HomeMy WebLinkAboutCOM 0042.000 2010-2012 6 0JMtV � OS N
� J i yf ' . • Phone: (808) 326- 5684 •
BRENDA J. FORD -
; Fax: (808) 329- 4786
Council Member E -Mail: bford @co.hawaii.hi.us
District 7 - Central Kona • .;F
HAWAII COUNTY COUNCIL
County of Hawai
Kailua Trade Center ti
75 -5706 Hanama Place, Suite 109
Kailua -Kona, Hawai 'i 96740
DATE: December 22, 2010
TO: Dominic Yagong, Chairperson,
and Members of the Hawai`i County Council
FROM: Brenda J. Ford, Council Member '"
SUBJECT: Transmitting A Training Manual For The Council Members
Attached please find a manual, How to Draw Redistricting Plans That Will Stand Up in Court by
Peter S. Wattson, Senate Counsel, Minnesota for review and reference. Please reproduce 14
copies of this manual to distribute it to all council members. Since redistricting occurs in the
County of Hawai`i in 2011, this manual allows council members to read and understand the
redistricting process.
I request that this matter be waived from the Committee on Governmental Relations to the
Council and placed on the agenda for January 5, 2011.
This matter should take less than five minutes.
Thank you.
BJF
Att.
Comm. No.
Ref. To: CO M
Ref. Date 'EC 2 2 2Qfid
Serving the Interests of the People of Our Island
Hawai`i County Is An Equal Opportunity Provider And Employer
How to Draw Redistricting Plans
That Will Stand Up in Court
Peter S. Wattson
Senate Counsel
Minnesota
Contents
I. Introduction
A. Reapportionment and Redistricting
B. Gerrymandering
1. Packing
2. Fracturing
C. The Facts of Life
1. Creating a Gerrymander
2. The Need for Limits
II. Draw Districts of Equal Population
A. Use Official Census Bureau Population Counts
1. Alternative Population Counts
2. Use of Sampling to Eliminate Undercount
3. Exclusion of Undocumented Aliens
4. Inclusion of Overseas Military Personnel
B. Measuring Population Equality
C. Congressional Plans
1. "As Nearly Equal in Population As Practicable"
2. Unless Necessary to Achieve "Some Legitimate State Objective"
D. Legislative Plans
1. An Overall Range of Less than Ten Percent
2. Unless Necessary to Achieve Some "Rational State Policy"
III. Don't Discriminate Against Racial or Language Minorities
A. Section 2 of the Voting Rights Act
1. No Discriminatory Effect
2. The Three Gingles Preconditions
3. "The Totality of the Circumstances"
4. Draw Districts the Minority Has a Fair Chance to Win
B. Section 5 of the Voting Rights Act
1. In "Covered Jurisdictions," Plans Must be Precleared
2. Do Not Regress
3. You Need Not Maximize the Number of Minority Districts
C. Equal Protection Clause of the 14th Amendment
1. You May Consider Race in Drawing Districts
2. Avoid Drawing a Racial Gerrymander
a. Beware of Bizarre Shapes
b. Draw Districts that are Reasonably Compact
c. Beware of Making Race Your Dominant Motive
a. Beware of Using Race as a Proxy for Political Affiliation
b. Follow Traditional Districting Principles
2. Strict Scrutiny is Almost Always Fatal
a. A Compelling Governmental Interest
b. Narrowly Tailored to Achieve that Interest
(1) Remedying Past Discrimination
(2) Avoiding Retrogression Under Section 5
(3) Avoiding a Violation of Section 2
II. Don't Go Overboard with Partisan Gerrymandering
A. Partisan Gerrymandering is a Justiciable Issue
B. Can It Be Proved?
V. Prepare to Defend Your Plan in Both State and Federal Courts
A. Federal Court Must Defer to State Court
B. Federal Court May Not Directly Review State Court Decision
C. Plan Approved by State Court Subject to Collateral Attack in Federal Court
D. Federal Court Must Defer To State Remedies
E. Attorney General May Represent State in Federal Court
Table of Authorities
I. Introduction
The purpose of this paper is to acquaint you with the major federal cases that will govern
the way you draw your legislative and congressional redistricting plans following the 2000
census so that you may learn how to draw redistricting plans that will stand up in court.
But, before I get into the cases, I think it is important to clarify some terms I will be using
and to explain how the redistricting process works.
A. Reapportionment and Redistricting
"Reapportionment" is the process of reassigning a given number of seats in a legislative
body to established districts, usually in accordance with an established plan or formula. The
number and boundaries of the districts do not change, but the number of members per district
does.
"Redistricting" is the process of changing the district boundaries. The number of
members per district does not change, but the districts' boundaries do.
