Commissioner Questions Constitutionality of Electricity Rate Freeze

SCC commissioners Christie, Dmitri and Jagdmann

SCC commissioners Christie, Dimitri and Jagdmann

by James A. Bacon

The Virginia state Constitution clearly delegates to the State Corporation Commission the power to set electric rates. States Article IX, Section 2: “Subject to such criteria and other requirements as may be prescribed by law, the Commission shall have the power and be charged with the duty of regulating the rates, charges and services … [of] electric companies.”

But legislation enacted in the 2015 session of the General Assembly, with the McAuliffe administration and Republican legislators signing on, froze base electric rates from from mid-2015 through 2022. (Base rates comprise roughly half the electric bill; fuel adjustments and major capital expenditures are not included.)

In effect, the legislature is setting rates, argues James C. Dimitri, one of the SCC’s three commissioners, and the act of freezing the base rates exceeds the General Assembly’s constitutional authority. While neither Dimitri nor the other two commissioners — Mark C. Christie and Judith Williams Jagdmann — spoke out publicly against the legislative deal at the time, Dimitri broke ranks and wrote a dissent in a November SCC ruling directing Dominion to refund $19.7 million to customers.

Under Senate Bill 1349, wrote Dimitri:

Major categories of rising costs can be passed onto customers, but lower costs or savings cannot. That is, for virtually any significant infrastructure or related costs (such as new power plants, demand-side management investment, or transmission lines), separate rate increases are mandated through rider provisions … which effectively guarantee recovery of those costs to the utility, plus a profit and, in some cases, a rate-of-return bonus. Conversely, Senate Bill 1349 fixes base rates (and any excess revenues currently built therein) at existing levels; base rates cannot be lowered by the Commission.

Dimitri’s dissent “revives the debate over Dominion’s exercise in power politics,” wrote Jeff Schapiro, who broke the story in Sunday’s Richmond Times-Dispatch. And it conceivably could propel the issue to the Virginia Supreme Court.

Schapiro quoted the Virginia Committee for Fair Utility Rates in a subsequent SCC pleading: “The constitutional issue raised by the dissent, moreover, has not been addressed by any participant — not by staff, or by any respondent — in this proceeding.”

Dominion justified the rate freeze as a way to ensure rate stability for consumers during a period of tremendous uncertainty about the impact of the Environmental Protection Agency’s Clean Power Plan on Virginia. Last year, SCC staff had estimated that the plan, which would force the shut-down of several coal-fired generators in order to reduce carbon dioxide emissions, could raise electric rates by as much as 20%, although environmentalists suggested that the impact would be much lower.

“Dominion strongly disagrees with any suggestion that the law is unconstitutional,” said spokesman David Botkins. “The SCC order rejecting a request for rehearing on the issue speaks for itself, as does the plain language of the law.”

Bacon’s bottom line: Seems like the operative words in the Constitution are, “Subject to such criteria and other requirements as may be prescribed by law.” In other words, does the Constitution give the General Assembly the authority to set rates when it wants? I’m not a lawyer. I don’t know.

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29 responses to “Commissioner Questions Constitutionality of Electricity Rate Freeze

  1. Yes my comments below on James River pertain to that lost article…but sorry no copy of it here

  2. re: ” Article IX, Section 2: “Subject to such criteria and other requirements as may be prescribed by law, the Commission shall have the power and be charged with the duty of regulating the rates, charges and services ”

    the way I read that – ” as may be prescribed by law” makes me think the Constitution set up the initial condition but left it to the GA to make subsequent changes as they saw fit.. i.e. the “law”…

    I swear – it seems these days every aspect of the Constitution – and Law as well as the powers of the Gov or POTUS …even the SCOTUS are under challenge….

  3. I believe Commissioner Dmitri is correct as a matter of law, and I believe the Supreme Court will agree with him if asked. The question is arguable enough, however, for heavy politics to sway the result, even at the Court.

