GREENE COUNTY, Miss. (WKRG) – Morris Hill lives in the Knobtown area, a tight community that has welcomed thousands of visitors to its annual Black history parade for 22 years. It is in Greene County, Mississippi’s only district with a majority Black population.

The 2020 census said the district lost 20% of its population- 449 residents- over the last 10 years. Hill said he knows that isn’t true. He’s so sure, that he threatened to sue the board if they redrew the district lines because of that data, even though the county is required to do so.

“You’re talking about getting sued by the DOJ. You’re gonna get sued by us. The NAACP or American Civil Liberties Union or some other voter league, you’re gonna get it either way. Pick your poison,” Hill, the district’s former supervisor of 24 years, said. 

The board of supervisors agreed with Hill. “I believe that here in Greene County, the undercount is a very real issue,” said District 1 Supervisor Dillon McInnis. “How can we trust the data that our minority district lost its needed percentage of minority representation? I cannot support diluting the minority voice in this county.”

In a unanimous decision on July 18, the Greene County Board of Supervisors voted to not redistrict, falling out of line with a mandate in the federal Voting Rights Act of 1965. Not every government body needs to create new district boundaries when new census data is released. However, Greene County does this year. The population changes caused the current districts to have unequal numbers of citizens. The board’s attorney recognized that.

“I’ve expressed it very clearly. You don’t have a legal option. Y’all are charged to do what you think is right. In my opinion, what you’re doing violates federal law,” county attorney Paul Whalley told supervisors. “While the census in my opinion is deeply flawed, as the saying goes: it’s the only game in town.”

After every other census over the last 50 years, the Department of Justice would have forced the board to comply, but not anymore. Since Section 5 of the Voting Rights Act was gutted in 2013, there’s little government oversight. Challenging violations of the act’s other provisions is expensive and often takes years to litigate.

Redistricting experts fear local lawmakers across the country are going unchecked and picking their constituents in order to stay in power, stripping representation and voting rights from groups the law is supposed to protect.

Census troubles

The board’s decision to simply not redistrict surprised many of the legal and voting rights experts WKRG spoke with. Much of their time is spent debating gerrymandering and other discriminatory practices when lawmakers go through great political lengths to keep or leave out constituents in their districts. Inaction is rare. Yet, so were the results of the 2020 census.

The Census Bureau estimates Mississippi was undercounted by 4.11%, the third highest undercount in the U.S. Six states in all were undercounted by more than 1%, eight others were overcounted, according to the estimate. The bureau said that no states had statistically significant undercounts or overcounts in the 2010 Census.

“We do know that there was a significant undercount of people of color. So if you have faulty underlying data, it makes it really difficult to have fair representation,” said Dan Vicuña, the national redistricting manager for Common Cause, a nonpartisan government watchdog.

Mississippi’s law doesn’t require local governments to use the census data as the foundation for ensuring fair voting districts. Practically, however, it is often the only option since the data is free and easily accessible.

“Alternatives are extremely costly and time consuming to do. And it also would be under extreme scrutiny when you have a county or an entity basically trying to do their own headcount to rebuke the census,” said Heston Lollar, a project coordinator at Mississippi State’s Stennis Institute of Government. He works on a team that manages redistricting for local governments.

Greene County could have challenged the data immediately after it was released, likely with little relief. The bureau welcomes local governments to request a data review for its area. It doesn’t include any new counting.

Experts said the data processing likely isn’t a cause of the undercount. The review and release of the data was extended after President Biden took office. Three months prior, rulings for a lawsuit filed by dozens of civil rights groups and local governments extended the 2020 counting period by two weeks from the Trump administration’s timeline to submit final data before he left office. The counting still ended three weeks earlier than the bureau’s original COVID-19 operating plan called for.

Even with the estimated undercount, the bureau said the data is “fit for use in apportionment, redistricting, and a wide range of other purposes.” So if Greene County used the data to redistrict and, in the process, District 2 lost its majority Black population, there likely would not be any grounds to sue, experts said. The only legal remedy would be to wait until the next census.