The relationship between reapportionment and redistricting can most easily be seen by
examining the U.S. House of Representatives. Every ten years the 435 seats in the House of
Representatives are reapportioned among the 50 states in accordance with the latest federal
census. As the population of some states grows faster than that of others, congressional seats
move from the slow - growing states to the fast - growing ones. Then, within each of the states that
is entitled to more than one representative, the boundaries of the congressional districts are
redrawn to make their populations equal. The state is redistricted to accommodate its
reapportionment of congressmen.
Reapportionment, in the narrow sense in which I will be using it here, is not a partisan
political process. It is a mathematical one. The decennial reapportionment of the U.S. House of
Representatives is carried out in accordance with a statutory formula, called the "method of
equal proportions," established in 1941. 2 U.S.C. Sections 2a and 2b. It is not subject to partisan
manipulation, except in determining who gets counted in the census. The decision of Congress to
use this particular formula, rather than another, has been upheld by the Supreme Court. Dept. of
Commerce v. Montana, 503 U.S. 442 (1992).
Redistricting, on the other hand, is highly partisan. This is because, in redrawing district
boundaries, the drafter has such wide discretion in deciding where the boundaries will run.
Creative drafting can give one party a significant advantage in elections, as I shall explain in a
moment.
B. Gerrymandering
The process of drawing districts with odd shapes to create an unfair advantage is called
"gerrymandering."
Like "reapportionment," the term "gerrymandering" has become so popular that it has
lost its original precision and is often used to describe any technique by which a political party
attempts to give itself an unfair advantage.
Used in its narrow sense, to refer only to the practice of creating districts that look like
monsters, there are basically just two techniques — packing and fracturing. How do they work?
1. Packing
"Packing" is drawing district boundary lines so that the members of the minority are
concentrated, or "packed," into as few districts as possible. They become a supermajority in the
packed districts 70, 80, or 90 percent. They can elect representatives from those districts, but
their votes in excess of a simple majority are "wasted." They are not available to help elect
representatives in other districts, so they cannot elect representatives in proportion to their
numbers in the state as a whole.
2. Fracturing
"Fracturing" is drawing district lines so that the minority population is broken up.
Members of the minority are spread among as many districts as possible, keeping them a
minority in every district, rather than permitting them to concentrate their strength enough to
elect representatives in some districts.
C. The Facts of Life
1. Creating a Gerrymander
It is a fact of life in redistricting that the district lines are always going to be drawn by the
majority in power, and that the majority will always be tempted to draw the lines in such a way
as to enhance their prospects for victory at the next election.
If the supporters of the minority party were distributed evenly throughout the state, there
would be no need to gerrymander. In a state where the minority party had 49 percent of the vote,
they would lose every seat.
But I suspect that political minorities are not evenly distributed in any state, so the
persons drawing the redistricting plan try to determine where they are, and draw their districts
accordingly: first packing as many of them into as few districts as possible and then, where they
can't be packed, fracturing them into as many districts as possible. It is this process of drawing
the district lines to first pack and then fracture the minority that creates the dragon -like districts
called gerrymanders.
2. The Need for Limits
The more freedom the majority has to determine where the district boundary lines will
go, the greater the temptation to gerrymander. Equal - population requirements, disfavor of
multimember districts, and minority representation requirements are all attempts by the courts to
restrain the majority from taking unfair advantage of their majority position when drawing
redistricting plans.
II. Draw Districts of Equal Population
A. Use Official Census Bureau Population Counts
1. Alternative Population Counts
The first requirement for any redistricting plan to stand up in court is to provide districts
of substantially equal population. But how do you know the population? The obvious way is to
use official Census Bureau population counts from the 2000 census.
It is true that some legislatures have chosen to use data other than the Census Bureau's
population counts to draw their districts and have had their plans upheld by federal courts. For
example, back in 1966, Hawaii used the number of registered voters, rather than the census of
population, to draw its legislative districts, and had its plan upheld by the U.S. Supreme Court in
the case of Burns v. Richardson, 384 U.S. 73. But there the Court found that the results based on
registered voters were not substantially different from the results based on the total population
count.
A state may conduct its own census on which to base its redistricting plans. For example,
a 1979 Kansas legislative redistricting plan based on the state's 1978 agricultural census was
upheld by a federal district court in the case of Bacon v. Carlin, 575 F. Supp. 763 (D. Kan.
1983), aff'd 466 U.S. 966 (1984). And in 1986, a Massachusetts legislative redistricting plan
based on a state census was upheld by a federal district court in the case of McGovern v.
Connolly, 637 F. Supp. 111 (D. Mass 1986).
Late in the decade, a federal court may find that local government estimates are a more
accurate reflection of current population than old census counts and thus are an acceptable basis
for developing redistricting plans before the next census. Garza v. County of Los Angeles,
Findings of Fact and Conclusions of Law, No. CV 88 -5143 KN (Ex) (C.D. Cal. June 4, 1990).
But generally, the federal courts will not simply accept an alternative basis used by the
states. Rather, they will first check to see whether the districts are of substantially equal
population based on Census Bureau figures. If they are not, the courts will strike them down.
