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Racial and Partisan Issues in Voting and RedistrictingDavid Epstein
L6172: Law and Social Science
March 28, 2007
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
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?
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.
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
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
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
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.
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 Candidate2. Black Support White Candidate3. Black Rolloff
And the same for white voters
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)
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?
Trends in Electing Minorities to CongressDescriptive 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 years12
01
02
03
04
0
95 100 105 110Congress
Black Reps. Hispanic Reps.
Minority Representatives Elected to Congress, 1974-2004
Black
Hispanic
01
02
03
04
0
95 100 105 110Congress
Black Reps. Hispanic Reps.Maj-Black Dists. Maj-Hisp Dists.
Minority Representatives Elected to Congress, 1974-2004
For the first time, there are now more majority-Hispanic districts than majority-Black districts
Black
Hispanic
CA
CT
IL
IN
MD
MI
MO
NJ
NY
OHPA
WI
AL
AR
FL
GA
KY
LA
MS
NC
OK
SC
TN
TX
VA
South
Non-South
05
10
15
20
Pe
rcen
t Bla
ck R
epre
sen
tativ
es E
lect
ed
0 10 20 30State Black Voting Age Population
Black Representatives Elected By State, 1974-2004
AZ
CA
CO
FL
ILNJ
NM
NY
TX
South
Non-South
Hispanic
01
02
03
0P
erc
ent M
inor
ity R
epr
ese
ntat
ive
s E
lect
ed
0 10 20 30 40State Black Voting Age Population/Hispanic Voting Age Population
Minority Representatives Elected By State, 1974-2004
Intermediate case: Hispanics more responsive than blacks in south, but less than blacks outside of south
Trends in Passing LegislationSubstantive 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 years17
.45
.5.5
5.6
.65
Pe
rcen
tage
Min
orit
y S
uppo
rt
95 100 105 110Congress
Black Hispanic
Minority Support on Congressional Key Votes, 1974-2004
Declining support for minority-held position on roll calls.
Hispanic
Black
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.
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…
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)
0.5
1P
roba
bilit
y of
Ele
ctin
g B
lack
Rep
.
0 50 57.5 100Percent Black Voting Age Population
Electability: High Polarization
% BVAP
0
P*
50 100
No Minority Control
HighPolarization
Measuring Descriptive Representation
Minority Control
0.5
1P
roba
bilit
y of
Ele
ctin
g B
lack
Rep
.
0 40 50 100Percent Black Voting Age Population
Electability: Low Polarization
% BVAP
0
P*
50 100
No Minority Control
HighPolarization
Measuring Descriptive Representation
Minority Control
% BVAP
0
P*
50 100
LowPolarization
% BVAP
0
P*
50 100
No Minority Control
HighPolarization
Measuring Descriptive Representation
Minority Control
% BVAP
0
P*
50 100
Coali-tional
LowPolarization
% BVAP
0
P*
50 100
No Minority Control
HighPolarization
Measuring Descriptive Representation
Minority Control
% BVAP
0
P*
50 100
PS
Coali-tional
ProbableControl
LowPolarization
% BVAP
0
P*
50 100
No Minority Control
HighPolarization
Measuring Descriptive Representation
Minority Control
% BVAP
0
P*
50 100
SafeControl
PS PP
Coali-tional
ProbableControl
Packing
LowPolarization
% BVAP
0
P*
50 100
No Minority Control
HighPolarization
Measuring Descriptive Representation
Minority Control
% BVAP
0
P*
50 100
No Minority Control
SafeControl
PS PP
Coali-tional
ProbableControl
Packing
LowPolarization
PI
Influence
% BVAP
0
P*
50 100
No Minority Control
HighPolarization
Measuring Descriptive Representation
Minority Control
% BVAP
0
P*
50 100
No Minority Control
SafeControl
PS PP
Coali-tional
ProbableControl
Packing
LowPolarization
PI
Influence
How to make tradeoffs?
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.
Substantive
Descriptive
SQ
1
2 3
4
ParetoFrontier
Ashcroft & Substantive Representation
Pre-Ashcroft
X X
Substantive
Descriptive
SQ
1
2 3
4
ParetoFrontier
Ashcroft & Substantive Representation
Post-Ashcroft
X
Substantive
Descriptive
SQ
1
2 3
4 P
ParetoFrontier
Ashcroft & Substantive Representation
X
A move to P is now non-retrogressive,if supported by minority community.
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
1. Determine relationship BVAP Roll Call Voting in Congress (Representation Effect)
BVAPVSE ,θ|
RepresentationEquation
Methodology To measure expected substantive representation:
BVAPVSE |
2. Determine relationship BVAP Type of Representative Elected (Electoral Effect)
BVAPP |θ
ElectoralEquation
θ
3. Combine 1 & 2 to calculate average expected Vote Score across districts.
Electoral Equations Collect outcomes for all relevant elections Estimate BVAPType Elected
Republican White Democrat Black Democrat (“Candidate of Choice”)
This yields the probability that each type of representative is elected, given district BVAP
0.5
1
0 .2 .4 .6 .8 1Black Voting Age Population
PEO=41%
1975 to 1982
0.5
1
0 .2 .4 .6 .8 1Black Voting Age Population
PEO=36%
1983 to 19900
.51
0 .2 .4 .6 .8 1Black Voting Age Population
PEO=38%
1991 to 1998
0.5
1
0 .2 .4 .6 .8 1Black Voting Age Population
PEO=36%
1999 to 2006
Rep
Rep Rep
Rep
WD
WD
WD
WD BDBD
BDBD
Electing Blacks to Congress, Non-South
Election probabilities are fairly constant outside the south.
