EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT REDISTRICTING* *But Were Afraid To ...

33 Pages·2001·0.12 MB·English

EVERYTHING YOU
ALWAYS WANTED
TO KNOW ABOUT
REDISTRICTING*
*But Were Afraid To Ask!
AMERICAN CIVIL LIBERTIES UNION
VOTING RIGHTS PROJECT
APRIL, 2001
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . .1
I. REDISTRICTING AND
REAPPORTIONMENT . . . . . . . . . . .2
Q: What is redistricting? . . . . . . . .2
Q: Is redistricting different
from reapportionment? . . . . . . . . .2
II. ONE PERSON, ONE VOTE . . . . . . . . .2
Q: Why bother to redraw
district lines? . . . . . . . . . . . . . . . .2
Q: As far as state and local
offices are concerned, how does
one person, one vote work? . . . . .3
Q: How can a jurisdiction justify
a total deviation among districts
of greater than 10%? . . . . . . . . . .4
Q: Do the same deviation
rules apply to congressional
redistricting? . . . . . . . . . . . . . . . .4
Q: How often must a state
redistrict? . . . . . . . . . . . . . . . . . . .5
III. MINORITY VOTE DILUTION . . . . . . .6
AMERICAN CIVIL LIBERTIES UNION FND.
2725 HARRIS TOWER Q: What is minority vote
233 PEACHTREE STREET dilution? . . . . . . . . . . . . . . . . . . .6
ATLANTA, GEORGIA 30303
[phone] Q: How do some redistricting plans
FAX: [phone] dilute minority voting strength? . .6
i
Q: Is vote dilution prohibited Q: How pervasive must white
by the Constitution? . . . . . . . . . . .7 bloc voting be to satisfy the
third Gingles factor? . . . . . . . . . .12
Q: Does the Voting Rights Act
prohibit vote dilution in Q: Can two minority groups,
redistricting? . . . . . . . . . . . . . . . .7 such as African-Americans and
Hispanics, ever be combined for
Q: Who is protected by the purposes of Section 2? . . . . . . . .13
Voting Rights Act? . . . . . . . . . . . .7
Q: Since we have a secret ballot,
how is it possible to show racial
IV. SECTION 2 OF THE VOTING bloc voting? . . . . . . . . . . . . . . . .13
RIGHTS ACT . . . . . . . . . . . . . . . . .8
Q: Is it necessary to prove
Q: What does Section 2 provide? . .8 that voters are voting because
of race? . . . . . . . . . . . . . . . . . . .14
Q: Why did Congress dispense with
the requirement of proving racial Q: Which elections are the most
purpose under Section 2? . . . . . . .8 important in proving racial
bloc voting and in determining
Q: How do you prove a violation of whether it is legally significant? . .14
the results standard of Section 2? . .9
Q: What is “proportionality”
Q: How compact must a district and does it play a role in the
be to satisfy Section 2 and the Gingles analysis? . . . . . . . . . . . .15
first Gingles factor? . . . . . . . . . .10
Q: If a plan drawn to remedy
Q: What is the test for determining a Section 2 violation would
whether a minority is a “majority” necessarily exceed proportionality,
in a district? . . . . . . . . . . . . . . . .11 would it for that reason be
unacceptable? . . . . . . . . . . . . . . .15
Q: If a minority is too small to be a
majority in a district, can it bring a Q: Does the Gingles analysis
Section 2 claim on the ground that also apply to single-member
its ability to influence elections has district plans? . . . . . . . . . . . . . . .16
been diluted? . . . . . . . . . . . . . . .11
Q: How does a court determine V. SECTION 5 OF THE VOTING
whether a minority is politically RIGHTS ACT . . . . . . . . . . . . . . . .16
cohesive within the meaning of the
second Gingles factor? . . . . . . . .12 Q: How does Section 5 work? . .16
ii iii
Q: What states are covered by VI. THE SHAW/MILLER CASES . . . . . .21
Section 5? . . . . . . . . . . . . . . . . .16
Q: What did the Supreme Court
Q: What voting changes are hold in Shaw v.Reno? . . . . . . . .21
by Section 5? . . . . . . . . . . . . . . .17
Q: Has the Court limited Shaw
Q: Is Section 5 permanent? . . . . .17 type claims to districts that were
bizarrely shaped? . . . . . . . . . . . .21
Q: How is preclearance
obtained? . . . . . . . . . . . . . . . . . .17 Q: Did the Court in the Shaw
and Miller cases establish special
Q: What if a jurisdiction refuses rules for white voters allowing
to submit a voting change for them to challenge majority-
preclearance? . . . . . . . . . . . . . . .18 minority districts? . . . . . . . . . . .22
Q: What standard do the District Q: Are the Shaw/Miller cases
of Columbia Court and the consistent with the spirit of the
Attorney General use in determining Fourteenth Amendment? . . . . . . .22
