With preclearance gone, redistricting in Arizona enters a new frontier

For the first time in decades, Arizona’s map-drawers are crafting the state’s new congressional and legislative districts without a key provision of the Voting Rights Act guiding their decisions, stoking concerns about representation for Latino and Native American voters.

Section 2 of the Voting Rights Act is the heart of the landmark 1965 law. It prohibits any government entity from imposing a law or other requirement that denies or abridges “the right of any citizen of the United States to vote on account of race or color.” 

For states or smaller jurisdictions considered to have a history of discriminatory election laws — of which Arizona was one — the Voting Rights Act contained an additional tool to ensure compliance with that law. Section 5 of the law required those entities to get pre-approval, known as “preclearance,” from the U.S. Department of Justice for all changes to the laws and procedures governing elections and voting.

That preclearance requirement also applied to the decennial redistricting, meaning Arizona’s maps were crafted to avoid having the DOJ reject them.

The U.S. Supreme Court gutted the preclearance requirement in 2013, opening the door for waves of legislation in former preclearance states that never would have passed muster. Now, states previously covered by Section 5 are drawing new districts for the first time without the Justice Department looming over them. 

The Arizona Independent Redistricting Commission still must draw districts where Latino and Native American voters can elect the candidates of their choice. And anyone who believes the commission’s maps don’t comply with the Voting Rights Act can sue under Section 2 of the law. But that puts the onus on the person suing, rather than on the commission, as preclearance did under Section 5.

When it comes to redistricting, one of the biggest differences between the pre- and post-preclearance worlds could be described with one word: retrogression.

Retrogression refers to a change in the law that diminishes minority voting strength, and it was one of the surest ways to have preclearance denied for a redistricting map. If a district’s minority population is smaller than its predecessor district, or that population’s voting strength is diminished, the Department of Justice was likely to reject a map. Arizona’s first AIRC in 2001 saw its legislative map rejected on those grounds. 

Now, retrogression is no longer a concern, said Bruce Adelson, who was an attorney on the Justice Department’s civil rights team that struck down Arizona’s proposed legislative map 20 years ago. 

Arizona’s maps still need to pass muster under Section 2 of the Voting Rights Act, but that is a less strict standard than retrogression that examines the totality of circumstances.

With retrogression, previous commissions couldn’t reduce the number of majority-minority districts or eliminate districts that otherwise gave minority voters the opportunity to elect candidates of their choice, Adelson said. Reducing minority voting strength within those districts was also a red flag. 

But under Section 2, any lawsuit challenging the districts must show data that justifies the need for a certain number of majority-minority districts or a certain level of minority voting power within those districts. 

“That’s textbook retrogression Section 5 law — you have five districts (before), you can’t have fewer than five (now). But that’s not true anymore,” Adelson said. 

Gerald Hebert, also a former attorney with the voting section of the Justice Department’s civil rights division, said reductions in a district’s minority voting strength wasn’t an automatic disqualifier under preclearance. A proposed district could still pass muster if the total percentage of minority voters in a district goes down, he said. But the AIRC would have to show that it still provides minority voters with the same opportunity to elect their preferred candidate.

“It was effective before, you just have to look at the newly configured district and see if it still performs. And if it does, it’s not retrogressive,” Hebert said. “It can’t weaken the overall performance of voters within the district, regardless of the percentage.”

Less leverage

In Arizona, groups representing Latino and Native American voters say they can already see the difference as the Arizona Independent Redistricting Commission redraws the state’s congressional and legislative boundaries. 

The last AIRC in 2011 put a high premium on achieving preclearance on the first try, hoping to avoid the rejections that struck down maps in previous decades, requiring commissioners to go back to the drawing board. That led the commission to largely adopt proposed districts drawn by Latino and Native American groups. 

When determining whether to preclear a redistricting plan, the Justice Department would look first at how the proposed districts performed for minority voters. But it would also reach out to leaders in minority communities and to organizations that represented their interests. That gave groups advocating for Latino and Native American districts significant influence in the decision.

“That played a key part. It wouldn’t be the dispositive part — that would be the analysis and the election results. But, clearly, if a redistricting body is doing something that the minority community, minority organizations, minority elected officials disagree with, that’s a huge problem,” Adelson said. 

This year, those groups feel the lack of preclearance has diminished their clout. The Navajo Nation and a Hispanic Democratic organization called the Arizona Latino Coalition for Fair Redistricting have both submitted proposed maps to the AIRC, both of which were largely rejected.

The Latino Coalition proposed both congressional and legislative districts. While the commission was largely amenable to the group’s proposal for a predominantly Latino Phoenix-area congressional district to replace the district currently represented by U.S. Rep. Ruben Gallego, it was less receptive to the coalition’s desires for U.S. Rep. Raul Grijalva’s southern Arizona-based district.