0.5
1
0 .2 .4 .6 .8 1Black Voting Age Population
PEO=96%
1975 to 1982
0.5
1
0 .2 .4 .6 .8 1Black Voting Age Population
PEO=79%
1983 to 19900
.51
0 .2 .4 .6 .8 1Black Voting Age Population
PEO=45%
1991 to 1998
0.5
1
0 .2 .4 .6 .8 1Black Voting Age Population
PEO=42%
1999 to 2006
Rep
Rep
Rep
Rep
WD
WD
WD
WD BDBD
BDBD
Electing Blacks to Congress, South
Increase in the probability of electing blacks in the south.
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 BVAPSupport Score
0.2
.4.6
.81
Bla
ck S
uppo
rt S
core
0 .2 .4 .6 .8 1Black Voting Age Population
1975 to 1982
0.2
.4.6
.81
Bla
ck S
uppo
rt S
core
0 .2 .4 .6 .8 1Black Voting Age Population
1983 to 19900
.2.4
.6.8
1B
lack
Sup
port
Sco
re
0 .2 .4 .6 .8 1Black Voting Age Population
1991 to 1998
0.2
.4.6
.81
Bla
ck S
uppo
rt S
core
0 .2 .4 .6 .8 1Black Voting Age Population
1999 to 2006
Roll Call Support for Blacks, Non-South
White Democrats supportive of minority policy positions
Black Dems
White Dems
Reps
.2.4
.6.8
1B
lack
Sup
port
Sco
re
0 .2 .4 .6 .8Black Voting Age Population
1975 to 1982
.2.4
.6.8
1B
lack
Sup
port
Sco
re
0 .2 .4 .6 .8Black Voting Age Population
1983 to 1990.2
.4.6
.81
Bla
ck S
uppo
rt S
core
0 .2 .4 .6 .8Black Voting Age Population
1991 to 1998
.2.4
.6.8
1B
lack
Sup
port
Sco
re
0 .2 .4 .6 .8Black Voting Age Population
1999 to 2006
Roll Call Support for Blacks, South
Southern democrats increased support for black policy positions
White Dems
Reps
Black Dems
The Emerging Pareto Frontier
95
96
97
9899
100 101
102
103
104
105
.5.5
2.5
4.5
6.5
8.6
Pe
rcen
t of V
ote
s A
gre
eing
with
Bla
ck M
ajo
rity
.03 .05 .07 .09Percent Black Democrats Among All Representatives
All Districts
Georgia’s Gerrymander
Range Baseline Proposed
0-25 31 26
25-40 11 17
40-50 2 0
50-60 2 8
60+ 10 5
Plan: Reallocate black voters to elect Democrats
Georgia Legislative Elections, 1991-2002
0.2
.4.6
.81
Pro
babi
lity
of E
lect
ion
0 .25 .5 .75 1Black Voting Age Population
Republicans White Dems Black Dems
Georgia Black Support Scores, 1999-2002
.4.6
.81
Bla
ck S
uppo
rt S
core
0 .2 .4 .6 .8Black Voting Age Population
Republicans White Dems Black Dems
Descriptive Representation
Plan Influence Coalition Maj-Min E(CoC)
Baseline (1999) 12 1 10 11.2
Baseline (2000) 12 1 12 13.6
Proposed 17 0 13 12.5
Interim (2002) 17 0 13 12.9
Slight fewer candidates of choice elected.
Substantive Representation
Increase in mean and median vote scores.
Plan Mean Median
Baseline (1999) 59.0% 46.1%
Baseline (2000) 62.3% 50.2%
Proposed 66.6% 75.9%
Interim (2002) 65.9% 69.2%
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?
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 reduced2. No district can have its level of BVAP reduced beyond a certain
point, which might bea. The level of BVAP needed for a “safe” districtb. 50% BVAPc. 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
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
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?
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
0.5
1
0 .2 .4 .6 .8 1bvap
1975 to 1980
0.5
1
0 .2 .4 .6 .8 1bvap
1981 to 19860
.51
0 .2 .4 .6 .8 1bvap
1987 to 1992
0.5
1
0 .2 .4 .6 .8 1bvap
1993 to 2000
Probability of Electing Different Types of Representatives
65.4% 42.2%
Southern Congressional Districts
.2.4
.6.8
1B
lack
Sup
port
Sco
re
0 .1 .2 .3 .4Black Voting Age Population
1975 to 1980
.2.4
.6.8
1B
lack
Sup
port
Sco
re
0 .2 .4 .6Black Voting Age Population
1981 to 1986.2
.4.6
.81
Bla
ck S
uppo
rt S
core
0 .2 .4 .6Black Voting Age Population
1987 to 1992
.2.4
.6.8
1B
lack
Sup
port
Sco
re
0 .2 .4 .6 .8Black Voting Age Population
1992 to 2000
Substantive Representation, South