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Implementation of the Voting Rights Act: The Case of New YorkAuthor(s): Roman Hedges and Carl P. CarlucciSource: The Western Political Quarterly, Vol. 40, No. 1 (Mar., 1987), pp. 107-120Published by: University of Utah on behalf of the Western Political Science AssociationStable URL: http://www.jstor.org/stable/448556Accessed: 01-04-2016 14:32 UTC

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IMPLEMENTATION OF THE VOTING RIGHTS ACT: THE CASE OF NEW YORK

ROMAN HEDGES, State University of New York at Albany and

CARI P. CARLUCCI, Baruch College, CUNY

rT | HE VOTING RIGHTS ACT is a federal civil rights statute designed to end racial discrimination in voting. It prohibits the use of any "test or device" to abridge or deny any citizen of the United States

the right to vote on account of race or color. Under certain, well-defined conditions, the Voting Rights Act requires that any changes in the laws governing the election of public officials must be submitted to the U.S. Justice Department for "pre-clearance." The Justice Department must in turn certify that the changes do not have the effect of reducing the voting strength of minority groups protected under the Act. If the Justice Depart- ment rejects the proposed changes, it is possible to appeal the decision to the Federal Courts but the changes cannot be implemented pending the appeal.

In a series of cases in the 1970s the Supreme Court defined where and how the Act would be applied. Of primary concern here, the Court con- firmed the Act's application to congressional and to state legislative redistricting (Georgia v. United States, 411 U.S. 526, 1973) and ruled that districting schemes which effectively excluded minority participation would be over- turned (White v. Regester, 412 U.S. 755, 1973). In Beer v. United States (S. Ct. 1357, 1976) the Court further concentrated its attention on the effects of the proposed redistricting plan and ruled that redistricting plans must provide for the "non-retrogression" of minority representation. While there was dissent on other issues, no justice disputed the focus of the decision on electoral outcomes. In UnitedJewish Organizations of Williamsburg v. Carey (430 U.S. 144, 1977) the Court accepted the claim that the consideration of race and of outcomes was essential to the implementation of the Voting Rights Act in regard to redistricting.

The intent of the framers is reasonably clear here (Scher and Button 1984; Bullock 1984). The Voting Rights Act demands that public officials attend to the matter of protecting the interests of certain racial and ethnic minorities as regards the fundamental right to vote. It specifically constrains local political officials from designing an election system which has the effect of denying protected individuals from complete and meaningful access to the political process via the ballot box. While maximizing minority representation is not a requirement, the dilution of minority voting strength is clearly proscribed.

Received: July 16, 1985 First Revision Received: January 6, 1986 Second Revision Received: March 3, 1986 Accepted for Publication: March 4, 1986


108 Western Political Quarterly

If the intention is clear, the implementation of that intention is not. The history of the Voting Rights Act and of the federal case law surrounding it is a history filled with ambiguity and conflict - particularly concerning redistricting (United Jewish Organizations v. Carey and Beer v. The United States are the leading cases; see Ball et al. 1982, and Wasby 1982). The reason for the ambiguity is that there is no single criterion for ade- quacy in redistricting. Different actors each faced with the task of designing districting schemes apply different and often conflicting standards.

In this paper we compare three redistricting plans covered under the "pre-clearance" provisions of the Voting Rights Act in an effort to explore some of the difficulties surrounding the implementation of the Act. Our desire to focus on redistricting reflects both its political importance and its central role in a theory of democratic representation. The political impact is easily documented; individual legislators, for example, are well aware of effect of reapportionment on their own careers and on the balance of legislative power and public policy (Saffell 1982). The theoretic prominence of reapportionment stems from the fact that at the heart of the reapportionment process are conceptions of representation and democratic respon- siveness. Nowhere else do we so regularly confront questions about the rules of our democratic game so regularly and starkly.

We will examine each plan in order to understand how the designers of each plan attempted to meet the provisions of the Act and how each plan addressed the policy choices faced by all of the designers. We argue that the plans differ on four key dimensions: (1) their definitions of effective voting equality; (2) their emphasis on incumbency; (3) their attention to traditional reapportionment and redistricting criteria such as district compactness; and (4) their concern for racial polarization within the minority community and the attendant changes in dynamics attributable to two- candidate versus three-candidate contests.