Specifically, the coalition wanted Grijalva’s district, which would run from Tucson to Yuma and up through the Tohono O’odham Nation, to include heavily Latino parts of the western Phoenix area, as the pre-existing district does. But the majority of the commission was opposed to having that district again encroach on the West Valley. Those areas of Avondale and Tolleson will instead go to Gallego’s new district.

Grijalva’s new district, as it’s drawn on the draft map, has a Hispanic voting age population of just over 51%, compared to more than 55% for his current district. The Hispanic citizen voting age population in the new district — the 2011 commission didn’t track that population, so there’s no basis for comparison — is 47%.

The Latino Coalition’s proposed legislative districts fared worse at the commission. The group wanted to increase the number of Latino “opportunity” districts — districts where Latino voters, either on their own or in conjunction with like-minded voters, have the opportunity to elect the candidate of their preference — from seven to eight. The commission considered the plan, incorporated it into a map, then decided against using it, opting instead for seven Latino districts like Arizona has had for the past decade.

Without preclearance, the redistricting process becomes more arbitrary, said Danny Ortega, an attorney who works with the Latino Coalition and represented its predecessors before the previous two redistricting commissions. Now, the coalition must be more vigilant with the commission and more aggressive in representing its interests, he said.

“It’s not that we don’t have leverage. It’s that we lost some leverage in not having Section 5. Clearly, it was the type of leverage that I believe led to a fair process in the past that’s not there now,” Ortega said.

Native Americans, who cover a geographically expansive area but have far fewer numbers than Latinos, have traditionally had one legislative district where they constitute a majority. And the AIRC plans to continue that trend for the state’s eighth Voting Rights Act district, drafting a predominantly Native American district that covers much of northern Arizona.

But tribal groups, in particular the Navajo, don’t feel the proposed District 6 ensures that they’ll have the opportunity to elect the legislators of their choice. The Navajo Nation Human Rights Commission drew its own plan for the district and submitted it to the commission. Only Democratic Commissioner Derrick Watchman, a member of the Navajo Nation himself, supported it. 

The other commissioners disliked the way it conflicted with some of their other plans for northern Arizona, including predominantly white areas where many people didn’t want to be drawn in with the tribes. They also worried that the district’s low population would be legally problematic. 

The U.S. Supreme Court permits population deviations of up to 5% above or below average, as long as the people who drew the map can show a permissible reason, such as complying with the Voting Rights Act. The Navajo Nation’s proposed district was 7% under the average district population of about 238,000 people, which Leonard Gorman, the executive director of the Navajo Nation Commission on Human Rights, said takes into consideration the likely undercount of tribal areas on the 2020 Census.

That stands out from previous decades, when the Navajo Nation’s proposals to the commission carried a lot more weight. Gorman said the 2011 AIRC adopted a Native American legislative district that was largely similar to the one the tribe proposed. 

“Specifically due to the preclearance provision … they had to respect the Navajo Nation plan,” Gorman said. 

Gorman worries that the proposed District 6, as the commission drew it, won’t perform as well for Native American voters as its predecessors, or as well as the district that the tribe proposed. Part of that, he said, is that the AIRC’s consultants erred in the way they calculated Native American citizen voting age population in a way that could jeopardize Indian voting rights. 

Past commissions calculated Native American voting age population by counting only people who identified on the census as non-Hispanic, one-race Native American. The current commission counted anyone who identified as non-Hispanic Native American, even if they were mixed race. 

Gorman said the distinction between the two numbers is important. People who identify as mixed-race Native Americans are less likely to live on tribal lands. Counting them instead of people who identify on the census as one-rate Native Americans increases the proposed district’s Native American voting age population. But those additional people are less likely to live on tribal lands.

And that’s troubling, Gorman said, because Native Americans who don’t live on tribal lands simply don’t deal with many of the same issues as those who do.

The commission now includes both numbers for its demographic breakdown of its proposed districts. But Gorman is still concerned about potential underperformance. Many Native American voters don’t trust voting by mail because of inadequate mail service in tribal areas, he said. Navajo prefer to vote in person, turning Election Day into a social as well as civic event. But issues like poor road conditions and vast distances between polling places have negative effects on turnout, Gorman said, so a district needs a higher percentage of Native American voters to ensure that they can elect the candidates of their choice.

“I’m very concerned that there’s some aspects of, let me just say, trickery at play here with the activities of Arizona redistricting,” Gorman said. 

The hammer is gone

Preclearance wasn’t the only way for minority voters to challenge maps that diminished their representation, but it was the most effective. In previous decades, the Justice Department acted as a backstop that eliminated the need for costly litigation. Now, groups that feel they’ve been disenfranchised must sue under Section 2, which takes time and money, and is a generally more difficult hurdle to clear.