So, if you want your plans to stand up in court, the easiest way is use official Census
Bureau population counts.
2. Use of Sampling to Eliminate Undercount
For the year 2000 census, as there was for the 1990 census, there has been a political
fight over how the population should be counted.
In the 1990s, the main political fight over how to count the population concerned how to
compensate for the historic undercounting of racial and ethnic minorities. In response to a suit by
the City of New York and other plaintiffs that sought to compel the Census Bureau to make a
statistical adjustment to the population data to account for people the Bureau failed to count, the
Bureau agreed to make a fresh determination of whether there should be a statistical adjustment
for an undercount or overcount in the 1990 census. The Bureau agreed to conduct a post
enumeration survey of at least 150,000 households to use as the basis for the adjustment. The
Bureau agreed that, by July 15, 1991, it would either publish adjusted population data or would
publish its reasons for not making the adjustment. Any population data published before then,
such as the state totals published December 31, 1990, and the block totals published April 1,
1991, would contain a warning that they were subject to correction by July 15. The Bureau
ultimately decided not to make a statistical adjustment to correct for the undercount, and the
Supreme Court found that its decision was reasonable and within the discretion of the Secretary
of Commerce, in whose Department the Census Bureau is located. Wisconsin v. City of New
York, 517 U.S. 1 (1996).
For the 2000 census, the fight has been over whether to use scientific sampling
techniques to conduct the census from the beginning, rather than adjusting the population counts
after they have been issued. The Census Bureau proposed that, in order to obtain information on
at least 90 percent of the households in each census tract, it would use statistical sampling
techniques to estimate the characteristics of the households that did not respond to the first two
mailings of a census questionnaire. In each census tract, the fewer households that responded
initially, the larger would be the size of the sample enumerators would contact directly as part of
their follow -up. The addresses that would be included in the sample would be scientifically
chosen at random to insure they were statistically representative of all nonresponding housing
units in that census tract.
Congress attempted to stop the use of sampling by enacting Pub. L. No. 105 -119, § 209
(j), 111 Stat. 2480 (1997), which required that all data releases for the 2000 census show "the
number of persons enumerated without using statistical methods." It also authorized lawsuits to
determine whether the Bureau's plan to use sampling for apportioning seats in Congress was
constitutional.
In Department of Commerce v. U.S. House of Representatives, 525 U.S. 316 (1999), the
Supreme Court ruled that the Census Act prohibits the use of sampling for purposes of
apportioning representatives in Congress among the states. It did not rule on the constitutionality
of using sampling to determine the distribution of population within each state for purposes of
redistricting its apportionment of congressional seats or the seats in its state legislature.
Following the Supreme Court's decision, the Census Bureau announced its plan to use
statistical sampling methods to conduct a postenumeration survey called the "Accuracy and
Coverage Evaluation." As of May 1, 2000, the Bureau was planning to publish the census counts
derived from sampling along with the head counts mandated by Pub. L. No. 105 -119. In other
words, each state would receive two sets of census counts for each area within the state and
would have to make its own decision which count to use for each area.
3. Exclusion of Undocumented Aliens
Pennsylvania and other states have sought without success to require the Census Bureau
to exclude undocumented aliens from the population counts used to apportion the members of
Congress among the states. See Ridge v. Verity, 715 F. Supp. 1308 (W.D. Pa. 1989); Federation
for American Immigration Reform (FAIR) v. Klutznick, 486 F. Supp. 564 (D.D.C. 1980, appeal
dismissed, 447 U.S. 916 (1980).
4. Inclusion of Overseas Military Personnel
In 1990, the Department of Defense conducted a survey of its overseas military and
civilian employees and their dependents to determine their "address of record." These overseas
military personnel were allocated to the states according to their address of record for purposes
of apportioning the House of Representatives, but were not included in the April 1, 1991, block
counts given to the states for use in redistricting.
Allocating overseas military personnel to the states caused one congressional seat to be
shifted from Massachusetts to Washington State. Massachusetts sued the Secretary of
Commerce, but the Supreme Court upheld the allocation. Franklin v. Massachusetts, 505 U.S.
788 (1992).
B. Measuring Population Equality
How does a court measure the degree of population equality in a redistricting plan? Let
me give you an example. Let's say we have a state with a population of one million, and that it is
entitled to elect ten representatives in Congress. (That is not a realistic number, but it is easier to
work with.) The "ideal" district population would be 100,000. Let's say the legislature draws a
redistricting plan that has five districts with a population of 90,000 and five districts with a
population of 110,000. The "deviations" of the districts would be 10,000 minus and 10,000 plus,
or minus ten percent and plus ten percent. The "average deviation" from the ideal would be
10,000 or ten percent. And the "overall range" would be 20,000, or 20 percent. Most courts have
used what statisticians call the "overall range" to measure the population equality of a
redistricting plan, though they have usually referred to it by other names, such as "maximum
deviation," "total deviation," or "overall deviation."