    It comes down to this: There’s a decent argument that a legislative body which creates a subordinate commission or agency and delegates tasks to it does not do so exclusively, but retains the right to retrieve any portion of its delegated authority, or to place constraints on how its delegated authority is to be exercised, or even to override decisions by its delegatee. Here, however, the SCC was not created by the GA but directly by the People, through the State Constitution. The SCC regulates utility rates and services because that authority was allocated to it by the Constitution. The GA cannot retrieve what was never its authority in the first place. Moreover, ratemaking is a quasi-legislative, quasi-judicial power and the GA cannot exercise judicial powers. There’s also a decent argument that the GA has enough authority to tell the SCC what criteria to apply and what process to follow, that it can effectively tell the SCC what to do by reducing its options to zero. As you noted, Jim, the Constitution says the SCC must regulate “subject to such criteria and other requirements as may be prescribed by law.” Here, however, the SCC’s broad regulatory authority over utility rates and services is specified in the Constitution; under the guise of prescribing regulatory criteria and processes, the GA cannot be allowed to nullify the substance of the Constitution. I don’t agree with LarryG that the GA can impose “subsequent changes as they saw fit” (though their allies will certainly argue they can).

    This is not the first time we’ve seen evidence recently of the SCC chafing under GA restrictions on how the SCC regulates Dominion. I still believe the Commission’s decision to reject Dominion’s application to build the Remington solar plant under existing law was a significant regulatory move in this three-way chess game (see “SCC Says Dominion Must Seek Third-Party Solar Alternatives,” BR, October 20, 2015, including my comments). It’s astounding that Dominion has tried for so many years to fight back through the GA; in the long run the SCC still has many, many ways to make life miserable for Dominion. Given that Dominion as a whole is much less dominated by its electric utility business in Virginia than it once was, it make sense for Dominion to make peace with the SCC (and even to help repeal Virginia’s currently-hyper-prescriptive rate framework), in exchange for the SCC staying clean out of Dominion’s non-Virginia-Power corporate and financial affairs.

  4. I guess my question to Acbar might be what was the purpose of the phrase: ” Subject to such criteria and other requirements as may be prescribed by law” ?

    sounds like it’s the law governs…

    I’m not a lawyer nor to do I play one on TV so I’ll have to defer to those who are lawyers but I would have seen a more open/shut case if the word “law”‘ was not present.

    some will argue that what the Constitution did was create the SCC – permanently – such that it cannot be dissolved without a change to the Constitution.

    and I really find the phrase itself a little “modern”. Most Constitutions are old enough that they never foresaw the creation of electricity much less the idea that govt rather than the free market should regulate it.

    this sounds suspiciously like Dominion may have had some role in the re-writing of the Va Constitution in 1971 .. eh?

    was the SCC even mentioned prior to that in the Va Constitution?

  5. another obvious question is who determines what the SCC will regulate or not? Is it the sole power of the SCC to decide?

    • Not being a practicing lawyer, but retired, and not having a paying client here, and feeling free to say what I please, and feeling curmudgeonly enough to say it anyway despite whom it may offend — your questions are the right ones, and illustrate why so often the law is both precedent and common sense, and why precedent so often wins out because common sense can sometimes yield multiple answers . . . .

      Your last question is the easiest. Usually the SCC would take the first crack at defining its own jurisdiction, and that would leave it up to a “protestant” to protest the Commission’s decision, that is, to “take the Commission to court.” But jurisdiction can be decided in other situations, for example, when another body (even the GA) takes an action that the protestant argues it cannot take because the Constitution has given that authority exclusively to the SCC, even though the SCC hasn’t so asserted. In that case the court might seek the opinion of the SCC before rendering its own decision, though it doesn’t have to.

      As for the phrase “Subject to such criteria and other requirements as may be prescribed by law,” how can something be “subject to . . . requirements . . . prescribed by law” unless it exists in the first place? The Constitution assigns this authority: “the Commission shall have the power and be charged with the duty of regulating the rates, charges and services … [of] electric companies.” So, along comes the GA and enacts a subsequent ‘law’ which prescribes that authority out of existence: is that a “requirement of the law” or a negation of the higher law, i.e. the Constitution? I believe the Court will say, yes, it’s a “requirement of the law” that Dominion VP’s base rates are frozen for X years, but it’s also a requirement of the Constitution that the Commission has the “power,” indeed the “duty,” to fix DVP’s rates. The Court will try to read these provisions compatibly, not inconsistently, but if they are unavoidably inconsistent the higher “requirement” wins. I believe the Court will find that a “requirement” enacted by the GA which obliterates a requirement of the Constitution is a fundamental contradiction that cannot stand. Now, I know this may sound like splitting logical hairs but there are likely to be cases out there that have been decided on just this basis and Commissioner Dmitri undoubtedly knows what he’s doing and has his arguments and precedents all ready.

