The following are excerpts of the Monday, November 22, 2004 interview with Laughlin McDonald (Director of the American Civil Liberties Union's Voting Rights Project) by Heather Gray (radio producer on WRFG-Atlanta, 89.3FM). McDonald, often referred to as the voting rights expert in the United States, played an instrumental role in the writing and passage the extension of the Voting Rights Act in the 1980's and then has worked to ensure it's implementation.
The following excerpts address the gerrymandering in Texas that led to the defeat of Democratic U.S. House members in that state, possible law suit challenges for being denied the right to vote, and suggestions for changing the electoral process in the U.S.
Gray: Would Tom Delay's gerrymandering in Texas, to create Republican districts, be a violation under voting rights act?
McDonald: It could if it had an adverse racial impact - (then) it could certainly fall under the non-dilution principles of Section 2 (of the Voting Rights Act) and it would also be required to be precleared under Section 5 of the Voting Rights Act.
But you touch what's a major problem in our political process today, and that is "partisan gerrymandering".
It's gotten out of hand. In Texas, when the Republicans gained control of the legislature, they decided they would try to gerrymander the Democratic Party out of existence to the extent that they could. They redrew the districts with as many Republican performance districts as they could to maximize the opportunities of Republicans (so that) even though they were not the majority of the residents of those districts they would end up with an overall majority control of those districts.
Pennsylvania did the very same thing. The Republicans there implemented a redistricting plan that attempted to gerrymander to the maximum extent possible in a way that maximized the opportunities of Republicans.
And in Georgia, that was controlled by the Democrats, the Democrats did the very same thing. They enacted plans that tried to minimize the impact of Republican voters and they did it in a host of ways. If you had to lose a district, it would be a Republican district or seat. They reintroduced multi-member districts as a way of keeping a single member district from electing a Republican.
Some will say, "that's just politics". When the Republicans get the upper hand, they do the best they can to maximize their opportunities. When the Democrats get the upper hand, they do the best they can.
But I would think that what we need is a rule, a legal standard that can be applied by the courts that would prohibit any party or faction from getting unfair advantage in the political process. The problem is exacerbated, in my view, by the fact that the trial courts dismissed the challenge, brought by Democrats in Texas, that they had been unfairly gerrymandered. It said that there's no such thing as partisan gerrymandering . . . and the three judge court dismissed the Democrats' claim. In Pennsylvania, the Democrats brought a partisan gerrymandering claim and the three judge court dismissed it.
There's no standard for partisan gerrymandering.
In Georgia, however, the Republicans bring a lawsuit claiming that they were gerrymandered and the three court judge grants their claim and invalidates the redistricting plan that the Georgia legislature had drawn. (This) seems to me to strongly suggest or imply that there's some sort of bias at work in the judiciary, which is a very damaging thing to have to say. I'm afraid, that the claims of a bias have a sort of resonance in what happened after the presidential election before this (one), when the Supreme Court intervened and made some new rules, the effect of which was to award the election to Bush, the Republican candidate.
I think that what we need are clear standards that apply to everybody, and to each political party, and we don't have that in this country yet.
Gray: That would be a challenge under the present political situation in the country right now!
McDonald: Well, it is. The problem is that the party in power is disinclined to do anything that would minimize (its) political power. But there are some states that have taken the lead in progressive reform, and one of them is Montana. I actually think that Montana has the model that others should seriously take a look at and adopt. In Montana, after fiascoes in redistricting, following "one-person, one vote" cases, the legislature was unable to come up with constitutional plans.
Finally, at some point, someone introduced legislation calling for a constitutional amendment to amend the state constitution to take redistricting totally out of the hands of the legislature and put it in the hands of a Redistricting Commission. When the new census comes out, the legislature appoints four members to serve on a Redistricting Commission - typically two Democrats and two Republicans. They then agree, if they can, on the appointment of a fifth person who will vote in the case of a tie. If they can't agree, then the State Supreme Court appoints a fifth person. Well, this time around, the two Democrats and the two Republicans appointed after the 2000 census were not able to agree. The State Supreme Court appointed a tribal member - Janine Pretty On Top - (who was) one of the plaintiff's in one of the first law suits filed in Montana on behalf of tribal members. They (the Commission) did what they were supposed to do under the State Constitution.
They adopted the ground rules, applying to "one-person, one-vote", complying with the Voting Rights Act, not unnecessarily splitting counties, honoring jurisdictions to the extent that they could, keeping the reservations intact. They adopted a plan, which I think is an absolutely fair plan - fair to tribal members, fair to Democrats, fair to Republicans - and they've held elections under that plan.