•
C. Congressional Plans
1. "As Nearly Equal in Population As Practicable"
Once you know the population, and you know how to measure the degree of population
equality in a plan, how equal do the districts have to be? First, you must understand that the
federal courts use two different standards for judging redistricting plans — one for congressional
plans and a different one for legislative plans.
The standard for congressional plans is based on Article I, Section 2, of the U.S.
Constitution, which says:
Representatives ... shall be apportioned among the several States ... according
to their respective numbers ... .
The standard for congressional plans is strict equality. In the 1964 case of Wesberry v.
Sanders, 376 U.S. 1, the U.S. Supreme Court articulated that standard as "as nearly equal in
population as practicable."
Notice the choice of words. The Court did not say "as nearly equal as practical." The
American Heritage Dictionary defines "practicable" as "capable of being ... done ...." It notes
that something "practical" is not only capable of being done, but "also sensible and worthwhile."
It illustrates the difference between the two by pointing out that "It might be practicable to
transport children to school by balloon, but it would not be practical."
In 1983, in Karcher v. Daggett, 462 U.S. 725, the U.S. Supreme Court struck down a
congressional redistricting plan drawn by the New Jersey Legislature that had an overall range of
less than one percent. To be precise, .6984 percent, or 3,674 people. The plaintiffs showed that at
least one other plan before the Legislature had an overall range less than the plan enacted by the
Legislature, thus carrying their burden of proving that the population differences could have been
reduced or eliminated by a good -faith effort to draw districts of equal population.
In the 1980s, three judge federal courts drawing their own redistricting plans achieved
near mathematical equality. For example, in Minnesota the court-drawn plan had an overall
range of 46 people (.0145 percent), LaComb v. Growe, 541 F. Supp. 145 (D. Minn. 1982) aff'd
mem. sub nom. Orwoll v. LaComb, 456 U.S. 966 (1982) (Appendix A, unpublished) (In its
opinion, the Court tells only the sum of all the deviations, 76 people, and refers to it as the "total
population deviation "), and in Colorado the court-drawn plan had an overall range of ten people
(.0020 percent), Carstens v. Lamm, 543 F. Supp. 68, 99 (D. Colo. 1982).
With the improvements in the census and in the computer technology used to draw
redistricting plans after the 1990 census, the degree of population equality that was "practicable"
was even greater than that achieved in the 1980s. Many states drew congressional plans with an
overall range of either zero or one person. That is likely to be the standard for most plans in the
future.
If you can't draw congressional districts that are mathematically equal in population,
don't assume that others can't. Assume that you risk having your plan challenged in court and
replaced by another with a lower overall range.
2. Unless Necessary to Achieve "Some Legitimate State Objective"
Even if a challenger is able to draw a congressional plan with a lower overall range than
yours, you may still be able to save your plan if you can show that each significant deviation
from the ideal was necessary to achieve "some legitimate state objective." Karcher v. Daggett,
462 U.S. 725, 740 (1983). As Justice Brennan, writing for the 5 -4 majority in Karcher v.
Daggett, said:
Any number of consistently applied legislative policies might justify some
variance, including, for instance, making districts compact, respecting municipal
boundaries, preserving the cores of prior districts, and avoiding contests between
incumbent Representatives ... . The State must, however, show with some
specificity that a particular objective required the specific deviations in its plan,
rather than simply relying on general assertions . . . . By necessity, whether
deviations are justified requires case -by -case attention to these factors.
462 U.S. at 740 -41.
So, if you intend to rely on these "legitimate state objectives" to justify any degree of
population inequality in a congressional plan, you would be well advised to articulate those
objectives in advance, follow them consistently, and be prepared to show that you could not have
achieved those objectives in each district with districts that had a smaller deviation from the
ideal. Arkansas, Turner v. Arkansas, 784 F. Supp. 553 (E.D. Ark. 1991); Maryland, Anne
Arundel County Republican Cent. Committee v. State Administrative Bd. of Election Laws, 781
F. Supp. 394 (D. Md. 1991); and West Virginia, Stone v. Hechler, 782 F. Supp. 1116 (W.D.
W.Va. 1992); all were able to meet that burden when congressional plans drawn by the
legislature were challenged in court in the 1990s.
Near the end of the decade, the Supreme Court upheld a court-drawn congressional plan
in Georgia with an overall range of 0.35 percent (about 2,000 people). Abrams v. Johnson, 117 S.
Ct. 1925 (1997). But that was the lowest range of all the plans that met constitutional
requirements, Georgia was able to show it had a consistent historical practice of not splitting
counties outside the Atlanta area, and likely shifts in population since 1990 had made any further
effort to achieve population equality illusory.
D. Legislative Plans
1. An Overall Range of Less than Ten Percent
Fortunately for those of you who will be drawing redistricting plans after the 2000
census, the Supreme Court has adopted a less exacting standard for legislative plans. It is not
based on the Apportionment Clause of Article I, Section 2, which governs congressional plans.