    • The SCC does NOT decide what it will regulate or not; it is assigned jurisdictional subjects either by the Constitution or by the acts of the Assembly. The Va Supreme Court has clearly stated that the Commission has no inherent jurisdiction.

      The SCC once housed the state Fire Marshall office, for instance; more recently, legislation backed by the Allen administration closed down the SCC’s Motor Carrier Division and transferred those duties to the DMV.

      • True. Although I would think that an assignment of jurisdiction through the constitution would require a constitutional amendment (following the process of state constitutional amendment) to change.

  6. Keep in mind this issue meshes with the Dominion solar deal to Gov McAuliffe (below). Gov McAuliffe said he signed the rate freeze mainly because Dominion management would have been devastated without the suspension of rate reviews, and the Gov made Dominion promise to install a bunch of solar in return for his support of the measure.

    Good chess game by the Gov if the Va. supreme court overturns the suspension of rate reviews. I assume he still gets the solar.

    • Yes, good chess, but I think the Gov. isn’t getting anything from DVP he couldn’t have had easily from other electric generation developers, i.e. other, independent builders of solar generation — UNLESS he ALSO got a really low guaranteed rate from DVP: exactly the sort of deal that Jim is trying to flush out here!

  7. The SCC has an interesting history – which Jim’s post encouraged me to go research.

    ” Although the General Assembly prescribed certain general regulations for railroad companies as early as March 11, 1837,it was not until 30 years later that the Board of Public Works was given limited authorityto investigate the railroad and canal companies operating in Virginia”

    that sounds like it was the GA that determined the scope of the SCC duties.

  8. The Commissioner raises an interesting question. I know both Arizona and Nebraska have utility commissions that are established in their state constitutions. They are likely more states in a similar position. I have a recollection that the supreme courts in those two states held the legislature’s authority over the commissions was not absolute. Yet, both states have utility laws that are often changed.

  9. I’m once again at the place where I’m trying to understand the difference between laws and regulations … and I don’t think I’m alone these days – though quite a few seem to think they know!

    😉

    1. – a law says that utilities cannot raise rates unless determined to be fair and reasonable and in the best interests of the public.

    2. – regulation decides what is fair and reasonable …

    3. – if those affected disagree on a particular point – the courts rule on that point…

    Normally the administration is in charge of the offices that regulate except in the case where the regulator is independent and has it’s own charter.

    Think not only the SCC but Metro or water authorities that do not report to higher administrative control but the laws they operate under when they regulate – those laws can be changed.

    hypothetical example – the Commission to regulate buggy whips – loses it’s role when the state repeals all buggy whip laws but the Commission itself still exists.

    real world example – The propane company rips you off and you find out that propane, unlike other utilities has almost no regulation.

    http://www.nbcwashington.com/news/local/The-Propane-Problem-169533066.html

    • Larry, generally the question of what is a reasonable rate has been determined by administrative litigation. For a rate increase, the applicant had to prepare a direct case that demonstrated the new rate was just and reasonable – often cost-based. Normally, a PUC’s rules specified what evidence and studies must be filed and also provided procedures to govern the hearing.

      Many regulatory commissions, most especially, the FCC generally abandoned live hearings in favor of paper ones. Challenges and replies are written. The APA permits paper hearings except when witness credibility is at issue. FERC still uses live hearings in some instances.

      For the last 20 plus years, the FCC has regulated most carrier services by formulas set forth it its rules. A carrier is required to adjust its rates (often downward) based on a formula. The carrier is required to put its data in a spreadsheet and show how it complies with the rules. Congress has permitted the FCC to forbear from regulation when three conditions are shown to exist (chiefly that the service at issue is fully competitive). The FCC has also preempted the states for the regulation of many intrastate telecom services, based on the 1996 amendments to the 34 Act.

      But even where a service has been deregulated for price setting, the FCC still takes consumer and competitor complaints.

      • @TMT – given the fairly comprehensive regulatory environment you cite – which essentially has bureaucrats deciding price – do you think we have a true free-market system?

        and would you get rid of the regulatory folks to return us to a free market and let the market decide price?

