while 25% white cross-over voting might be enough to immunize section two claim, and most people thought that was a low enough level of white cross-over voting that probably a section two claim would still be viable because you're frequently going to be able to get 25% cross-over in certain areas, but a lot of it in my experience is you really can't even look at states as a whole, that the areas of racial polarization will be places where you can have a 40% minority district, african-american district say which will perform for the african-american community and other places where you need to get well over 50% in order for it to be a performing district. >> the interesting thing about what courts look at and see as significant crossover voting, if i were to tell you in a particular election one candidate won 75-25, no one would say a significant number of voters voted for the losing candidate. we talk about landslides in the

united states, usually we're talking about 60-40, if we ask like reagan's landslide, what did he get, 61% of the vote, 58% of the vote? that's usually what we think of as a landslide. when the courts talk about having 25% of the white voters willing to vote for a minority community's candidate of choice is a lot of people, it's a lot relative to zero but it's not a lot relative to what we normally think of as significant, a significant attraction of votes. >> state law. >> now we do the state law ones. >> that's where things are interesting. it's all been interesting up to now. >> now they're about to get fascinating, galvanizingly so. >> you have similar provisions in different states which mean completely different things, depending on the supreme courts of those states and how they interpret compactness or the political subdivision requirement. i drew a remedial plan for

maryland after they struck down the state's plan because it didn't show due regard for a political subdivision lines and some states have rigid pronouncements about obeying county and city lines and sort of get a pass so different states and i think i was just counting, missouri, pennsylvania, and idaho have all had courts that have struck down the plans on political subdivision grounds just in the last i guess month, and then you have some of these other criteri criterion. arizona which has a commission has a requirement that some of the districts be competitive, and they were in litigation for six years in the 2000 round because of that. others have you know certain types of community of interest criteria, and a lot of it, you know, if you're aggrieved by the redistricting plan for partisan reasons or otherwise you throw all that at the wall and see what sticks, and there's been some success in the state courts on those different grounds. >> and of course a lot of the

state courts themselves are elected in partisan elections, and so they are perhaps more closely tied to the political process in the federal courts and that's one of the other things we haven't mentioned worth mentioning, in addition to the substantive rules the major effect that one person one vote has is the minute the census numbers drop all of the districts in the country become unconstitutional. that means somebody can race into court immediately and i think one thing that has been resolved is the supreme court has held that if state courts and federal courts both have cases in front of them, the federal courts are supposed to wait until the state courts adjudicated the state claims before they step in and adjudicate the claims on top of that, leaving aside section five for the moment which is an immediate injunction, and so i would predict that especially when it comes to a lot of local elections you'll see people going into state courts rather than into federal court, even on

plans that could have been judged on federal court grounds on the assumption that will give them two bites at the apple. >> i'm trying to think what's happening around the country. 34 states are in litigation in their redistricting plan. >> that's low. >> new york when i did, i was working for the federal court drawing a plan ten years ago and there was simultaneous proceedings in the state court, i guess this is being taped, what the hell, you know, they took basically the plan we drew and then you know did a little tweaks here and there and you should see what they billed the state for that, but it was, you know, you often have simultaneous state and federal court but the abstention doctor

th doctorine, people think they're going to get a favorite forum in one as opposed to another. >> and the last group of kind of constraints on states are not so much what the districts are supposed to look like but how you're supposed to get there and here i think one of the major shifts from 1964, which is really when the reapportionment revolution got the steam up is today the number of states that have gone to or thinking about going to some form of redistricting, other than having the politicians draw their own districts. for many years, we've been saying that you know the kind of public face of democracy in the united states is every two years people go into the voting booth to select representatives but the private face is every ten years the representatives went into back rooms and selected voters. that has changed in some states because they have moved to independent redistricting issues but the variety here to go back to the point nate was making earlier, the variation in how those commissions are set up,

how they're selected, what happens to their plans, is kind of staggering, so that some of the commissions have been really quite successful, and others of them it's hard to think of any difference in the outcomes that, from what would have happened if it had been a purely political process. >> and one commission during one redistricting cycle behaved differently than the other and faced different criticisms. that's what we see in arizona. we'll talk more about that in the panel later in the day. arizona was held out, it was in litigation for six years, non-partisan enterprise in the beginning of the 2000 round, then found itself in this maelstrom of political controversy, impeached the head of the commission and then reinstated by the supreme court. i want to, unless we have more legal things. >> no. >> i want to put on my political scientist hat just for two minutes. i know we're over time. >> we're not over teime yet. >> oh, we're not. just to give a sense of just the