Rather, it is based on the Equal Protection Clause of the 14th Amendment.
As Chief Justice Earl Warren observed in the 1964 case of Reynolds v. Sims, 377 U.S.
533, "mathematical nicety is not a constitutional requisite" when drawing legislative plans. All
that is necessary is that they achieve "substantial equality of population among the various
districts." Id. at 579.
"Substantial equality of population" has come to mean that a legislative plan will not be
thrown out for inequality of population if its overall range is less than ten percent.
The ten - percent standard was first articulated in a dissenting opinion written by Justice
Brennan in the cases of Gaffney v. Cummings, 412 U.S. 735, and White v. Regester, 412 U.S.
755, in 1973. In later cases, the Court majority has endorsed and followed the rule Justice
Brennan's dissent accused them of establishing. See, e.g., Chapman v. Meier, 420 U.S. 1 (1975);
Connor v. Finch, 431 U.S. 407 (1977); Brown v. Thomson, 462 U.S. 835, 842 -43 (1983);
Voinovich v. Quilter, 507 U.S. 146 (1993).
2. Unless Necessary to Achieve Some "Rational State Policy"
The Supreme Court in Reynolds v. Sims had anticipated that some deviations from
population equality in legislative plans might be justified if they were "based on legitimate
considerations incident to the effectuation of a rational state policy ...." 377 U.S. 533, 579
(1964). So far, the only "rational state policy" that has served to justify an overall range of more
than ten percent in a legislative plan has been respecting the boundaries of political subdivisions.
And that has happened in only three cases: Mahan v. Howell, 410 U.S. 315 (1973); Brown v.
Thomson, 462 U.S. 835 (1983); and Voinovich v. Quilter, 507 U.S. 146 (1993).
In Mahan v. Howell, the Supreme Court upheld a legislative redistricting plan enacted by
the Virginia General Assembly that had an overall range among House districts of about 16
percent. The Court took note of the General Assembly's constitutional authority to enact
legislation dealing with particular political subdivisions, and found that this legislative function
was a significant and a substantial aspect of the Assembly's powers and practices, and thus
justified an attempt to preserve political subdivision boundaries in drawing House districts.
Brown v. Thomson, 462 U.S. 835 (1983), upholding a legislative plan with an overall
range of 89 percent, was decided by the Supreme Court on the same day that it decided Karcher
v. Daggett, 462 U.S. 725 (1983), where it threw out a congressional plan with an overall range of
less than one percent. Reconciling these two cases is not easy. Nevertheless, I shall try.
First, as I have noted, the constitutional standard for legislative plans is different from the
standard for congressional plans.
Second, it is important to understand that in Brown v. Thomson the Court was faced with
a reapportionment plan rather than with a redistricting plan. The members of the Wyoming
House of Representatives were being reapportioned among Wyoming's counties, rather than
having new districts created for them. Because the boundaries of the districts were not being
changed, the opportunities for partisan mischief were far reduced.
Third, Wyoming put forward a "rational state policy" to justify an overall range of more
than ten percent, and the Court endorsed it. Writing for the Court, Justice Powell concluded that
Wyoming's constitutional policy— followed since statehood —of using counties as representative
districts and insuring that each county had at least one representative, was supported by
substantial and legitimate state concerns, and had been applied in a manner free from any taint of
arbitrariness or discrimination. He also found that the population deviations were no greater than
necessary to preserve counties as representative districts, and that there was no evidence of a
built -in bias tending to favor particular interests or geographical areas. 462 U.S. at 843 -46.
But Wyoming's policy of affording representation to political subdivisions may have
been less important to the result than was the peculiar posture in which the case was presented to
the Court. The appellants chose not to challenge the 89 percent overall range of the plan, but
rather to challenge only the effect of giving the smallest county a representative. Justice
O'Connor, joined by Justice Stevens, concurred in the result but emphasized that it was only
because the challenge was so narrowly drawn that she had voted to reject it. 462 U.S. at 850. The
Court reaffirmed this narrow view of its holding in Brown by later citing it as authority for the
statement that "no case of ours has indicated that a deviation of some 78% could ever be
justified." Board of Estimate v. Morris, 489 U.S. 688, 702 (1989).
In Voinovich v. Quilter, 507 U.S. 146 (1993), the Supreme Court reversed a decision of
the federal district court striking down Ohio's legislative plan because the overall range of the
House plan was 13.81 percent and the overall range of the Senate plan was 10.54 percent. The
Court pointed out that preserving the boundaries of political subdivisions was a "rational state
policy" that might justify an overall range in excess of ten percent.
There may not be any other "rational state policies" that will justify a legislature in
exceeding the ten - percent standard. But with the multitude of plans that are likely to be
submitted to you for your consideration, you may wish to adopt other policies to govern plans
that are within the ten - percent overall range.