“It’s just people anecdotally saying: ‘Oh, I’ve lived here for 20 years. I know there are 60, 70, 80 people in this neighborhood.’ Well, I mean, that may be true, but at the end of the day, you can’t really legislate or do anything off of that type of knowledge. You just gotta have some type of concrete source of data to go off of,” Lollar said.

Uncharted legal territory

The Knobtown residents’ weak grounds for a potential lawsuit does not leave the county free from other legal challenges, but there’s little precedent for what to expect.

The current season of redistricting is the first since Section 5 of the Voting Rights Act was declared unconstitutional. Since 1965, every municipality in Mississippi, from the state assembly to local school boards, had to submit any changes in voting district boundaries to the Department of Justice for approval in a process called preclearance.

Nine states were under that order for having less than 50% of eligible citizens registered to vote in 1964. Those states previously used measures like literacy tests and intimidation to intentionally deny voting rights to people of color. Congress extended the order in 2006 by a 390-33 vote before the Supreme Court struck it down in 2013.

All units of government with voting districts in Mississippi still have to submit its district boundaries map to the Secretary of State for administrative filing, per the state’s constitution. Without preclearance, however, there’s no government entity at the state or federal level specifically tasked with regularly reviewing voting districts for legality.

Previously, each government body subject to preclearance had to actively prove to the federal government that the districts were proportional to the “one person, one vote” rule and not discriminatory against any groups. Now, maps are assumed legal until challenged.

“The burden is on a plaintiff to go into court and show that some relief is needed. And they have to win that case. Litigation oftentimes takes years to resolve and in the meantime, until they win the case, a map can be used in voting rights in one or two, or perhaps even more, election cycles,” said redistricting expert Michael Li. He is a senior counsel for the Brennan Center for Justice at the New York University School of Law.

The most likely party to challenge in Greene County’s case, Li said, is a candidate that runs for office. A potential argument could be that the population differences between districts creates an unfair, and illegal, electoral disadvantage. The next county supervisor and school board elections that will use districts with the new data are in 2023.

Voting rights litigation is not only time-consuming; it’s often expensive to pursue.

The potential cost

If Greene County were to be taken to court and chose to defend its decision, legal costs could be unpredictable. 

Kenosha County, Wisconsin (pop. 169,000) paid $32,000 to its attorneys in March after a judge dismissed a lawsuit filed against them over new district boundaries. Sumter County, Georgia (pop. 29,700) was ordered to pay $787,000 in 2018, before they settled out of court, for violating Section 2 of the Voting Rights Act. They implemented electoral procedures that “diluted the strength of black voters,” the majority of the county’s population.

Greene Co. has already paid for redistricting services. Supervisors chose not to implement the drafted maps presented.

The board of supervisors contracted with the Southern Mississippi Planning & Development District (SMPDD) in October to manage the redistricting process. The contract, obtained by WKRG, called for an $18,000 lump sum payment for drafting new maps, hosting work sessions with the supervisors, presenting at no more than two public hearings, and submitting final maps.

No public hearings were held on any maps presented to the supervisors for consideration. SMPDD was scheduled to have already received $13,500 in three payments at the time the contract was terminated.

They’ll now receive payment for “actual expenses incurred”. It’s unclear how much that will amount to. SMPDD division director Allison Hawkins told WKRG that county attorney Paul Whalley asked her to refer questions to the county. Whalley did not respond to multiple requests for comment left with his law office last week.

Lollar said he and his colleagues at Miss. State’s Stennis Institute interpret state law as only requiring local governments to begin the process if they meet the parameters for legally-required redistricting. There’s no required end date to finish the process and submit new satisfactory maps.

Under that interpretation, Greene Co. could have never taken a vote on new district boundaries and claimed they were still working on changes for the next eight years while they hoped for more favorable data from the next census. Instead, they voted to outright not redistrict.