whether a proposed change has
a discriminatory effect? . . . . . . . .18 Q: Is it still permissible to draw
majority-minority districts? . . . . .23
Q: Can an intervening court
decision alter the benchmark for Q: Are majority-minority districts
determining retrogression under a form of gerrymandering? . . . . .24
Section 5? . . . . . . . . . . . . . . . . .19
Q: Are majority-minority districts
Q: What is the standard for a form of affirmative action? . . .24
determining whether a proposed
change has a discriminatory Q: Do majority-minority districts
purpose under Section 5? . . . . . .19 segregate voters? . . . . . . . . . . . .25
Q: Can minorities participate in the Q: Is race simply a stereotype
Section 5 preclearance process? . .20 that should be avoided in
redistricting? . . . . . . . . . . . . . . .25
Q: What is the procedure for
making a Section 5 comment? . . .20 Q: Do majority-minority districts
stigmatize or harm voters? . . . . .26
Q: If a voting change has been
precleared under Section 5, can Q: Do majority-minority districts
it still be challenged under increase racial tension? . . . . . . . .27
Section 2? . . . . . . . . . . . . . . . . .20
iv v
Q: Have majority-minority VIII.THE 2000 CENSUS . . . . . . . . . . . .33
districts increased political
opportunities for minorities? . . . .27 Q: What is Public Law 94-171
data? . . . . . . . . . . . . . . . . . . . . .33
Q: Are majority-minority
districts still needed? . . . . . . . . . .27 Q: What is the difference between
the census enumeration and the
Q: Is there any way to avoid a corrected count? . . . . . . . . . . . . .33
Shaw/Miller challenge? . . . . . . . .28
Q: Is statistical sampling something
Q: Are minorities better off new for the census bureau? . . . . .34
influencing the election of
white candidates, rather than Q: What is the basis of the dispute
minority candidates whom they concerning use of corrected data? .35
might prefer? . . . . . . . . . . . . . . .30
Q: Which data – the enumeration
Q: Did the creation of majority- or the corrected data – did the
minority districts have unintended census bureau decide to release as
political consequences by causing PL 94-171 data for redistricting? .36
the Democratic party to lose control
of Congress in 1994? . . . . . . . . .30 Q: Was the enumerated undercount
reduced in the 2000 census? . . . .36
Q: Shouldn’t redistricting be
color blind? . . . . . . . . . . . . . . . .31 Q: Will the corrected data for
the 2000 census be released in
the future? . . . . . . . . . . . . . . . . .37
VII. PARTISAN GERRYMANDERING . . .32
Q: What impact does the decision
Q: Can the party in control enact to release the enumerated data as
a plan to limit the political the PL 94-171 have on the
opportunities of another party? . .32 redistricting process and on
racial minorities in particular? . .37
Q: Have the courts invalidated
many redistricting plans on the Q: What impact would future
basis that they were partisan release of corrected data have on
gerrymanders? . . . . . . . . . . . . . .33 the redistricting process? . . . . . . .38
Q: Did the 200 census use multi-
racial or multi-ethnic categories? .38
Q: What impact will the new categories
likely have on redistricting? . . . .39
vi vii
CONCLUSION . . . . . . . . . . . . . . . . . . .39 INTRODUCTION
ENDNOTES . . . . . . . . . . . . . . . . . . . .40
This pamphlet attempts to answer some
of the questions most frequently asked
APPENDIX A
about redistricting: thus the question and
Organizations that work with
answer format. Several caveats are in
redistricting and other voting
order. The law in the voting area is
rights issues . . . . . . . . . . . . . . . .49
always evolving and different courts
often interpret the same laws differently.
APPENDIX B
If you have a specific question about
District Maps from Bush v. Vera . .53
redistricting or a problem not adequately
covered in this pamphlet, you should
seek legal advice.
Redistricting is often thought of as being
highly technical and something best left
to the politicians and the experts.
Nothing could be further from the truth.
Every voter has a vital stake in redistrict-
ing because it determines the composition
of districts that elect public officials at
every level of government. Given the
advances in modern map drawing tech-
nology, it is now possible for everyone to
participate directly in the redistricting
process. But to be an effective player, you
need to know the rules of the game.