Three -judge courts, who are called upon to draw redistricting plans when legislatures do
not, often have adopted criteria for the parties to follow in submitting proposed plans to the
court. These criteria are not required by the federal constitution, and have not been used to justify
exceeding the ten - percent standard, but they have helped the three judge courts to show the
Supreme Court that they were fair in adopting their plans. These criteria often have included:
• districts must be composed of contiguous territory; Carstens v. Lamm, 543 F. Supp. 68,
87 -88 (D. Colo. 1982); Shayer v. Kirkpatrick, 541 F. Supp. 922, 931 (W.D. Mo. 1982)
aff'd sub nom. Schatzle v. Kirkpatrick, 456 U.S. 966 (1982); LaComb v. Growe, 541 F.
Supp. 145, 148 (D. Minn. 1982);
• districts must be compact; e.g., Carstens v. Lamm, 543 F. Supp. at 87 -88; Shayer v.
Kirkpatrick, 541 F. Supp. at 931; LaComb v. Growe, supra; South Carolina State
Conference of Branches of the National Association for the Advancement of Colored
People v. Riley, 533 F. Supp. 1178, 1181 (D. S.C. 1982); Dunnell v. Austin, 344 F. Supp.
210 (E.D. Mich. 1972); David v. Cahill, 342 F. Supp. 463 (D. N.J. 1972); Preisler v.
Secretary of State, 341 F. Supp. 1158 (W.D. Mo. 1972); Skolnick v. State Electoral
Board, 336 F. Supp. 839, 843 (N.D. Ill. 1971); Citizens Committee for Fair
Congressional Redistricting, Inc. v. Tawes, 253 F. Supp. 731, 734 (D. Md. 1966) aff'd
mem. sub nom. Alton v. Tawes, 384 U.S. 315 (1966); and
• districts should attempt to preserve communities of interest; e.g., Carstens v. Lamm, 543
F. Supp. at 91 -93; Shayer v. Kirkpatrick, 541 F. Supp. at 934; LaComb v. Growe, supra;
Riley, 533 F. Supp. at 1181; Dunnell v. Austin, 344 F. Supp. at 216; Tawes, 253 F. Supp.
at 735; Skolnick, 336 F. Supp. at 845 -46.
As of 1983, the constitutions of 27 states required districts to be composed of contiguous
territory, and the constitutions of 21 states required that districts be compact. Karcher v. Daggett,
462 U.S. 725, 756 n. 18 (1983) (Stevens, J., concurring).
The Supreme Court has begun to refer to these criteria (including respecting the
boundaries of political subdivisions) as "traditional districting principles." See, e.g., Shaw v.
Reno, 509 U.S. 630, 647 (1993) (slip op. at 6 -17); Miller v. Johnson, 515 U.S. 900, 919 (slip op.
at 16) (1995); Shaw v. Hunt, 517 U.S. 899, 116 S. Ct. 1894, 1901 (1996); Bush v. Vera, 517 U.S.
952, , 116 S. Ct. 1941, 1952 (1996); Abrams v. Johnson, 117 S. Ct. 1925, 1932 -38 (1997).
III. Don't Discriminate Against Racial or Language Minorities
A. Section 2 of the Voting Rights Act
1. No Discriminatory Effect
Assuming that you are prepared to meet equal population requirements, you will also
want to make sure you do not discriminate against minorities.
In a democracy, "power to the people" means the power to vote. Section 2 of the Voting
Rights Act of 1965, codified as amended at 42 U.S.C. § 1973,'
§ 1973 Denial or abridgement of right to vote on account of race or color through voting qualifications
orprerequisites; establishment of violation
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure
shall be imposed orapplied by any State or political subdivision in a manner which results in a denial or
abridgement of the right of anycitizen of the United States to vote on account of race or color, or in
contravention of the guarantees set forth insection 1973b(f)(2) of this title, as provided in subsection (b) of this
section.
(b) A violation of subsection (a) of this section is established if based on the totality
of the circumstances, itis shown that the political processes leading to nomination or election in the State or
political subdivision are notequally open to participation by members of a class of citizens protected by
subsection (a) of this section in that itsmembers have less opportunity than other members of the electorate to
participate in the political process and toelect representatives of their choice. The extent to which members of a
protected class have been elected to office inthe State or political subdivision is one circumstance which may be l
considered: Provided, That nothing in thissection establishes a right to have members of a protected class elected
in numbers equal to their proportion in thepopulation.
0
§ 1973b (f)(2) No voting qualification or prerequisite to voting, or standard, practice,
or procedure shall beimposed or applied by any State or political subdivision to deny or abridge the right of any
citizen of the UnitedStates to vote because he is a member of a language minority group.
§ 19731(c)(3) The term "language minorities" or "language
minority group" means persons who areAmerican Indian, Asian American, Alaskan Natives
or of Spanish heritage. Close
attempts to secure this political power for racial and language minorities by prohibiting states
and political subdivisions from imposing or applying voting qualifications; prerequisites to
voting; or standards, practices, or procedures to deny or abridge the right to vote on account of
race or color or because a person is a member of a language minority group.