        The Va SCC has been around for more than a century – the FCC for more than half a century.

        all this talk about the free market makes me wonder if we’ve not had a true free market for a long time… and yet we keep hearing that things like Health Care should be a free market…

        should we get rid of the FCC and SCC also?

        • No, Larry, we don’t have a free market system in utilities, at least not for retail and wholesale gas and electric. (Toss water and sanitary sewer in as well.) The policy argument has always been natural monopolies (where one firm can produce goods/services at lower cost than more than multiple firms can) should be regulated. Other reasons for regulation have historically been businesses affected with the public interest should be regulated. They generally have a franchise in which to operate. Say taxi cabs, private toll roads)

          Good examples are retail natural gas and electric. No one would replicate their local distribution networks. The same used to be true with telephone and cable TV companies. But know most homes have at least two wires (fiber or twisted copper pair for telephone or fiber or coaxial cable for cable TV). Plus many people have cut the cord and use only cell phones at home. The case for regulating basic telephone or cable TV is not strong. And, at least from the Clinton Administration through the early Obama Administration, regulators have keep their hands off Internet except for basic consumer protection (fraud, billing disputes). Network Neutrality muddles the issue.

          Wholesale services don’t need much regulation except for issues related to interconnection and exchange of commodities/services, where discrimination and price gouging are likely to occur.

          I think that, under both the Bush and Obama presidencies, the FCC has grossly overreached in some areas. The courts have, IMO, been too tolerant of such excesses. Having said that, there still is a role for the FCC in consumer protection, management of radio spectrum licenses and non-licensed uses, and investigation of complaints, both for consumers and among carriers and other service providers.

          I need to think more about health care before I opine on that issue.

    • Dear LarryG: just go to Law School, you’d love it. (heh, heh, heh)

      • re: “subject to the law” verses the absence of that phrase…

        I believe the intent of the Constitution was to create a permanent SCC but to have the GA define what the SCC would regulate or not – versus having the SCC itself define what would be regulated.

        re: regulated natural monopolies

        seems like the areas of regulation of the SCC extend beyond natural monopolies like insurance, financial institutions, etc .. correct?

        what defines/justifies the legitimate areas of regulation that go beyond natural monopolies? is it protection of the public?

        when I ask if regulation affects the free market it’s more than a rhetorical question … because the current political environment depicts regulation as a progressive top-down govt evil that destroys productivity and competition and yet it appears the SCC and other regulators like the FCC and FDA were created back near 1900 or so – hardly an era of liberal progressive philosophy…

        • The SCC does not engage in ratemaking for insurance companies (other than setting rates for workers compensation insurance) banks, securities dealers, etc. Those are not natural monopolies, such as utilities are.

          The SCC’s jurisdiction over the financial entities involves enforcing laws against deceptive practices; ensuring the financial stability of banks, S&Ls and credit unions chartered by the Commonwealth and making sure insurance companies abide by their schedules and tariffs and that agents properly account for premiums collected, etc. It acts as the enforcement arm of the Legislature in most of these activities.

      • No you won’t love it. Law School is a miserable place to spend three years of your life.

      • I’m pretty sure the law would frustrate me in many ways!

        but I revere the law as what defines this country and differentiates us from many lesser countries.

  10. Reading from: ” The Evolution of the Virginia’s State Corporation Commission” :

    this is a long post but it details several answers to questions brought up.

    http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2626&context=wmlr

    THE STATE CORPORATION COMMISSION

    The 1902 Constitution

    Ignoring the long-recognized doctrine of separation of powers, the framers of Virginia’s 1902 Constitution created the State Corporation Commission, enumerating in meticulous detail its duties and procedures, and vesting it with legislative, judicial, and executive powers.

    The new Commission had broad jurisdiction and influence and encompassed all the duties previously vested in the Railroad Commissioner and theBoard of Public Works. 4 A review of the Debates of the 1902 Constitutional Convention illustrates that the sole reason for the creation of the three-member commission was to protect the people of Virginia.

    The underlying mood of the convention members regarding the role of the regulatory body they proposed to create is shown by the remarks of Mr. Braxton:

    If consumers, who ultimately bear the cost of transportation in the price of everything they use, or producers, the local value of whose products is determined by deducting from their value at the place of consumption the cost of transportation thereto, are to be protected from the rapacity of the common carriers of the country, it must be accomplished by a body organized by the government
    for the purpose, with due authority to administer equal justice between the two opposite interests.