We are able to examine the effects of the different plans based on a simulation of electoral results. We find practical, outcome differences between the three plans as a result of the fact that different standards are employed in the construction of each plan.

We will present additional detail concerning our argument later. At this stage we wish to observe that the choice of criteria and the priorities assigned those criteria have demonstrable effects on districting plans (Cain 1984). These differences are not accidental; they reflect real differences in political perspective and distinctly different conceptions of representation. Furthermore, we note that the clarity and specificity of monitoring and intervention standards of the Voting Rights Act alluded to above are not a substitute for substantive definitions and measures of successful policy implementation. As such, we argue that those who claim that the Voting Rights Act is a model of clarity and success are simply in error (Scher and Button 1984; Bullock 1984).

The evidence we use to substantiate our claims is drawn from three

counties within one city - New York. The counties (Bronx, Kings [Brook- lyn], and New York [Manhattan]) are covered under the pre-clearance pro-


Implementation of the Voting Rights Act 109

visions of Section 5 of the Voting Rights Act by virtue of the fact that they have employed a test to determine literacy and they have low rates of voting.

The New York case is an important one. New York has played a central role in the federal case law which has served to define and delimit dis-

tricting standards. (Several of the original one-man - one-vote cases and the first case to accept a numerical vote dilution standard originated in New York.) In addition, the sheer size of the population and the number of legislative seats involved argue for its significance. (There are, for example, more congressional seats at stake in these three counties after the 1980 Census (14) than are possessed by all but seven other states. The only Southern states with as many congressional seats as these three counties are Texas and Florida.) The racial and ethnic diversity makes the New York case noteworthy and revealing. Three significant groups are competing for political power - blacks, Hispanics, and whites.

REAPPORTIONMENT AND REDISTRICTING IN NEW YORK: 1982

The 1980 Census reported a new decrease in the population of New York State of 3.8 percent from 1970. New York City lost 10.4 percent of its 1970 population and the counties of the Bronx, Kings, and New York, lost 20 percent, 14 percent, and 7 percent respectively. In the reapportionment that followed New York State lost five congressional seats. New York City lost three congressional seats and parts of two others, as well as two state Senate and five Assembly seats. The same 1980 Census which documented these demographic transformations also showed that the seats held by minority representatives had suffered enormous population losses. In some cases the old lines contained less than 50 percent of the population required for a district.

The state Legislature's attempt in 1981 to produce a new state reapportionment and redistricting plan reflecting these demographic changes failed for political reasons. Early in 1982 the Black and Puerto Rican Cau- cus in the state Legislature filed a suit in Federal Court alleging that, due to population changes during the past decade, there were now great differences in the sizes of districts in each house of the Legislature and the Con- gress; therefore, holding any elections in 1982 under the current district

The two additional counties within the city, Queens and Richmond [Staten Island], are not subject to the pre-clearance requirements of the Act. The triggering mechanism which mandates Justice Department involvement is in the statute. If a county has a sizable minority population, a previous history of descrimination, and low voter turnout, proposed changes in the election machinery must be submitted to the Justice Department for examination. The combined minority population of the three covered counties is substantial. In 1980, 1.40 million of the 4.83 million residents of the three counties were black and 1.12 million were Hispanic. Despite the presence of a substantial Spanish speaking population, New York only printed ballots in English prior to having that practice banned by federal action as discriminatory. These counties also have extremely low rates of voting. For example, in the 1980 presidential election 1.32 million people voted in these three counties. The 1980 Census indicates that there are 3.50 million adults in the covered counties for an approximate turnout rate of 38 percent in a presidential election! (Even by New York standards this is an extremely low rate: 54 percent of the adults in the rest of the state voted in this same election.)



lines would violate the 14th Amendment and the principle of one person, one vote (Flateau v. Anderson.) The complaint further alleged that due to the increase in New York State's minority population it was likely that representation by minorities would increase under a new apportionment. Therefore, holding elections under the current lines would result in a dilution of minority voting strength in violation of the Voting Rights Act.

The Federal Court agreed that new legislative district lines were required before the 1982 elections. As the remedy to legislative inactivity, the Court appointed a Special Master and charged him to construct a reapportionment and redistricting plan for the state.

