A problem springs up every 10 years, with the new census numbers, in cities, counties, and school units that elect their council members, commissioners, and school board members from districts:  how, and how much, to take race into account in drawing district lines.

The key consideration is Section 2 of the federal Voting Rights Act of 1965.  Section 2 prohibits the use of election procedures that abridge the voting rights of minorities.  It has come to the fore in recent decades in connection with the use of election districts.

Traditionally in North Carolina, most governing boards were elected at large—all the voters in the city voted for all seats on the city council, and the same for counties and their board of commissioners and school units and their school boards.  A good number of these at-large jurisdictions had significant African-American populations but sparse records of electing African-Americans to the governing boards.  Section 2 lawsuits—or threats of Section 2 lawsuits—in many places forced the conversion from at-large elections to district elections.  By creating districts with predominately African-American populations, courts (or the jurisdictions themselves, voluntarily) could give African-Americans a much better opportunity to elect candidates of their choosing.

Some years ago, the U.S. Supreme Court held that Section 2 requires the drawing of district lines with the conscious intent of helping minorities if three things are true.  Call them the “Three Factors.”  First, the minority group must be sufficiently large and geographically compact to constitute a majority in a single-member district.  Second, the minority group must be “politically cohesive.”  And third, the white majority must vote sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate.

So, in a situation in which (1) a geographically-reasonable district could be drawn in which African-Americans made up a majority, (2) the African-American voters tended to vote for the same set of candidates, and (3) white voters voted as a bloc and could defeat the candidates favored by the African-Americans, then the failure to draw the majority-black district would be a violation of Section 2.  In other words, where the Three Factors exist, Section 2 would require the drawing of the majority-black district.

But what happens in a situation that may be fairly common:  applying the new census numbers, it becomes clear that no district can be drawn with an African-American majority, but one or more districts can be drawn where a combination of African-American voters and white voters who might “crossover” to vote for candidates favored by African-American voters together create a majority?  That is, the politically cohesive minority group plus the white crossover vote can avoid the defeat of the minority’s preferred candidate.  The Three Factors are present, except that African-Americans make up a majority only in conjunction with like-minded white voters.  Is there a violation of Section 2 if the jurisdiction does not create such a crossover district?

In a decision in 2009, in a case arising in North Carolina, the U.S. Supreme Court said there is no violation.  If African-Americans cannot make up an actual majority of the voting age population, Section 2 does not require that districts be drawn with race in mind in an attempt to increase the likelihood that African-American voters will be able to elect candidates of their choice.

In 1991, the North Carolina General Assembly, redistricting the state House of Representatives, applying the Three Factors, determined that it must draw a majority-black district, District 18, in the southeastern part of the state.  That district split counties despite a provision in the state constitution requiring that legislative districts must be composed of whole counties.  The justification for not following the constitutional requirement was that the federal Voting Rights Act was higher law and must be followed.

When the General Assembly redistricted following the 2000 census, it kept District 18 in tact—splitting counties—even though the African-American population had fallen below a majority.  The justification was that even though the African-American population had fallen below a majority, it was still at such a level (39%) that, when teamed with white voters who did not vote with the white bloc, African-Americans could elect representatives of their choice.  This “crossover” white vote created a “crossover district” that functioned as a majority-black district, and thus was required, the state argued, by Section 2.

In Bartlett v. Strickland, 129 S.Ct. 1231 (2009), the U.S. Supreme Court disagreed.  Unless a district can be drawn in which a racial minority makes up a majority of the voting age population, the decision not to draw a “crossover” or “minority-influence” district is not a violation of Section 2.  The issue is not an “effective majority” but an actual majority.  If the racial minority cannot constitute a majority in a district, Section 2 does not require that conscious intent to help minorities be used in drawing district lines.

Every 10-year round of redistricting sets off significant political battles.  The round after the 2010 census will undoubtedly have many, in the drawing of electoral districts for cities, counties and school boards, as well as for the state legislature and the U.S. House of Representatives.

One that is sure to arise is the battle over “crossover” districts.  The U.S. Supreme Court has said that Section 2 does not require them, but it made clear that Section 2 also does not prohibit them.  The battle may be especially sharp in places that have had majority-black districts for two decades or more but where, after the 2010 census, such districts are no longer possible.