    There were two principal reasons why the State Corporation Commission was created by constitution rather than statute:

    Prior attempts by the legislature to create such a regulatory agency had been defeated by the powerful railroad lobby, and it was proposed to give the Commission all the powers of a court of record, which could be done only by constitutional provision.

    With a staff of four men, the first three members of the State Corporation Commission took their oaths of office on March 2, 1903, and commenced an innovation in the machinery of government and regulatory administration which remains unique-the Commission, unlike others of its kind, is endowed with real, rather than “quasi” legislative, judicial, and executive powers.

    The SCC, as the Commission soon became known, quickly became a major regulatory body. Although it was created initially to regulate the rates and services of railroads and telephone and telegraph companies, as well as to grant charters to corporations in the Commonwealth and to administer the laws to which they are subject, between 1906and 1971 there were more than 50 legislative enactments imposing new duties and responsibilities upon the Commission.

    The 1902 Constitution vested the Commission with the legislative and police power of the state to fix the rates and charges of railroads and certain other transportation and transmission companies as defined therein.

    It should be noted that the power of the Interstate Commerce Commission to prescribe rates for the future was challenged successfully in 1897 in ICC v. Cincinnati,New Orleans, & Tex. Pac. Ry. 167 U.S. 479 (1897).

    The ICO could condemn an unreasonable rate but could not prescribe the remedy. On June 29, 1906, approximatelyfour years after the Virginia Commission was given such power over intrastate rates, the Hepburn Act was passed, ch. 3591, 34 Stat. 584. Among other things, the Act conferred upon the federal commission the power to prescribe maximum interstate rates, ch. 3591, 34 Stat. In addition to the jurisdiction conferred by the Constitution, the General Assembly, by statutes, has imposed the following duties on the Commission:

    1906-Regulation of insurance.
    1906-Investigate cases of suspected arson.
    1910-Valuation of the property of public utilities for local taxation, and assessment of
    state taxes on them.
    1910-Regulation of banking.
    1914-Fixing the rates of public utilities, and regulating their services.
    1915-Taxation of the rolling stock of, car line companies.
    1918-Administration of the Blue Sky Law.
    1923-Regulation of transportation by motor vehicle.
    1924-Fixing rates of pilotage.
    1928-Regulation of aeronautics.
    1928-Licensing of dams.
    1930-Transferring to the Commission from the office of the Secretary of the Commonwealth
    the recording of corporate charters.
    1932-Collection of the gross receipts tax on common carriers by motor vehicle.
    1934-Regulation of the issuance of securities by public utilities.
    1934-Regulation of contracts between public utilities and affiliates.
    1938-Transferring from the Department of Highways to the Commission functions
    relating to the construction and maintenance of airports.
    1940-Assessment and collection of the motor fuel road tax.
    1940-Supervision of Blue Cross and Blue Shield contracts.
    1946-Fixing the maximum charges of small loan companies.
    1948-Registration of trade-marks.

    During the 69 years between the proclamation and “acknowledgement” of the Constitution of 1902 and the adoption of the 1971 Constitution, the Commission grew from its original staff of four to a staff of 369, which today includes electrical, mechanical, civil, aeronautical, and safety engineers; numerous bank and insurance examiners; public utility, tax, commercial and cost accountants; enforcement and arson investigators;

    1956-Collection of surtax on motor fuel used in the state by heavy vehicles.
    1956-Regulation of transportation of explosives.
    1956-Regulation of sight-seeing carriers.
    1956-Licensing of automobile clubs.
    1958-Administration of uninsured motorists’ fund.
    1958-Registration of service marks.
    1958-Registration of laundry marks.
    1960-Regulations for installation of boilers.
    1964-Regulation of insurance premium finance companies.
    1964-Regulation of the leasing of motor vehicles.
    1964-Central filing office, Uniform Commercial Code.
    1964-Publish motor vehicle reciprocity agreements and decide whether a motor vehicle
    carrier is entitled to reciprocity.
    1964-Register Interstate Commerce Commission authority of motor carriers.
    1964-Assessment for local taxation of petroleum pipe line companies.
    1966-Regulation of, parachute jumping.
    1968-Administration of-Take-Over-Bid Disclosure Act.
    1968–Administration of Consumer Credit Code.
    1968-Regulation of sight-seeing and charter party boats.
    1968-Regulation of Basic Property Insurance Inspection and Placement Plan.
    1970-Regulation of Radio Common Carriers.
    1970-Regulation of Virginia Insurance Guaranty Association.
    1970-Administration of Virginia Industrialized Building Unit and Mobile Home
    Safety Law.
    1971-Mediate controversies between public service companies and their employees*
    and patrons.