Voting rights advocates fear similar measures in local governments across the country can threaten the representation and rights afforded to minority groups.

“We’re gonna get a real-world case study of exactly how valuable Section 5 was when people tally up all the damage that’s been done at the local level,” Li said.

Future national implications for voting rights

Greene Co.’s reasons for not redistricting are unusual, but some fear the local government’s potential violation of the Voting Rights Act is common.

The supervisors voiced their opinion that the majority-minority district where over 50% of District 2’s population is Black needed to be preserved to protect their representation. They also said every new alignment SMPDD presented to them, some that kept a slim Black majority in District 2, was impractical in terms of county road responsibility.

Under their beat system of government, each supervisor independently manages roads in their district with county funds typically divided equally, since each district should have close to equal population. Area is not automatically considered when shaping the boundaries, meaning a district could have 20% of the county’s population, 20% of the budget, but more than 20% of the county’s roads to maintain–an issue that came up frequently in the board’s discussion.

“You might think that the outcome that they want is a good outcome, and maybe they have a reason for believing that census data is wrong, but it is still sort of like putting your thumb on the scale,” Li said.

Without the preclearance statute, it’s up to Congress or the states to enact new accountability measures. Six of the nine states previously under preclearance have lawsuits pending in federal court over gerrymandering in the state’s congressional and/or state legislature district maps.

A panel of three judges declined in May to decide whether Mississippi’s new congressional districts are constitutional. A lawsuit brought by the NAACP alleged racial discrimination. The state’s only district with a majority Black population stretches nearly the entire state from north to south along the Mississippi River.

Arizona and Virginia are the only two states once under preclearance where new maps weren’t challenged. The boundary drawing process was done by independent commissions in both states for the first time after voters transferred the power away from the general assemblies.

Redistricting on the state level receives much more attention and is subject to more robust accountability, Li says. Even when citizens are watching, he worries the time and monetary expense coupled with the complexity of voting rights cases deters them from challenging illegal practices by lawmakers.

Yakima, Washington (pop. 94,000) paid $3 million after their at-large city council election process was found to dilute the vote of Latinos. The town submitted 340,000 pages of argument and evidence to the court. 50 witnesses between both sides were deposed. The city paid a collective $278,623 to its three expert witnesses. Litigation lasted four years.

Some argue not challenging voting right infringements comes at an even greater cost.

“We have so many levels of government that we elect people for. The real danger is that they slip through the cracks, either because nobody notices or they do notice and they don’t have the resources to bring a legal challenge,” Li said.

The preclearance statue in Section 5 of the Voting Rights Act prevented many of those costs by making accountability proactive. The DOJ examined a total of 387,673 voting district changes from 1982 to 2005. It objected to 2,282 changes, 85% of which were on the local level.

Voting rights watchdogs fear that number could rise when local governments are allowed to keep much of the redistricting process private and do not have to report to any legal authority.

“It’s an opportunity to manipulate democracy behind closed doors that politicians cannot resist. They’re making self-interested decisions about the slicing and dicing of communities that would be embarrassing if the light was shined on them,” said Vicuña, Common Cause’s redistricting manager.

The nonpartisan watchdog group supports uniform rules for draw­ing districts, a ban on partisan gerry­man­der­ing, stronger protec­tions for minor­ity communit­ies and a require­ment for inde­pend­ent commis­sions to draw maps.

While much of the advocacy work is done on the national level, they say it is even more important for citizens to take steps to promote accountability, transparency and equal representation in the 89,000 local government units in the U.S.

“Local governance has such huge implications for our day-to-day quality of life,” Vicuña said. “From the parks you enjoy, the roads you drive on, the public transportation we take, schools. That’s all determined by who gets elected at the local level. And the ability to hold local elected officials accountable is in part determined by how districts are drawn.”

As for Greene County, the supervisors could still revisit their decision and even draw new boundaries themselves with the county attorney and no outside firm. But with no federal oversight, there’s less motivation to change course and come into compliance.