the new plan provides black voters with fewer districts or opportunities to elect candidates of their choice than they had in the previous plan. If it does, the state will have to prove that the retrogressive effect was unavoidable and not done for a discriminatory reason. The State of California will have to prove that its plan does not discriminate, does not make voters worse off due to their race, and that any changes were unavoidable.
In California, only four counties are covered by Section 5. However, because the districts in other parts of the state may affect how lines are drawn in those four counties (and vice versa), the State will likely submit the entire statewide plan for preclearance. Federal authorities will review the districts statewide, but may only object to districts that contain all or part of the four covered counties.
The Chief Justice Earl Warren Institute for Law and Social Policy at UC Berkeley School of Law has developed an issue brief with more information about the consideration of race in redistricting, including a discussion of the Voting Rights Act. Issue Brief: Voting Rights Act, Race and Redistricting