I might add that the (Montana) legislature, despite the fact that the Constitution gave sole power to the Commission to redistrict, passed legislation which would have had the effect of abolishing, or rendering invalid under state law, the redistricting plan the Commission adopted. There was litigation in state court. We (the ACLU) intervened on behalf of the Tribal chairs to have the court rule that the legislative action was unconstitutional. And I'm pleased to report that the State Court did conclude that the legislature had no power to enact that statute - that it could not interfere in the redistricting process. I don't think there's any institution that human beings come up with that's perfect and works all the time, but the Montana model has an awful lot to recommend it.
Gray: What about fraudulent elections and systematic violations of voting rights? (Note: This led to McDonald discussing law suits as a remedy to voting rights being denied.)
McDonald: I think that there's not been enough use of this as a remedy... I think that people who go in and (attempt to) vote and (are denied the right to vote), (that) they have a remedy at law to sue somebody, whether it's the election officials, whether it's the vendors, somebody denied them the right to vote and they have two kinds of relief from the courts. One would be an injunction making certain that this sort of thing would never happen again, and I think secondly they ought to be entitled to damages for the deprivation of their right to vote.
Gray: Financial damages?
McDonald: (Yes), financial damages! In the 1940's, when the southern states (held) these "all white primaries" in which only white people could vote in them, they were challenged by Blacks who sued. (They sued) not only to get a ruling from the court enjoining the further use of the "all white primaries", but to pay them for having been deprived of the right to vote. So people got damage awards. They were nominal, but they nonetheless got them. More recently in Arkansas, about 12 people were denied the right to vote and they filed law suits for injunctive relief, equitable relief, but they also sought damages and the court awarded damages to about half of them and it ranged from several hundred dollars to as much as a couple of thousand dollars in one instance.
But I think if people had to pay, when they screw up, that that would go a long way toward ameliorating some of the problems.
Gray: If people want to sue, how is this done and in what court?
McDonald: They can go in both the state and federal courts. States have statutes which prohibit people from denying people the right to vote and from interfering with the right to vote.
Gray: This is a state issue primarily?
McDonald: It could be federal too. The law suits challenging the "all white primaries" were brought almost exclusively in federal court and the federal courts granted relief and the federal courts can also award damages for the denial of protected rights. So, I think you have to look and see how strong the state statutes were and what your course of action (is) out of state law and then determine how strong your claims were under federal law. One of the things you need to take into account is that, while the federal courts have jurisdiction to redress problems in discrimination of voting, there also is a general rule of federal law that the federal courts don't interfere in what they call "garden variety election challenges". So if you have something that doesn't implicate a larger federal right, it might make more sense to go into a state court. But, if you have something that has a racial bias, if the people that have the main claims are racial minorities, then I think that gives you an adequate basis to go into the federal court to allege violations, not simply of the Constitution but of the Voting Rights Act and to seek to be compensated....
Gray: Laughlin, what are some of the reforms we need to explore here in the United States?
McDonald: Well, there ought to be national standards. There were a lot of foreign people who were here to observe this election and they consistently expressed their amazement at the fact that elections are run just sort of locally. States make up their own rules. They said, 'you ought to have national standards', and I think they are right.
There ought to be a requirement that applications for absentee ballots and voter registration be promptly processed so that we don't have the situation where people are denied the right to vote because of local bureaucratic foul-ups.
I think we need to settle the issue, to the extent that we can, about the reliability of the voting technology... about the paper trails.
And I think we ought to give serious consideration to reforming the Electoral College. The electoral college was established at a time when almost the only people who voted were white male property owners. It's an elitist institution. We've had at least two major revolutions in the voting area in this country. One is the "one-person, one-vote" revolution and the other is the "minority vote dilution" revolution which is the child of the Voting Rights Act of 1965. These are major cataclysmic kind of things that demand that the Electoral College be reformed in a way that makes (the elections) more responsive to principles of "one-person, one-vote" and non-dilution of minority voting strength.
For 13 years Ms. Gray has produced "Just Peace" on WRFG-Atlanta 89.3 FM covering local, regional, national and international news. She lives in Atlanta, Georgia and can be reached at email@example.com. The phone number of the Voting Rights Project of the ACLU is 404 523 2721 or go to the ACLU website at www.aclu.org.