    the whole thing is worth reading…………… and to me ….. it illustrates quite clearly that regulation is not some modern liberal/progressive concept at all – it was clearly on the minds of a lot of leaders of that era.

    and – I’d be curious if folks like Jim Bacon and similar folks who say they think regulation has gone too far – would look at the areas the SCC now regulates and want to repeal areas current regulated – which ones…. in other words – lets have the Conservatives who oppose regulation begin a list of things they’d un-regulate… and see how much of that regulation far predates the current mythology of the govt regulating too much ….

    • LarryG — Thanks for the long post from the article about the 1902 reforms. You asked earlier, “the current political environment depicts regulation as a progressive top-down govt evil that destroys productivity and competition and yet it appears the SCC and other regulators like the FCC and FDA were created back near 1900 or so – hardly an era of liberal progressive philosophy…”

      Ahah! There are, indeed, free-market types who jump to that extreme conclusion — spare us, O Lord, from such Ayn Rand devotees!

      The problem, as any competent economist will admit, is that competition is incapable of maintaining a competitive marketplace in certain circumstances. “Market failure” results from the presence of a “natural monopoly,” as TMT correctly pointed out above. An electric distribution utility is a classic natural monopoly; people are willing to grant a territorial monopoly in order to avoid having multiple pole lines from competing utilities down every street; the condition, of course, is that the utility that’s granted the monopoly must agree to regulation. Moreover, not everything the utility does requires a monopoly, so not everything should be regulated like one; for example, PJM provides a wholesale electricity market that provides plenty of competition at the generation level.

      Another area of failed competition is called “government failure,” where government itself creates a monopoly or business advantage for some at the expense of others, accidentally or on purpose. COPN laws, for example, are intended to prevent unneeded construction of facilities, but they give an obvious business advantage to those who are already operating (and seek to block any new competitors). Zoning and licensing requirements may have the best intentions but are often cited as frequent causes of “government failure” also.

      I don’t understand how anyone can say that the marketplace solves ALL competitive problems. The Progressives realized that a long time ago. They were “liberals” in the classic sense of the word: they believed in the greatest freedom, if appropriately channeled; but they also brought us Prohibition. The Progressive era of economics was exemplified by the Interstate Commerce Act of 1887, the Food and Drug Act of 1906, the Sherman Antitrust Act of 1890, and the Clayton Antitrust Act of 1914. The Interstate Commerce Act became the model for railroad and utility regulation in most States, including Virginia’s 1902 Constitution. Yes, we can argue about TOO MUCH regulation, the excesses of the New Deal era, the source of many of our “government failure” urban problems today like “urban renewal,” rent control and overly-prescriptive zoning — but the necessity for SOME regulation of SOME markets ought to be a given.

    • Very interesting, Larry. Thanks for posting it.

  11. The Virginia State Constitution also requires that all political districts be compact and contiguous. Please look at a map of Virginia’s legislative districts at both the state and federal level. Then ask yourself whether the Imperial Clown Show in Richmond really cares what the state constitution says.

    • Until the feds passed the Voting Rights Law that affected redistricting in the South, the state courts of Virginia regularly enforced the compact and contiguous requirement – at least to some extent.

      Question: would most people rather have a compact district or one that gave them a better chance of being represented by someone with similar views?

      • I could almost buy your argument regarding the Voting Rights Law if the districts weren’t changed again every ten years to reflect the wishes of the party in office. For an example, look at the redistricting of Janet “Big Bird” Howell’s senate district. It had nothing to do with voter rights and everything to do with her efforts to preserve her 20+ year career in the state senate.

        Virginia is for lovers … err … corruption.

  12. I actually think that the efforts to set up majority minority districts has backfired and created other districts that complete diminish the potential effect of minorities in close elections.

    and I’ll say something not very PC. If minorities voted the way they did for POTUS in 2008 and 2012 – in off year elections – we might see differences in some how legislation is done.

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