1415 West Hebvay $4, Sue 101 poia.3.3360 SOUTHERN COALITION Durham, NC27707 Fe9ig.s13.3902 for SOCIAL JUsTIC Written Testimony of Allison Riggs Staff Attorney, Southern Coalition for Social Justice Greensboro City Couneil Meeting May 3, 2011 Good evening. My name is Allison Riggs and I’m a voting rights attorney with the Southern Coalition for Social Justice in Durham, NC. Thank you for allowing me to speak for a few minutes on a few legal topics implicated by the City Couneil’s proposed redistricting plans, Because my remarks, although brief, will exceed the allowable time and because this information is vital for the City Couneil to consider, I will have community members finish reading my testimony after my time expires. I have also brought printed versions of my entire testimony for submission to the council. I'd first like to speak to state law governing annexations and redistricting, and then I'd like to review a few relevant factors considered in making a determination of retrogression under Section 5 of the Voting Rights Act. Local newspaper reports last week indicated that if the city does not adopt a new redistricting plan in time for the 60-day review by the Department of Justice before the July filing deadline, the city believes it has the authority to delay elections until 2012. This is an inaccurate interpretation of North Carolina General Statute §160A-23.1 and the city will open itself to a lawsuit for violating state law if it tries to delay the election. The law I just mentioned authorizes City Council to delay an election if, after the receipt of federal decennial census information, the couneil determines that it would be unlawful to conduct another election without redistricting, AND the council does not believe it has time to redistrict before the opening of the filing period. Based on the 2010 Census, it would not be unlawful for Greensboro to hold another city election. The city is NOT authorized under this law to delay an election based on annexations that may ‘occur in the future, They are only authorized to delay an election where population imbalance would making condueting an election under the, and I quote, “existing district boundaries” unlawful. Annexations that may or may not occur in the future are not part of existing district boundaries. With the new census numbers, it would not be unlawful to conduct elections under the “existing district boundaries.” Because future annexations are not part of the city now, they are not part of existing districts, and thus the authority to delay an election cannot be predicated on the possibility of annexations happening at some point in the future. Even if the city annexed new property in time for voters in the annexed areas to participate in the Fall 2011 municipal elections and the annexations bring into the city a significant number of voters, the city still has two options:a. The first option is that the city may assign those “annexed” voters to a district that will not be pushed outside of the acceptable deviation range, even if that district is non-contiguous. There is no state law that demands contiguity. And, in fact, the Greensboro city charter explicitly gives the City Council the authority to put annexed area in a district other than the nearest electoral district if “deemed necessary.” Sec, 2.43(b). Avoiding holding an election under a malapportioned plan would certainly qualify. They can then redistriet after the election—after they are certain about what areas and populations are annexed and after the public has been given a meaningful opportunity to participate in this process. b. The second option is that the city could assign those “annexed” voters to an adjacent or contiguous district that would then be slightly outside of the acceptable range of deviation. This scenario would only pose a problem if.a voter decided, after the annexations were effective AND approved by the Department of Justice, to bring a one-person-one-vote lawsuit. Given that the annexations ‘would have occurred too late for the city to have redistricted, itis highly unlikely that a judge would halt the election. Judges generally do not want to hold incumbents in office and hold up elections unless there is a dramatic problem. ‘Asa final note on this topic, annexations have to precleared by the Department of Justice as well, and generally speaking, election officials need 90 days after a change to ensure that new voters are incorporated into the system. Legally, under Section 5, covered jurisdictions are not supposed to be taking any steps to implement laws until they received preclearance. So the idea that all of these supposed annexations will take place, be precleared, and be implemented in time to affect the 2011 elections is far from certain, I'd now like to take a minute to discuss retrogression. A proposed plan is retrogressive under Section 5 of the Voting Rights Act if its net effect would be to reduce minority voters’ “effective exercise of the electoral franchise” when compared to the benchmark plan. In 2006, when Congress reauthorized the Voting Rights Act, it clarified that a jurisdiction must establish that its proposed redistricting plan will not have the effect of “diminishing the ability” of minority citizens to “elect their preferred candidate of choice.” In layperson’s terms, retrogression standard prohibits jurisdictions from making minority voters worse off than they ‘were under the previous plan, non- On February 9, 2011, the Department of Justice issued Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act. In that document, the Department of Justice noted that, alone, “census population data may not reflect significant differences in group voting behavior.” As such, the Department concluded that “election history and voting patterns 2within the jurisdiction, voter registration and tumout information, and other similar information are very important to an assessment of the actual effect of a redistricting plan.” Furthermore, Section 51.59 of the Procedures for the Administration of Section 5 of the Voting Rights Act of 1965 describes relevant factors for the Attorney General’s consideration of redistricting plans. The fifth factor listed is the extent to which available alternative plans satisfying the jurisdiction’s legitimate governmental interest were considered. If a jurisdiction had better, less retrogressive or non-retrogressive options before it and chose not to avail itself of those options, that can support an objection by the Department of Justice. ‘There are significant reasons Plan B—the Rakestraw plan voted upon at the last City Council meeting—is retrogressive. Plan B reduces the African-American voting age population in District 1 from nearly 71% to 66%. Alone, that significant reduction in voting age population may be enough to warrant a finding of retrogression. But when you pair that with the fact that Plan B moves high-performing African-American precincts out of District 1 and moves high- performing white precincts into the District, this is even more persuasive evidence of retrogression. In a jurisdiction where voter turnout is already low, this is significant. The moving of even one high-performing precinct can change the outcome of an election. If you change the political performance of a district such that minority voters have a diminished ability to elect the candidate of choice, you have created a retrogressive redistricting plan and the Department of Justice will object. Furthermore, the City Council had and HAS better alternatives before it, most notably the option to not redistrict at all right now. Districts 1 and 2—the majority-minority districts, have significantly lower deviations than Districts 4 and 5—the districts with deviations closer to the limit. Districts 1 and 2 do not need to be changed at all to satisfy the City Council’ interest in ‘maintaining population balance amongst the districts, yet this council considered and voted upon aplan, Plan B, that dramatically changed the demographies of these two districts. You did so even when you were not legally required to redistrict. You did so even when another plan, Plan , offered an option to reduce the deviation in Districts 4 and 5 without affecting Districts 1 and 2atall. Plan B also makes District |—a majority-minority district—the most overpopulated district in the jurisdiction. Right now, it is quite close to the ideal population. lll of this strong ‘evidence supporting a finding of retrogression and justifies the Department of Justice interposing, an objection should the City Council adopt Plan B. Similarly, though not nearly as egregiously, Plan D also reduces the African-American voting age population in District 1 and makes it the most overpopulated district in the jurisdiction by a significant margin. If this council adopts a retrogressive plan, my organization 3