“Section 5 was a hammer. But the real substance is Section 2,” Ortega said. 

Without retrogression, previous maps become irrelevant, said Douglas Spencer, a redistricting expert and an associate professor of law at the University of Colorado. All that matters now is whether the new districts are justifiable under the latest census data. Other factors that the commission considers in redistricting, such as compactness and competitiveness, will also be taken into consideration.

“You’re writing on a clean slate every decade,” Spencer said.

Adelson said dropping the Hispanic citizen voting age population in Grijalva’s district below 50% likely would have been a problem under preclearance. The commission would have had to demonstrate why reducing the overall percentage of Latinos in the district wouldn’t reduce their voting strength. The failure to do so doomed the first AIRC’s legislative map in 2002. 

Hebert took a slightly more permissive view. Going under 50% would be a warning sign, he said, but wouldn’t necessarily be fatal to a district if the AIRC could show that there are enough other voters in the district who vote for Latinos’ candidates of choice.

Under Section 2, the bar for challenging those districts gets higher.

“In this instance, performance is the ballgame,” Hebert said. 

There’s another challenge for Section 2 lawsuits, Spencer said, in that the federal courts are simply less aggressive in enforcing the Voting Rights Act than they have been in the past. That trend has continued from the U.S. Supreme Court rulings that weakened and then eliminated the preclearance requirement, as well as more recent rulings, such as Arizona Attorney General Mark Brnovich’s success in defending a state law banning third-party ballot collection, or “ballot harvesting” as critics often refer to it.

Federal courts’ interpretation of what constitutes a Voting Rights Act violation has become more permissive as well, Spencer said, making it more difficult for lawsuits filed under Section 2 to prevail. 

The commission is listening

The new congressional and legislative districts are not yet set in stone. The commission is beginning the 30-day public comment period on its draft maps, which is mandated by the Arizona Constitution. Once that period, which includes a series of public meetings across the state, comes to an end, the AIRC will adjust the district boundaries before approving its final maps.

Ortega said it remains to be seen how seriously the AIRC will take the Latino Coalition’s concerns. If the coalition doesn’t believe that the new districts adequately protect Hispanic voting strength, litigation is likely.

Section 2 isn’t the coalition’s only option if it goes to court, Ortega noted. It could bring claims under the United States and Arizona constitutions as well. 

“I want to give the commission the benefit of the doubt. And if they don’t, then we’ll have to consider our next steps,” Ortega said.

Litigation is something the Navajo Nation hopes to avoid, Gorman said, but won’t discount entirely. 

“That’s something that the Navajo Nation is making the effort to avoid because it’s very expensive to go down that track,” Gorman said. “It’s not a favorite avenue, like the Navajo Nation has done in the past.”

Erika Neuberg, the independent chairwoman of the AIRC, said the commission is committed to protecting minority voting rights. Preclearance may be gone, she said, but the commission’s obligations to minority voters hasn’t changed. When the commission’s work is done, Neuberg said she’s confident that the AIRC will have a product that will not only survive any court challenges, but would have passed preclearance if it were still required.

If preclearance were still a factor, Neuberg said it’s possible that the commission would have met earlier and more frequently with groups representing Latino and tribal interests. But she noted that such meetings have taken place with commissioners and the AIRC’s legal counsel, and said she’s never turned down a request for a meeting. 

“I can’t imagine doing it any differently than we’re doing now because we’re doing due diligence to learn and study everything,” she said. 

The commission has yet to approve its final maps. Before that happens, the AIRC will listen to the concerns of communities across the state. Neuberg said the commission also must still receive an analysis of racially polarized voting in its proposed districts, an important step in determining whether they comply with the Voting Rights Act. 

That means there could still be substantive changes to the proposed minority districts, such as Grijalva’s 7th Congressional District. Neuberg said she doesn’t want to see retrogression in the AIRC’s maps, regardless of whether that’s no longer a requirement. 

“I am very undecided on what the right solution is. It’s very complicated,” Neuberg said of the debate over how to make that district more heavily Latino and whether to extend it into the West Valley. 

But the commission does have other priorities it must consider as well. Neuberg said the Navajo Nation’s proposed legislative district would have put the map in legal jeopardy by exceeding the level of population deviation traditionally permitted by the courts. And the Latino Coalition’s proposal for an eighth Hispanic legislative district would have made it more difficult to create competitive districts elsewhere on the map, she said. 

Nonetheless, the commission has a responsibility to ensure that minority voters are empowered by the maps it draws, Neuberg said. The Voting Rights Act is still in effect, and the Arizona Constitution requires the commission to abide by that. Regardless of whether preclearance is still in effect, Neuberg said the AIRC will respect that.

“I am concerned about this,” she said. “It’s complicated. And I look forward to having a lot of meaningful dialogue with the state about it.”