Faced with the threat of a Court-developed plan, the Legislature passed a series of bills redistricting the state's congressional seats and reappor- tioning and redistricting the state Senate and Assembly. The plans for the new districts were submitted to the Justice Department for review under the pre-clearance provisions of the Voting Rights Act.2 The Special Mas- ter released the Federal Court's districitng plans a few days later, while the Legislature waited for the Justice Department to complete its review.

The Justice Department rejected the enacted (Legislative) plans. The Justice Department provided specific objections to districts based on a mix- ture of traditional reapportionment and minority voting strength arguments. The Justice Department decision effectively threw the Legislature's plans out. If the Legislature could not prepare and pass a new plan and gain Justice Department approval in time, the Court would impose its own plan.

Based on discussions with the Justice Department, the Legislature prepared a substantially altered second set of plans within two weeks. While no explicit plans were offered by the Justice Department, firm guidance was provided.3 Within a day of enactment, the Justice Department noti- fied the state that it had no objections to the new plan.

In effect, then, there were three proposals for drawing state legislative and congressional districts in New York in 1982. The first was wholly the construction of the Legislature. The second was prepared for the Federal Court by a Special Master. The third was actually drafted (and enacted) by the Legislature, but had the hand of the Justice Department guiding the pen.

2 In 1981 new redistricting for the New York City Council was proposed pursuant to the 1980 Census. The Council districting proposal was judged to be retrogressive by the Justice Department under the provisions of Section 5: too few new minority districts had been created. While there was no direct linkage between the state and city efforts, the ruling on the City Council plan meant that the state could be expected to produce a plan that recognized the precedent created by the Justice Department objection. Thanks to their experience with the redistricting of the City Council, the Justice Department was familiar with the population data for New York City and local minority groups were experienced in the process of public comment.

3 The Justice Departmet appears to have been unwilling to provide detailed, explicit guidance in the course of the negotiations which produced the final reapportionment plans of the 1970s as well. "A staff member of the legislative reapportionment committee tes- tified that in the course of meetings and telephone conversations with the Justice Depart- ment officials, he 'got the feeling . . . that 65 percent would be probably an approved figure' . .." United Jewish Organizations, Inc. v. Carey, p. 152.



COMPARISON OF THREE REDISTRICTING PLANS

The "authors" of the three plans shared the claim that they had the U.S. Constitution, the Voting Rights Act, and the interests of protected minorities at heart. There was no serious, or even noticeable, dispute over the "one person-one vote" standards, probably because the state constitu- tional requirement for equal population of districts within cities is more stringent than are the various federal standards. (In New York adjacent state legislative districts which split cities must have a population disparity less than the population of the smallest block on their common border.)

The authors did not agree in four vital areas. They differed in their concern for racial polarization with the minority community, their definitions of effective voting equality, their emphasis on incumbency, and their attention to traditional reapportionment and redistricting criteria. The term "effective voting equality" was introduced by a consultant to the Court's Special Master (Grofman 1982). It was used to describe a district with sufficient minority population, defined numerically, to have a reasonable opportunity to elect a minority candidate. It refers quite directly to the de- gree of minority population concentration in a district. We use the term generically to refer to the minority population concentration standards of the three plans.

The Legislature's plan was based on the claim that racial minority group voters cannot be treated as a unified block because of racial polarization within the minority community. That is, districts should be cast as either black or Hispanic, not as "minority," whenever possible (Miller, May 18, 1982, p. 3, and Miller, May 10, 1982, p. 4517). The non-retrogression standard of Beer was taken to mean that the 65 percent minority standard for voting equality accepted in UJO v. Carey was not satisfactory. Rather, real opportunity for present minority victory was the test: "in many instances where even [minority populations of] 65 percent and 70 percent would not be sufficient compensation [for the low participation rates of the minority community], we were compelled to add even more non-whites to insure electability" (Miller, May 18, 1982, p. 3). Indeed, they set the highest effective voting equality standard. Moreover, the fact that the Legis- lature must pass the plan virtually guaranteed a serious attempt to assist incumbents - particularly minority group incumbents. Concerns about other, traditional criteria, such as district shapes, were not voiced.

The Special Master called for the creation of districts which would produce effective voting equality. The specific numerical standards he employed were based in part on an analysis of an independent consultant who argued that four major factors impinge on minority voting opportunity: the relative size of non-voting aliens in the minority and non-minority populatons, age differentials between minority and non-minority populatons, voter registration differentials between minority and non-minority populaions, and differences in voter turnout between minority and non-minority reg- istered voters (Grofman 1982).