For more information or assistance in
redistricting, contact the ACLU’s Voting
Rights Project at the number and address
listed on the front of this pamphlet.
viii 1
REDISTRICTING AND equitable thing to do. Historically, many
states did not redistrict to reflect shifts
REAPPORTIONMENT
and growth in their populations. As a
consequence, the voting power of resi-
Q: What is redistricting? dents of heavily populated areas was
often significantly diluted. In Georgia, for
example, in statewide contests a vote in
Redistricting refers to the process of
45 sparsely populated rural counties had
redrawing the lines of districts from which
20 times the weight of a vote in urban
public officials are elected.1 Redistricting
Fulton County.4 The voters from the 103
typically takes place after each census and
smallest counties in the state, which had
affects all jurisdictions that use districts,
only 22% of the population, also elected
whether for members of Congress, state
a majority of the members of the house.5
legislatures, county commissions, city
In a series of cases in the 1960s, one of
councils, school boards, etc.
which coined the phrase “one person,
one vote,” the Supreme Court held that
Q: Is redistricting different from
the Fourteenth Amendment guaranteed
reapportionment?
“equality” of voting power and that the
electoral systems in states which failed to
Technically, yes, but as a practical matter, allocate voting power on the basis of
no. Reapportionment in its most narrow, population were unconstitutional.6
technical sense refers to the allocation of
representatives to previously established Q: As far as state and local
voting areas, as when Congress allocates,
offices are concerned, how does
or “apportions,” seats in the U.S. House
one person, one vote work?
of Representatives to the several states
following the decennial census.2 But the
terms “reapportionment” and “redis- For state and local offices, one person,
tricting” are generally used interchange- one vote requires the jurisdiction to make
ably and refer to the entire process, at “an honest and good faith effort” to con-
whatever level it takes place, of redraw- struct districts which elect representatives
ing district lines after the census.3 as nearly of equal population as is practi-
cable.7 Population equality is determined
by calculating a district’s deviation from
ONE PERSON, ONE VOTE ideal district size. Ideal district size is
determined by dividing the total popula-
tion by the number of seats involved.
Q: Why bother to redraw district
Deviation is determined by calculating
lines? the extent to which an actual district is
larger (has a “+” deviation) or smaller
The U.S. Constitution and the federal (has a “-” deviation) than the ideal dis-
courts require it. It’s also the fair and trict size.
2 3
Plans with a total population deviation Fourteenth Amendment.12 The courts
(the sum of the largest plus and minus have interpreted Article I as imposing a
deviations) under 10% are regarded as much stricter population equality stan-
complying with one person, one vote.8 dard in congressional redistricting.
Plans with deviations between 10% and Congressional districts must be “as
16.4% are acceptable onlyif they can be mathematically equal as reasonably pos-
justified “based on legitimate considera- sible.”13 Deviations from ideal district
tions incident to the effectuation of a size can in theory be justified by a con-
rational state policy.”9 Plans with devia- sistently applied state policy. However,
tions greater than 16.4% are regarded in a case from New Jersey, the Supreme
as unconstitutional and are probably Court invalidated a congressional plan
never justifiable.10 that contained a total deviation of only
0.6984% on the grounds that it was pos-
Q: How can a jurisdiction justify a sible to draw a plan with a smaller devi-
total deviation among districts of ation and the state’s asserted policy had
not been consistently applied.14
greater than 10%?
Given modern technology and the large
A state can justify a deviation greater
size of congressional districts, it is gen-
than 10% based on a rational state poli-
erally possible to draw plans that
cy, such as drawing districts that are com-
accommodate a state’s policies with vir-
pact and contiguous (all parts connected
tually no deviations at all. A number of
and touching), keeping political subdivi-
states drew plans after the 1990 census
sions intact, protecting incumbents, pre-
with a deviation of only one person
serving the core of existing districts, and
from ideal district size.
complying with the Voting Rights Act.11
Given the ease with which districts of
Q: How often must a state
equal population can be drawn using
redistrict?
modern redistricting technology, and the
fact that a plan with an excessive devia-
tion is an invitation to a lawsuit, a juris- As a matter of federal law, redistricting is
diction has every incentive to draw a plan required only once a decade, and only
with a deviation of less than 10%. then if districts are malapportioned.15
States are free to redistrict more often if
Q: Do the same deviation they wish, but there is little incentive for
them to do so. Redistricting is time con-
rules apply to congressional
suming and disruptive. There are general-
redistricting?
ly no more accurate data available than
the preexisting federal census. And
No. The duty to reapportion Congress is incumbents are disinclined to change the
imposed by Article I, Section 2 of the districts from which they were elected.