large themes that i see in this redistricting cycle, and you can think about them in terms of race, party and region, and that while we've talked about the particular legal claims, a lot of, you know the redistricting can be a window on demographic change in the united states that sort of we take a count every ten years. we do it with the census but this is in many ways the time when we really get a sense of changing political geography. so if there's a theme that's redistricting, i think it's the morric rise in the latino population and you see it obviously in the controversies in texas and elsewhere. also people tend to think about it in classic areas like texas and california and maybe florida, it's throughout maybe just not the south but in northern cities as well, where i live in harlem, which is

historically seen as a majority black area is now plurality latino so the harlem district is plurality latino so there's a similar theme there which is that the african-american population has not been keeping up with the pace, and so that it becomes a little more challenging to draw some of the districts as we talked about before but also not as necessary because of success of certain african-american incumbents and others in getting cross-over voters. the relevance of the obama election i think is in the background of a lot of discussion of these issues, even though it doesn't really come up in court. i'll be interested to see if it does lead the supreme court to think about section 5 in one way or another, but even though the presidential election might be one of the most irrelevant pieces of information if you're trying to figure out racial polarization in a school district election, i think

there's some sort of caste to the way a lot of the way people think about the voting rights act based oen that. as a bridge thinking about race and party it was often thought as pam was describing in the 1990s that the voting rights act and restrictions on minority vote delusion was a hindrance to democratic party gerrymandering. i think now in this cycle, we're seeing the voting rights act being a constraint on republicans maximizing beyond what they got in the 2010 election so you see that in texas. you see that in louisiana, a case, area which is very interesting given the demographic changes because of katrina, where in many ways the one majority african-american district there in new orleans is one that if you were really being a partisan gerrymander it would have been one you might split up and as a result that district is safe under the vra. with respect to party republicans have more state legislative seats than at any time since 1928.

they also have total control of the redistricting process in twice as many states as they did in the 2000 round and particularly in a lot of the battleground states and so a lot of that has meant that this high water mark of republican dominance transferred them to protect their incumbents in much of the country, whereas in 2000 round a lot of it was trying toex tend their advantages, they've certainly tried to do that again in texas, but if you had to look at what was happening, in the difference between 2000 and 2010 is preserving the gains of the 2010 race. now, last, on party, i think in talking about commissions, it's clear given the criticisms of both california and arizona that republicans now believe commissions are not in their interest. it wasn't always that way. it wasn't always thought that nonpartisan redistricting would

have that effect but it seems clear to me that they believe that as an institutional forum they have more to lose. a lot of that is because they control so many state legislative houses so anything taking redistricting away from those state legislatures might be seen as against their interests. finally, just regionally, the shift of congressional seats from the northeast and the midwest to the south and southwest obviously has a huge effect on congressional redistricting so texas had four more districts to play with, a lot of the sun belt does as well, but as we've been describing the issues that are coming up this time, demographic shifts, you know, with louisiana losing congressional district as a result of katrina, all of the interesting cases that happened, that are occurring in texas. we have as mentioned before, the arizona chaos to study in the coming years. florida, which we haven't even talked about, has its own new initiative that says that the

state plan may not intentionally favor or disfavor an incumbent or a political party, and so just this week the florida legislature proposed their maps and it will go to the supreme court next week and has to be approved by the following week, something like that. so this is -- feels like we're in the middle of this redistricting cycle but one thing, those of us in this field seem to, what might have been a once a decade phenomena is about three to four years per decade i guess, given the litigation that results from it, so we're just at the beginning of this. >> yes, and you know, this panel is obviously called introduction to redistricting in the 2010, what is at stake. so far we've been talking about what's at stake internal to the process, which is what will the section five rules be, what will the political gerrymandering rules be and the like but i think it's worth kind of ending our remarks and we'll have a little bit of time for questions from the floor here on what's at stake is, of course, who