Section 2 has been used to attack reapportionment and redistricting plans on the ground
that they discriminated against Blacks or Hispanics and abridged their right to vote by diluting
the voting strength of their population in the state.
Until the U.S. Supreme Court case of City of Mobile v. Bolden, 446 U.S. 55, in 1980, the
courts generally considered whether a particular redistricting plan had the effect of diluting the
voting strength of the Black population. In Bolden, Black residents of Mobile, Alabama, charged
that the city's practice of electing commissioners at large diluted minority voting strength. The
Supreme Court, however, refused to throw out the at -large plan. The Court interpreted Section 2
as applying only to actions intended to discriminate against Blacks, and since the plaintiffs had
failed to prove that it was adopted with an intent to discriminate against Blacks, the Court
concluded that the plan did not violate Section 2.
Congress quickly rejected the Court's interpretation by amending Section 2. As enacted,
it had prohibited conduct "to deny or abridge" the rights of racial and language minorities. 42
U.S.C.A. § 1973 (1981). The 1982 amendments changed that to prohibit conduct "which results
in a denial or abridgement" of those rights. Pub.L. No. 97 -205, § 3, June 29, 1982, 96 Stat. 134,
codified as amended at 42 U.S.C. § 1973. Congress also decided to codify the pre- Bolden case
law by adding:
A violation of [section 2] is established if, based on the totality of the
circumstances, it is shown that the political processes leading to nomination or
election in the State or political subdivision are not equally open to participation
by members of a class of citizens protected by [section 2] in that its members
have less opportunity than other members of the electorate to participate in the
political process and to elect representatives of their choice. The extent to which
members of a protected class have been elected to office in the State or political
subdivision is one circumstance which may be considered: Provided, That
nothing in this section establishes a right to have members of a protected class
elected in numbers equal to their proportion in the population.
42 U.S.C. § 1973 (b).
2. The Three Gingles Preconditions
The 1982 amendments to Section 2 were first considered by the Supreme Court in the
1986 case of Thornburg v. Gingles, 478 U.S. 30, which challenged legislative redistricting plans
in North Carolina. At issue were one multimember Senate district, one single- member Senate
district, and five multimember House districts. Justice Brennan's majority opinion upheld the
constitutionality of Section 2, as amended. In order to assist courts in evaluating challenges to
redistricting plans, Justice Brennan imposed three preconditions that a plaintiff must prove
before a court must proceed to a detailed analysis of a plan:
1) that the minority is sufficiently large and geographically compact to constitute a
majority in a single- member district;
2) that it is politically cohesive; and
3) that, in the absence of special circumstances, bloc voting by the White majority usually
defeats the minority's preferred candidate.
478 U.S. at 50 -51.
The Court has since held that the three preconditions also apply to Section 2 challenges to
single- member districts. Growe v. Emison, 507 U.S. 25, 40 -41 (1993).
3. "The Totality of the Circumstances"
Once these three preconditions are satisfied, Justice Brennan said that a court must
consider several additional "objective factors" in determining the "totality of the circumstances"
surrounding an alleged violation of Section 2. They include the following:
1) the extent of the history of official discrimination touching on the class participation in
the democratic process;
2) racially polarized voting;
3) the extent to which the State or political subdivision has used unusually large election
districts, majority vote requirements, antisingle -shot provisions, or other voting practices
that enhance the opportunity for discrimination;
4) denial of access to the candidate slating process for members of the class;
5) the extent to which the members of the minority group bear the effects of
discrimination in areas like education, employment, and health, which hinder effective
participation;
6) whether political campaigns have been characterized by racial appeals;
7) the extent to which members of the protected class have been elected;
8) whether there is a significant lack of responsiveness by elected officials to the
particularized needs of the group; and
9) whether the policy underlying the use of the voting qualification, standard, practice, or
procedure is tenuous.
478 U.S. at 36 -37.
In Gingles, the Court threw out all of the challenged multimember districts, except one
where Black candidates had sometimes managed to get elected.
4. Draw Districts the Minority Has a Fair Chance to Win
If you have a minority population that could elect a representative if given an ideal
district, and the minority population has been politically cohesive, but bloc voting by Whites has
prevented members of the minority from being elected in the past, you may have to create a
district that the minority has a fair chance to win. To do that, they will need an effective voting
majority in the district. How much of a majority is that?
Under Section 2, that depends on "the totality of the circumstances." In other words,
there is no fixed rule that applies to all cases.
The Supreme Court, in the case of United Jewish Organizations of Williamsburgh, Inc. v.
Carey, 430 U.S. 144, 164 (1977), upheld a determination by the Justice Department that a 65
percent non -White population majority was required to achieve a non -White majority of eligible
voters in certain legislative districts in New York City.
The Court of Appeals for the Seventh Circuit, in the case of Ketchum v. Byrne, 740 F.2d
1398 (1984), endorsed the use of a 65 percent Black population majority to achieve an effective
voting majority in the absence of empirical evidence that some other figure was more
appropriate.