Although the Special Master adopted a lower target figure than his consultant had suggested, he did produce a plan with minority districts hav-



ing minority population between 69 and 80 percent. This plan ignored the Legislature's distinctions between black and Hispanic districts and specifically rejected their concern for incumbents. In addition the plan paid attention to traditional district shape criteria such as compactness (Patterson 1982).

The Justice Department argued for a 65 percent minority population figure as the standard for effective voting equality. It expressed no interest in racial polarization within the minority community and the resultant black versus Hispanic district questions. Similarly, it did not address the incumbency issue. Finally, the Justice Department was quite concerned about traditional districting criteria, such as the shapes of the districts. For example, the Legislature had created a congressional district by linking the Hispanic community in northern Brooklyn with Spanish Harlem and the lower Eastside of Manhattan. The Justice Department acknowledged the fact that this district gave the Hispanic population a chance to elect a con- gressman, but objected to the combining of these disparate areas as a "depar- ture from commonly accepted districting criteria" (Reynolds 1982). In the Justice Department approved plan the offending shapes were replaced by districts which typically had lower minority population concentrations without fingers, nooks, and crannies.

Each of these plans, the first drawn by the Legislature, the second drawn by a master for the Federal Court, and the third drawn by the Legislature and the Justice Department, used a different numerical standard for effective voting equality. Each of these plans placed a different value on incumbency, each plan adopted a different view about the need to consider racial polarization within the minority community, and each placed a different emphasis on traditional reapportionment criteria.

The simple fact that the plans differ in each of these ways is critical for an understanding of the implementation of the Voting Rights Act in the reapportionment and redistricting processes of New York and elsewhere. Cain makes the case that the choice of reapportionment criteria can be expected to have an impact on the districting outcomes. He argues that the legislative perspective can be expected to produce an emphasis on incumbency and that affirmative action and traditional reapportionment criteria are in conflict so that choices must be made (pp. 147-78). And he claims that the failure to maintain the analytical distinction between different groups within the minority community "is courting disaster" (p. 177). In short, Cain supports our argument that the nature of minority representation in a redistricting plan will be affected by the differences that we have documented.

ANALYSIS OF PLANS

We will assess the consequences of the policy choices made by the "authors" of each plan along two dimensions. Our two dimensions are designed to provide information about the nature of the districts proposed and about the likely (and actual) outcomes of elections conducted under each plan. The two dimensions are: the race/ethnicity of expected winners



from simulated contests waged in the districts, and the differences between actual and simulated outcomes. Where it is relevant, we have added com- parable information about the districts which existed prior to the 1982 reapportionment and redistricting (Interim Report 1971, 1972, and 1974).

Both of these dimensions are important for a full evaluation. They de- rive from the emphasis on outcome demanded in Beer and reflected in the words of Drew Days, former Assistant Attorney General for the Civil Rights Division of the Justice Department, "effectiveness in complying with the law is measured by results" (1980).

In order for the simulation to be useful it should be based upon "real world" data. Ideally, each of the contending groups should have strong candidates who competed against one another in the simulation. In the New York context, this means that black, Hispanic, and white candidates would have to contest the same election. To minimize the analytical complica- tions, a race contested throughout the jurisdiction to be redistricted is prefer- able. Obviously, the contest must be of recent vintage and proximate to the Census so that the appropriate Census and political data connections can be made.

We have, therefore, elected to base the simulation on actual election results. In the case at hand the 1977 Democratic Mayorality primary is the only election which is satisfactory on all counts. It is a significant contest: winning the Democratic primary is usually tantamount to election in New York City because it is overwhelmingly Democratic. (The 1981 party enrollment figures for these three counties show a better than 5 to 1 Democratic superiority and the last two gubernatorial contests have produced better than two to one margins for the Democratic line over the Republi- can line.) The three major ethnic-racial groups in New York each had at least one politically viable candidate: the black candidate was a former state Assemblyman and was successful in a bid to become Manhattan Borough president two years later; the Hispanic candidate was a former congress- man from the city and later a deputy mayor, and the two major white candidates went on to become mayor and governor. The contest was conducted city-wide, and the battle was waged on the eve of the decennial census.