controls the legislatures determines the nature of policy in the succeeding decade, so one of the things that elections are supposed to do is to enable a kind of nimbleness and response to changes that people see in their situation, but if you have the kind of redistricting that we often have in the united states, once the districts are set in stone, it's predictable who is going to win those drt districts for the next ten years. you can predict that without knowing who the candidates are going to be or about what the ush issues are going to be and the like so i think there's a lot at stake in beyond the interests of the particular candidates in a particular round of elections and it's worthwhile i think to remember that as we talk about what sorts of constraints there should be. we have time for questions and comments, and please keep those short and come to one of the microphones or have one of the microphones brought to you, and just a reminder for everybody,

you are being taped, so by talking, you're consenting to being taped. >> so our enemies will know. >> give your name, home, address, and social security number. [ laughter ] >> my name is ken aigle, i live in portola valley, which is nearby, for those who are not from this area. my question is about the concept of race. is it a legitimate situational concept in the sense that race is a predictor of social disadvantage? and if that's the case, then the concept of race in 50 years may be no longer important as a determinant of voting policy. so my general question is about the concept of race as a factor, and its future. >> so there are a couple of different answers to that

question. one is how is race thought of in the political process, and there i think the starting point is constitutionally race is treated differently from some other criteria, that is the 15th amendment to the constitution prohibits discrimination on the basis of race or color in voting. and the 14th amendment has been interpreted, although it doesn't use the word "race" to contain additional prohibitions. now, the voting rights act itself used the term "race" without defining it, but also contains protections for what are referred to by the act as language minorities, and this is asian-americans, spanish surnamed americans, which is a little bit of a misnomer, alaskan natives, and native-americans, that is american indians, and these groups are protected not by the act explicitly as members of racial groups but as members of language minority groups, i think because congress was

struggling to come up with a way of explaining who it was trying to reach and protect. i don't think this is mostly about social disadvantage as much as the historical political advantage. people were identified by the state as members of racial groups and then the state acted and was to diminish their political participation. i've written that when it comes to section two cases, if race no longer has an important meaning in people's lives, if 50 years from now we reach that kind of assimilationist nirvana in which if you ask somebody to describe somebody else, their race would never come up, then the voting rights act will have nothing to say about that race because at that point there won't be racially polarized voting and there won't be restrictions on people's ability to elect preferred candidates because of race, just as for example right now, left-handedness versus

right-handedness play no, sir role in the process. people don't have distinctive needs that they feel the political process ought to be responding to, so in the long run, if race stops meaning what it has meant in american history for the last 400 years, the veetiveet i voting rights act will kind of, i ate to quote karl marx especially on television but the withering of the state, there will be the withering of the voting rights act because it will no longer have any meaning. it will be on the books but it will be, won't play any operative role. >> i would add one thing to that, which is, it varies between different groups, how we measure race, and how you identify populations, so that in the 2000 census for the first time, individuals were allowed to check off more than one race on the census form. >> . some groups, then the variants, which is the

maximizing categorization and the minimizing categorization rins, if you count people who nearly check tough native american or some others, some will increase by over a third. asians in some parts of the country, you will get sacramento actually is in many ways the area with a high rate of asian multiracial identification so it makes a difference. with african-americans it's not, you don't see much of a shift. you get some small differences, but it doesn't -- you just don't have identification that is as broadly multiracial as it some of the other groups. the area you do get some of that is in new york, it's very interesting, looking at different groups and how they define themselves, african-american groups, i should say black groups and how they define themselves and

levels of multiraciality, and so ken pruid, director of the 2000 census has a book coming out on this question, his feeling is outside of the redistricting realm that pay attention to the census and the racial categories and see how that will alter people's conceptualization, but with respect to redistricting and the voting rights act the real question is, yeah, there's no difference in voting behavior, then there's no claim so we don't need to account for it. >> thank you, my name is jeff schwartz. i will any of saratoga. my key computer passwords are -- [ laughter ] could you comment generally on the interaction in challenges, if there have been some, of district determination and the primary process and particularly here in california, approaching the first open primary, where it would seem that that might

either add to or undo some of the court imposed restrictions andimposeed restrictions in the vetting rights act. >> not positive, i get that, i think that -- so tlaets a loss on the ways to talk about that topic. the depending on whether you have a closed or pope primary. it is sometimes the case that certain groups, racial groups, also will be -- do better under a primary system or another. that was in the case -- where the department of justice said that where the move to nonpartisan elections makes it tougher for them to elect their candidate of choice. that is an interesting area where it's happening.

