Federal judge orders racial gerrymandering

In the Dallas suburb of Irving, a federal judge has ordered the locals to change their political system to implement single-member districts -- this, to remedy the alleged injustice of having no Hispanic members on the city council, despite having a large Hispanic population. This really is unjust and anti-democratic, and I'll tell you why.

On the surface, it looks awful that Irving has so many Hispanics, and none on the city council, the product of a mixed system in which council members come from their own districts, and a few at-large districts. There is no obvious structural reason why Hispanics are proportionally underrepresented on the council. So why is it happening?

Because they do not vote.

Before we get into this, here's an excerpt from the Dallas Morning News story. Benavidez is the man who, having failed twice to win elective office in Irving, sued in federal court accusing the city of racism:

Hispanics make up the largest single racial or ethnic group in Irving. But creating a new City Council district where a majority of voters are Hispanic is virtually impossible, city attorneys argued in federal court filings.

Their reasoning: About 60 percent of Irving Hispanics who are old enough to vote aren't citizens and thus can't cast ballots.

Irving's mayor and eight council members are all white even though whites make up only about 35.6 percent of the city's population, according to 2007 American Community Survey estimates. Hispanics make up 40.6 percent of the population, according to the same estimate.

Benavidez' attorneys said Irving's Hispanic voters have overwhelmingly cast their ballots for Hispanic candidates in recent council elections. And they argued that none of those candidates won because non-Hispanic voters, who typically cast more than 90 percent of ballots in the elections, overwhelmingly supported Hispanic candidates' opponents.

You got that, right? Most of the voting-age Hispanics who live in Irving are not citizens, and can't vote. It is hard to prove how many of them may be here illegally, but Irving has a reputation for being a haven for illegal immigrants -- so much so that a couple of years ago, the local Mexican consulate caused a huge stir when it advised all Mexican citizens to steer clear of Irving because its police were doing immigration status checks on people it arrested. So now we have a federal judge ordering a city to dismantle the election system it democratically decided upon, because non-Americans -- many of whom are here illegally -- don't have someone of their ethnic background representing them.

It's a frankly racist assumption that only candidates of a particular race can effectively represent constituencies of that race. The current Irving mayor, Herbert Gears, is a white man and a Democrat. I interviewed him when he was on the city council. Herb's a great guy, born and raised in a dirt-poor family. He told me he got onto the council in part by going into Hispanic neighborhoods and campaigning among those voters, listening to their concerns and promising to advocate for more health care services in their neighborhoods. But horror of horrors, Herb is white, so I guess according to federal Judge Jorge Solis (a Bush 41 appointee), people like him couldn't stand up for Irving's Hispanics on the council.

(Herb found himself at the center of a national controversy over immigration not long ago. It's worth reading the NYTimes story to get a sense of what things are like in Irving around this issue.)

Back to the voting point. In the most recent election in Irving, all the Hispanic candidates -- challengers to incumbents -- lost. But when you look at the turnout, it's abysmal. It always is in Irving. It's a big suburb, but the overwhelming majority of those eligible to vote don't vote in any given election. As I wrote on behalf of the DMN editorial board in 2003:

Diversity would be an asset for the Irving City Council. But U.S.Supreme Court decisions in recent decades have chipped away at the practice of ordering single-member districts as a remedy for past racial injustice. A 1986 ruling declared that a voting system could be unconstitutional if election results "consistently" represent "a frustration of the will of a majority of voters of a fair chance to influence the political process."

The fact that all Irving council members are white does not prove that case. According to the 2000 census, Irving is 48 percent white, 31 percent Hispanic and 10.2 percent black. In theory, the white vote would determine outcome in all council races. But it cannot be assumed whites will only vote for whites, and blacks only for blacks.

Actually, the only assumption that can be made without fear of contradiction is that very few Irving residents of any race bother to vote. There are 84,000 registered voters in Irving, but only a little more than 2,000 votes were cast in any of three at-large council races in the May 3 election.. The winners returned to office with only about 1,500 votes each to their credit. How difficult would it have been to muster 1,501 votes for a minority candidate? There needs to be strong evidence the will of minority voters is "consistently" thwarted.

We are not in principle opposed to single-member districts. It's a political question, and it should be put to voters. But the idea that single-member districts are necessary because the current system is structurally racist would be more credible if those
advocating it had put real effort into organizing minority communities behind minority candidates. It doesn't take much to win a council seat in Irving, except overcoming voter apathy - which, please note, is not unconstitutional.

What this is all about is the theory of "disparate impact," the doctrine saying that a policy conceived and applied in a race-neutral way can be thrown out as racist by a court if the outcome disproportionately and adversely affects minorities. Hispanics could easily have Hispanic representation on the council if they would turn out to vote The white turnout is so small that even a half-successful voter turnout campaign among Irving's Hispanic voters, on behalf of Hispanic candidates, would change things substantially in a single election. That would be the democratic thing to do, and absent substantial evidence that the system is structurally stacked against minorities' political participation, the fair thing to do.

But that's not how we do it in our outcome-based country. Thanks, Mr. Federal Judge. I hope Irving appeals this to the Supreme Court, and that it decides whether or not Irving's minority voters had a "fair chance" to influence the political process, but decided (along with the great majority of Irving's white voters) instead they had more interesting things to do on Election Day than vote.