There have been two city-wide primaries which pitted black and white candidates against one another since the conclusion of the reapportionment efforts of the decade. In addition there have been county-wide contests with either black against white or Hispanic against white candidates, but, there is no other contest with black, Hispanic, and white candidates running city-wide. With- out a doubt the use of a single specific election forces us to interpret our results cautiously and we cannot account for increases in minority voter turnout in recent years, but the lack of more recent three-way contests leaves us no other valid base from which we can build a useful model.

We collected data on the outcome at the election district level for all

of the covered counties and we matched those data to the minority group data from the 1980 Census by a series of geographic transformations using city blocks. Census data could thus be correctly associated with voting be- havior for 2,780 reporting units in the covered counties (Hedges and Getis 1983).



What we have done is construct a simulated three-way contest in each separate Congressional, Senatorial, and Assembly district under each plan by simply adding up the votes received by the black, Hispanic, and white candidates separately. The effects of differential turnout and racial/ethnic polarization within minority community are built into the analysis and district winners and losers are reported. The simulation cannot explicitly account for campaign dynamics or resource variations and no candidate or location specific information is included. However, since the results are based upon an actual election, these effects are built into the analysis.

Because the number of districts in often somewhat small, we have combined the result from all three "houses" to provide a less noisy summary of each plan. (We are not implicitly arguing that trade-offs occurred between houses in any plan. We simply do not know that to be the case and we rather doubt such trade-offs occurred. We note, however, that in some important regard minority opportunity is greatest when the total number of available seats is at a maximum no matter which "house" they are in.)

Table 1 shows the cumulative effects of each of the three plans on the creation of minority districts in the three covered counties. The first row indicates the number of districts which have a population concentration in excess of 50 percent for the individuals of a single minority ethnic group. (I.e., the number of districts where one minority group constitutes more than one-half of the population.) Unlike simple minority concentration figures, these numbers indicate something of the strategic situation in a minority district. If the claims made by the Legislature about the heter- ogeneity of the minority community are afforded reasonable regard, the number of districts where a single minority ethnic group predominates is a more relevant figure than the traditionally reported "percentage minority."

TABLE 1

MINORITY DISTRICTS PRODUCED UNDER EACH PLAN

(1) (2) (3) Original Court Justice Dept.

1980 Legis. Plan Approved

50%+ One Minority 22 23 20 23 (Population Concentration) White Loses (<50%) 24 23 24 23 (Two way election) Minority Wins (>WH%) 21 17 14 15 (Three-way election)

The second row of the table indicates the number of seats in which the

total vote for the white candidates did not exceed 50 percent. In a two-way contest between a white and minority candidate, these are seats in which we would expect a minority victory if the minorities vote as a bloc. We feel such contests are unlikely in districts with substantial populations of more than one minority ethnic group (Hedges and Getis 1983). In a dis-



trict where the minority population is larger than the white, but not over- whelming, i.e., the 65-80 percent range, and it is composed of more than one ethnic group, each is likely to field a candidate and split the vote. Nevertheless, the second row of our table permits us to examine the effects of an assumption that all minority votes will go to a single minority candidate in a two-way election.

The third row indicates the number of districts in which a single minority group predominates in the simulated contest; either the black or Hispanic vote is greater than the vote for the white candidates and the district is recorded as having produced a minority winner. It does not matter which minority group predominates. This approximates the situation where minorities do not join forces, a three-way contest.

Thus, the final two rows of the table focus on election outcome and are reasonable evidence on the question of the effect of the various plans - provided that the analyst remembers the limits of the data and tech- nique employed. The figures can properly be understood to be a prediction, based upon limited evidence, of the outcome of an election conducted using each of the various plans. Moreover, the table permits us to disen- tangle those situations where the strategic interaction of black and Hispanic groups might be expected to play a role in the election results.

The second plan, the Federal Court's product based on a higher standard for effective voting equality than the third plan, but without account- ing for polarization within the minority community, produces one more minority seat than either of the other plans in the case of two-way contests. In the case of three-way contests the first legislative plan, using the highest standard for minority districts and emphasizing single minority concentrations, produces more minority seats than either the second or third. While the differences between plans are not large in terms of absolute numbers they are significant in proportion to the total number of minority seats and in the direction of the change.

That the 1980 districts would result in the greatest number of minority seats from either two-way or three-way contests comes as no surprise. There were a larger number of districts in existence before the 1982 reapportionment; they were grossly underpopulated, especially in minority areas.