U.S. Constitution rather than the Indeed, some states have enacted laws
4 5
prohibiting redistricting more frequently tricts.18 All of these techniques may result
than once every ten years.16 in a districting plan that violates the
Voting Rights Act, as well as the
Fourteenth Amendment.19
MINORITY VOTE DILUTION
Q: Is vote dilution prohibited by the
Constitution?
Q: What is minority vote dilution?
Yes. A reapportionment plan that dilutes
Vote dilution, as opposed to vote denial,
minority voting strength is unconstitu-
refers to the use of redistricting plans and
tional if it was conceived or operated as a
other voting practices that minimize or
purposeful device to further racial dis-
cancel out the voting strength of racial
crimination.20 Race need not be the sole
and other minorities. In the words of the
or main purpose, but only a motivating
Supreme Court, the essence of a vote
factor in the decisionmaking process.21
dilution claim “is that a certain electoral
law, practice, or structure interacts with
Q: Does the Voting Rights
social and historical conditions to cause
Act prohibit vote dilution in
an inequality in the opportunities enjoyed
by black and white voters to elect their redistricting?
preferred representatives.”17
Yes. Two provisions of the Voting Rights
Q: What are some of the techniques
Act, Section 222 and Section 5,23 prohibit
used in redistricting plans to dilute the use of voting practices or procedures,
minority voting strength? including redistricting plans, that dilute
minority voting strength.
Three techniques frequently used to
Q: Who is protected by the Voting
dilute minority voting strength are
Rights Act?
“cracking,” “stacking,” and “packing.”
“Cracking” refers to fragmenting con-
centrations of minority population and When it was first enacted, the Voting
dispersing them among other districts to Rights Act prohibited discrimination based
ensure that all districts are majority on “race or color.”24 In 1975 Congress
white. “Stacking” refers to combining extended the protection of the Act to lan-
concentrations of minority population guage minorities, defined as American
with greater concentrations of white pop- Indians, Asian-Americans, Alaskan
ulation, again to ensure that districts are Natives, and persons of Spanish Heritage.25
majority white. “Packing” refers to con-
centrating as many minorities as possible
in as few districts as possible to minimize
the number of majority-minority dis-
6 7
SECTION 2 OF THE VOTING requirement of proving the subjective
motives of a legislative body imposed an
RIGHTS ACT
“inordinately difficult” burden of proof
on minority plaintiffs.27 As Judge John
Q: What does Section 2 provide? Minor Wisdom wrote in an early voting
case, requiring proof of an unconstitu-
tional legislative purpose was “to burden
Section 2 provides that a voting practice
the plaintiffs with the necessity of finding
is unlawful if it “results” in discrimina-
the authoritative meaning of an oracle
tion, i.e., if, based on the totality of cir-
that is Delphic only to the court.”28
cumstances, it provides minorities with
“less opportunity than other members of
Q: How do you prove a violation of
the electorate to participate in the politi-
the results standard of Section 2?
cal process and to elect representatives of
their choice.”26 Although Section 2 does
not require proof of racial purpose, prac- The most important case interpreting
tices which were enacted or are being Section 2 is Thornburg v. Gingles,29 in
maintained for the purpose of discrimi- which the Supreme Court invalidated
nating on the basis of race or language multi-member legislative districts in a
minority status would also be unlawful redistricting plan adopted by North
under the statute. Carolina after the 1980 census. The Court
identified three factors, known as the
Q: Why did Congress dispense with “Gingles factors,” that are of primary
the requirement of proving racial importance in determining a violation of
the statute when the racial makeup of an
purpose under Section 2?
election district is challenged: (1) whether
“the minority group . . . is sufficiently large
Congress did not require proof of racial
and geographically compact to constitute a
purpose for a statutory violation for sev-
majority in a single-member district;” (2)
eral reasons, the most important of
whether “the minority group . . . is politi-
which was that, to ask whether public
cally cohesive,” i.e., tends to vote as a bloc;
officials acted out of bias or intended to
and (3) whether “the majority votes suffi-
discriminate against a minority group,
ciently as a bloc to enable it - in the absence
was to ask the “wrong question.” The
of special circumstances . . . usually to
relevant inquiry, according to Congress,
defeat the minority’s preferred candidate.”30
was whether minorities “have equal
access to the process of electing their rep-
The legislative history further provides
resentatives.” The intent requirement
that “a variety of factors, depending upon
was also “unnecessarily divisive” because
the kind of rule, practice, or procedure
it required plaintiffs to allege and prove
called into question” are also relevant in
that local officials, or indeed entire com-
determining a violation.31 Typical factors
munities, were racists. Finally, the
identified in the Senate report include: the
8 9