Voting Rights and Legislative “Delegation Gerrymanders”

In the recent history of metro Atlanta, control of the Fulton County delegation in the Georgia General Assembly has been a huge political prize. In Georgia, as in many states (and particularly those in the South where the County has long been the most important unit of local government), the legislative delegations from each county exercise significant control over legislation affecting local governments. Whether by the rules of the legislature or by custom, “local courtesy” practices in many states mean that a small number of legislators have the power to block legislation from reaching the full legislature, and if legislation attains either unanimous or supermajority approval from members of a county’s delegation, members of the full legislature are expected to defer and approve it.

As I’ve written before, when Democrats (and particularly African American Democrats) held a majority on the Fulton County delegation, they were able for more than two decades to thwart efforts of north Fulton suburban politicians to enact measures (like incorporating cities) that furthered an agenda of suburban separatism. Since Republicans have taken over both legislative houses in 2004, this state of affairs was nearly certain to change, and Republican-led reapportionment and redistricting of both houses of the legislature produced GOP majorities among the Fulton delegations in both houses, even though Fulton County gave nearly two-thirds of its votes to Barack Obama in 2012. Republicans accomplished this unlikely goal by creating districts that crossed the boundaries of Fulton and adjacent suburban counties, making more politicians from white, Republican, and affluent areas members of the Fulton delegation.

This is a more common practice in Georgia and throughout the south  than I had realized, though I shouldn’t be surprised, given how central local courtesy is to the workings of the state legislature. It also happens to be relatively understudied. Writing in the Yale Law Journal in 1992, Binny Miller [1] makes a compelling case for closer analysis of the role of local legislative delegations, particularly with regard to the potential for gerrymandering legislative delegations for partisan and especially racial ends [link to paid access through Hein].

Delegations… rule and govern the cities and counties under their jurisdiction. Yet racial discrimination has infused the politics of delegations since their inception (203).

Miller’s article also helps to explain something that has bothered me while I’ve been thinking and writing about the gerrymandered Fulton County delegation and the proposals it just floated to redistrict the Fulton County Commission and place control of elections in the county in the hands of the legislative delegation instead of the County Commission. Since these maneuvers clearly impact the ability of African American residents of the county to elect representatives of their choosing, and seem clearly intended to enable the passage of legislation with which the county’s minority voters overwhelmingly disagree, why was the legislature allowed to stack the Fulton delegation in this way without being blocked by Section 5 of the Voting Rights Act (which is, for now, still the law of the land)?

As Miller explains, legislative delegations and their roles are poorly understood by the courts and voting rights advocates, who typically imagine that legislative delegations are subsidiary parts of the legislatures or administrative subdivisions thereof, and therefore not subject to the controls of Section 5.

[The Supreme Court’s 1992 holding in] Presley [v. Etowah County Commission], however, effectively blocked the use of section 5 against discrimination in the post-election stage by holding that “[c]hanges which affect only the distribution of power among officials [i.e. the assignment of committee seats] are not subject to section 5 because such changes have no direct relation to, or impact on, voting” (149).

Miller argues that this interpretation, which ignores the way that legislative delegations filter and drive legislation affecting their constituents (effectively acting as “superlegislatures”) makes scrutiny under Section 5 both appropriate and needful:

Although local delegations have operated as the moving force behind many discriminatory electoral structures, from at-large methods of election to suspect reapportionment plans, they have acted free of any real legal constraints. Unlike those of other governing bodies, the electoral structures of legislative delegations have not been challenged legally, and the true breadth of their power has been largely ignored (118).

While courts have chosen to consider only the apportionment of districts on an equal population basis and in terms of vote dilution, any time a county’s population is too large to make it entitled to n legislative seats entirely within its boundaries, but too small to be entitled to n+1, a politically freighted apportionment decision is created: The county will have a seat that includes parts of another county. The question is, which parts? When reapportionment must

incorporate noncounty voters in the delegation’s constituency, electoral maneuvering can be used to discriminate against minorities in ways separate and apart from any discrimination in the legislative apportionment (157)

In other words,

A “delegation gerrymander” occurs when the legislative reapportionment satisfies prevailing voting rights standards, but the delegation reapportionment nonetheless impairs the voting strength of minority groups (157).

While such delegation gerrymanders fix the very operation of state governments in ways that can damage the interests of unprivileged communities, they have been construed as largely beyond the reach of the Voting Rights Act. In Fulton County, where politics has become so starkly polarized on congruent racial and partisan lines, and where most of the surrounding suburban counties are significantly whiter than Fulton, delegation gerrymandering was not only politically inevitable, but amply precedented. Delegation gerrymanders have been a form of disfranchisement hiding in plain sight.

It’s particularly ironic that the legislative gerrymander has been used to aggrandize the power of north Fulton Republicans because a prior formation of Fulton delegation included Democratic legislators whose districts spanned Fulton and DeKalb counties and included large black constituencies. Sandy Springs political activists Eva Galambos and Tiberio de Julio sued the State of Georgia under the Voting Rights Act in 2001 because the power of the Fulton delegation thus constituted was a consistent roadblock to incorporating a city in Sandy Springs. Although their suit failed, the shift in statewide power to the GOP meant that north Fulton got the last laugh–since their effort to use the Voting Rights Act to attack the delegation gerrymander failed, the tool was close at hand when it was needed to protect conservative north Fulton interests.

1. Miller, Binny. “Who Shall Rule and Govern? Local Legislative Delegations, Racial Politics, and the Voting Rights Act.” The Yale Law Journal 102, no. 1 (October 1, 1992): 105–203. doi:10.2307/796773.

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6 comments on “Voting Rights and Legislative “Delegation Gerrymanders”

  1. […] thus presents a recurrent problem: determining the relevant universe of people for apportionment is inherently political. The Project on Fair Representation would like to make this a discussion about formal principles […]

  2. […] also wrote some weeks ago that legislative delegations fall between the cracks of voting rights law. The courts have […]

  3. […] ability to increase that rate. This legislation reached the Republican-controlled House because the Fulton County delegation in the legislature was transformed by redrawn legislative districts to yield a Republican majority […]

  4. […] legislative district boundaries as a means by which north Fulton County Republicans have tried to overcome the Democratic leaning of the county, which went 2-1 for Obama over Romney in 2012. In Georgia, which has relatively weak home rule, a […]

  5. […] This has an important tie to local governance in much of the south, where county policy is effectively set by the state legislative delegation from each county.  The rules for Autauga County are driven by […]

  6. […] of decisions affecting property owned by affluent whites. The use of the state legislature to manipulate legislative districts and redistrict the county commission has reduced the ability of Black residents to influence […]

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