The critical choice is whether or not the election process should be modeled assuming polarization within the minority community. If polarization is assumed, the first plan, the Legislature's original proposal, produces more minority seats than either alternative plan. On the other hand, if polarization is not assumed, the second plan, the Court's product, is a slightly better plan than either the first or the third. No matter which assumption is made, the third plan, the product of lower minority concentrations and no attention to minority polarization or incumbency, is suboptimal for minority representation.

The final evidence on the plans centers on the accuracy of the simulation predictions. We will compare the predictions from the simulation with the results of the actual legislative elections held in 1980 (prior to redistricting) and in 1982. We need to do this for two reasons. First, the ade- quacy of our simulations needs to be verified. Secondly, a detailed attempt



to account for our errors in prediction will provide insight into what additional factors play a role.

Applying the simulation to the 1980 districts produces a set of predictions in which the actual number of elected minority representatives in each house is the same as the two-way race prediction. In 1980 every one of the predicted minority districts was successfully held by a minority incumbent in the primary, with the exception of a district in which a minority incumbent was succeeded by a minority challenger. In short, the simulation is quite good by this "pre-redistricting" test.

TABLE 2

PREDICTED V. ACTUAL MINORITY REPRESENTATIVES ELECTED

(CONGRESS, SENATE, AND ASSEMBLY)

Elected

Minority White Total

Minority 15 0 15 Predicted

White 8 47 55

Total 23 47 70

The second test addresses the effects of reapportionment. Of necessity, we focus on the third plan in this test because it is the only plan under which an election was held. The simulation predicted 15 minority victo- ries, while 23 districts actually produced a winner from a minority group. Differences between the predicted and actual results (8 seats) can in each case be explained by incumbency effects; eight minority incumbents were reelected despite running in "non-minority" districts.

The plans produced by the Legislature clearly gave incumbents, including minority incumbents, an advantage. Both the first and third plans con- sidered incumbency in the drawing of districts, the first plan by intent and the third plan by default. The result is that the third plan produced more minority representation than our simulation predicted. In fact the magni- tude of the incumbency effect is larger than the effects of plan to plan differences in minority population concentration.

CONCLUSIONS

Bullock argues that the Voting Rights Act is one of the two civil rights policies of the last several decades which was successfully implemented because of the clarity of the program goals and the specificity of the implementation standards (1984). We have demonstrated that simple federal intervention does not insure an implementation which will produce unam- biguous, desired outcomes. Nor is it simply a matter of disagreement with the general policy of advancing minority voting rights. The problem is more basic.

At the heart of the problem is a debate about standards for reapportionment based on conflicting views of the nature of representation. A co-



gent theory of representation requires us to consider many, often conflicting, goals and resolves those conflicts. Decisions about relationship and and priority of these goals determine the rules of the game and establish the framework for the difficult policy choices that must be made. These decisions produce outcomes which simply differ. Ostensibly neutral rules posed in the name of "good government" and governmental reform have had unintended negative effects. Whether we consider the middle class bias of non-partisan elections or the effects of city-wide vs. district representation schemes on minority representation, minorities can be adversely affected by "good government" standards (Heilig and Mundt 1984). The implementation of the Voting Rights Act in New York City points in the same direction. Minority interests are compromised by assigning higher priority to good government standards than did the Legislature.

The Voting Rights Act, as it is implemented by the Justice Depart- ment, is but a partial statement. It argues for the advancement of minority representation without confronting the unresolved policy questions which can serve to thwart efforts to achieve that goal. A complete statement would assign priorities to conflicting standards: the representation of minority interests and good government standards. While the review performed by the Justice Department can be relied on to examine adequately the question of conformity with a process, the question of effect remains open.

The problems begin with the definition of effective voting equality. The essential, and difficult, aspect of the issue is that it is not sufficient to construct a district which has either a plurality or even a simple majority of residents who are part of a protected minority group if the ultimate standard is one based wholly or partially on outcome. Accepting the outcome orientation, we have argued that the evidence from our simulation indicates that the traditional 65 percent combined minority population figure is insufficient.

Results from an ecological regression analysis of election district data in New York City confirm that in several instances within the covered counties the population must be more than 85 percent from a single racial/ethnic group to produce election parity (Hedges and Getis 1983). We are not willing to claim that the factors which produce these effects will work in the same way in all settings at all times. Rather, we believe that the facts dictate different design criteria in different situations if the evaluation of plans is based on outcome and not process.