the, you know, a lot of what -- i'll tell you research that i have done on that case and in north carolina which is, depending on whether there are parties on the ballot, and depending on whether it's a partisan primary, it will effect turnout among different groups, if you do not know if someone is er are groups that will not vote in that election. ths urn out and roll off, the likelihood that they will vote for nonpartisan races as they go down the ballot. on the general question of kind of the inter action between race and party and depending on the primary system. it really sort of dependin inde there are -- depends, you look at louisiana, and it was thought that the open primary, similar to what you'll have here, but

the fact that they have basically a run off from a general election was thought that that advantaged david duke when he was frying to run fors of. but, i think there's a lot of variables that you have to sort of look at and it's hard to keep them out. >> the other thing that is going on is people's frustration often leads them to tinker with how primaries are done. if you have districts that are drawn largely to create safe seats. what they tend to be is overwhelmingly is one party controls the district so the general is meaning also, people say, is there anything that we can do to create more moderate

represents. that was -- this is something worth kind of thinking about more generally which is the entire system is an eco system, where each piece effects other pieces. why has there been a push for term limits. term limits on legislators, in part because people thought, we cannot vote them out office. so the only way to get them out is to put term limits in. if the supreme court has made it impossible for meaningful finance reform, well that pushes money into the process in ways that say, we have to do something about incumbents, otherwise they can raise the money. part of what you are talking about in your question is what effect on the districting process do things like open primes have and which people are top two primaries or blanket

primaries, they change the saliance of the party dimensions. they change nominated and they can change y identification. >> just to get out what i think the sort of political strategic issue often is here, depending on the primary system, do you have to create districts of a certain level of minority concentration for minorities to elect their candidate of choice f you have a nonpartisan election where the top two candidates advance to the general eelection. is it the case that you need over 50% of african americans to

elect their candidate. or can you count on cross over voting. if african americans can dominate the primary and their preferred candidate advances, well, then, will there be white democrats and others who would vote for that candidate? that was sort of the issue in the social science in the ki kingston case, there's a article that is on point with this. there's a piece from a few years ago, that looks at all the issues with blanket primary party rights. the courts have been hesitatent to get in it. because once you go down that road, you get the problem of -- >> we have time for one more

question. >> i'm mike and i practice law if oakland. i would like to hear a comment on how commissions have performed in this two difference context, one the citizens reapportionment, compared to other reapportionment or referees that have been appointed by courts in the past. both for a p-p -- both with different reporting structures and authority basis. >> i have now worked, i think, is it four courts? i'm currently the special master in drawing the congressional districts in connecticut, but i'm under a gag order, so i'm

not talking about that. but i've drawn in new york, maryland and -- >> georgia. >> -- georgia and redrew the districts in prince george's county maryland. i worked with the commission for months and months and months, and then worked with city council who drew their own plan. bernie graffnan has a piece that compares courts and legislatures. you know, the courts get involved on an expedited timeframe -- the amount of time, just the amount of time that was spent in california gathering testimony, they should get ph.d.s if they do not have it

already for the information they had to gather. when i did hearings for the court, i have done maybe two, and for a state like new york, for aggression con -- for a congressional hearing, they have one. but the court is trying get a plan done in time for the election, whereas the commissions tend to really be trying to you know, gather information that will make for a rational plan according to the criteria that adopt them. and we should say the obvious, not all commissions are created equal and there are places like california, where you have citizen commissions. you have commissions that are the only person you care about

is the tie breaker appointed by the state chief justice or something like that. and my view, based on what happened in this cycle and compared it to the last. i was impressed and surp prized by the success of the california system. i'm not sure it will be as successful next time around. once partisans see how the system works, they figure out ways to get more involved. but at a minimum, you can say the commissions are one step removed from the legislature, so it has it's benefits and costs. >> thank you all very much. we will take a brief break, five minutes and come back with the second panel which will be on emerging demographics and redistricting those communities. thanks.