On its face the focus on outcomes cannot be taken to mean that minority candidates are always to be guaranteed electoral victory. At the limit a guar- antee of victory would exist only under extreme conditions of racial/ethnic polarization coupled with a massive concentration of protected minorities into a limited number of districts. Such a concentration would obviously constitute a classic case of unconstitutional gerrymandering by means of an over-concentration of the strength of the minority citizens in order to produce massive numbers of wasted votes. Nor can opportunity reasonably be construed to mean an outside, unrealistic chance to win under a specific, improbable conditions. Neither the unnecessary concentration nor



the needless dilution of the voting strength of the protected groups is con- sistent with the Voting Rights Act.

The analysis of our simulation prediction "failures" shows that factors in addition to the racial/ethnic makeup of a district must also be exam- ined. The most important of these factors appears to be the role of incumbency. Virtually every analysis of contemporary American elections shows that incumbents, including minority incumbents, have a greater chance of winning than do non-incumbents. (This of course applies most force- fully when the incumbent's constituency is kept intact in the district which he represents.)

While there may be some question as to the value to the community in maintaining districts for individual incumbents, the need to build viable political organizations with strong and effective leadership within minority communities is seldom questioned. Minority incumbents might well address those needs. Moreover, the symbolic importance of minority incumbents might well be great. In addition the failure of officials to recog- nize that all incumbents were elected and that "throwing them out" ig- nores the preferences of voters is at issue (Cain 1984: 12-13). The Legislature's original plan reflected "incumbency concerns." The second plan produced by the Court completely ignored incumbency.

At a more concrete level, the size of the incumbency effect, when coupled with the differences in priority attached to incumbency, means that the value of pre-redistricting analyses which ignore incumbency must be seriously questioned. The failure to build incumbency into the decisions about district lines will thoroughly compromise all attempts to consider outcomes as a factor.

The other important factor is the strategic situation faced by the com- batants. All minorities are not alike. Both the Court and the Justice Depart- ment treated black and Hispanic voters as a single voting bloc, ignoring the fact that each may have different preferences in a specific political race. Denying the existence of competing political organizations representing each of these communities produced districts in which the black and Hispanic candidates split the "minority" vote, leaving the white community with the largest vote.

It certainly could be argued that some of the details of our analysis are dependent on dated (1977) election results. The Jesse Jackson campaign of 1984 was predicated on the claim that minority participation could be expanded beyond 1977 levels. Indeed, we believe that the results confirm this. But, massive changes in turnout are required to upset the details of our analysis, and they do nothing to alter the claim that the districting criteria employed affect the possible outcomes. The success of the implementation of the Voting Rights Act in redistricting, as interpreted by the current Justice Department, remains debatable.

The New York case points to the potential depth and scope of a dispute between local officials and the Justice Department. When all was said and done, the process produced the asymmetric result that the local officials were precluded from pursuing their planned course of action with appar- ently little, if any, improvement in the prospects for minority candidates.



Thus, the shortcomings cannot be seen as an instance of compromised compliance attributable to the political prowess of the local officials (Ball et al. 1982).

Where the intent is to weaken the voting power of a protected minority, clearly the Voting Rights Act demands intervention. In the New York case, Federal Justice Department intervention did not produce an improvement in the lot of minority candidates because criteria beyond outcomes were employed. Federal Court and Federal Justice Department intervention produced plans which were (arguably) inferior and decidedly not better able to advance minority representation than were the plans of the State Legislature because of their failure to properly address these factors.

REFERENCES

Ball, Howard, Dale Krane, and Thomas P. Lauth. 1982. Compromised Compliance: Implementaton of the 1965 Voting Rights Act. Westport, CT: Greenwood Press.

Beer v. United States, 425 U.S. 130 (1976), 38-52.

Brown et al. v. Thomson, Secretary of State of Wyoming, et al., 536 F. Supp. 780, No. 82-65 (1983).

Bullock, Charles S., III, and Charles M. Lamb, eds. 1984. Implementation of Civil Rights Policy. Monterey, CA: Brooks/Cole.

Bullock, Charles S., III. 1984. "Conditions Associated with Policy Implementa- tion." In Bullock and Lamb (1984), pp. 184-207.

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