Ketchum involved the redistricting of city council wards in the city of Chicago after the
1980 census. The Court of Appeals found that "minority groups generally have a younger
population and, consequently, a larger proportion of individuals who are ineligible to vote," and
that therefore, voting age population was a more appropriate measure of their voting strength
than was total population. Further, because the voting age population of Blacks usually has lower
rates of voter registration and voter turnout, the district court should have considered the use of a
supermajority, such as 65 percent of total population or 60 percent of voting age population
when attempting to draw districts the Blacks could win. The Court of Appeals noted that:
[J]udicial experience can provide a reliable guide to action where empirical data is
ambiguous or not determinative and that a guideline of 65% of total population
(or its equivalent) has achieved general acceptance in redistricting jurisprudence.
... This figure is derived by augmenting a simple majority with an additional 5%
for young population, 5% for low voter registration and 5% for low voter turn-out
Id. at 1415.
But the Court of Appeals in Ketchum also noted that "The 65% figure ... should be
reconsidered regularly to reflect new information and new statistical data," id. at 1416. In
redistricting following the 1990 census, several courts found that, in view of rising rates of voter
registration and voter participation among minority groups, a minority voting age population of
slightly more than 50 percent was sufficient to provide an effective voting majority.
The Seventh Circuit in Ketchum warned that "provision of majorities exceeding 65 %-
70% may result in packing." Id. at 1418. But the Court of Appeals for the First Circuit upheld a
redistricting plan for the city of Boston where, of two districts where Blacks were a majority, one
district had a Black population of 82.1 percent. Latino Political Action Committee v. City of
Boston, 784 F.2d 409 (1st Cir. 1986). The Court found that this packing of Black voters did not
discriminate against Blacks because there was only a moderate degree of racial polarization. As
the Court said, "[T]he less cohesive the bloc, the more "packing" needed to assure ... a Black
representative (though, of course, the less polarized the voting, the less the need to seek that
assurance)" Id. at 414. The Black population was so distributed that, even if fewer Blacks were
put into these two districts, there were not enough Blacks to create a third district with an
effective Black majority. Id.
If you face a charge of a Section 2 violation, you had better be prepared with empirical
data show what is "reasonable and fair" under "the totality of the circumstances," because your
plan may be invalidated for putting either too few or too many members of a minority group into
a given district.
B. Section 5 of the Voting Rights Act
1. In "Covered Jurisdictions," Plans Must be Precleared
While Section 2 of the Voting Rights Act applies throughout the United States, Section 5,
codified as amended at 42 U.S.C. § 1973c, applies only to certain covered jurisdictions, which
are listed in table 6 of NCSL's new book Redistricting Law 2000. If you're covered, you know
it, because all of your election law changes since 1965, and not just your redistricting plans, have
had to be cleared, before they take effect, by either the U.S. Department of Justice or the U.S.
District Court for the District of Columbia.
2. Do Not Regress
Section 5 preclearance of a redistricting plan will be denied if the Justice Department or
the Court concludes that the plan fails to meet the no "retrogression" test, first set forth in Beer v.
United States, 425 U.S. 130 (1976), and reaffirmed in City of Lockhart v. United States., 460
U.S. 125 (1985). Simply stated, the test means that a plan will not be precleared if it makes the
members of a racial or language minority worse off than they were before. One measure of
whether they will be worse off than before is whether they are likely to be able to elect fewer
minority representatives than before.
Beer was a challenge to the 1971 redistricting of the city council seats for the city of New
Orleans. Since 1954, two of the seven council members had been elected at large; five others had
been elected from single- member wards last redrawn in 1961. Even though Blacks were 45
percent of the population and 35 percent of the registered voters in the city as a whole, Blacks
were not a majority of the registered voters in any of the wards, and were a majority of the
population in only one ward. No ward had ever elected a council member who was Black. Under
the 1971 redistricting plan, one ward was created where Blacks were a majority of both the
population and of the registered voters, and one ward was created where Blacks were a majority
of the population but a minority of the registered voters. The Supreme Court held that the plan
was entitled to preclearance since it enhanced, rather than diminished, Blacks' electoral power.
To defend against a charge that your plan will make members of a racial or language
minority group worse off than they were before, you will want to have at least a ten -year history
of the success of the minority at electing representatives.
In 1987, the Justice Department announced that, notwithstanding the retrogression test
employed by the courts when considering preclearance under Section 5, the Justice Department
would apply the stricter standards of Section 2 when deciding whether to preclear a plan under
Section 5. Supplemental Information, 52 Fed. Reg. 487 (1987). This practice has now been
discredited by the Supreme Court. See Reno v. Bossier Parish School Bd., 117 S. Ct. 1491
(1997).
The Bossier Parish (Louisiana) School Board had redrawn its 12 single- member districts
following the 1990 census, using the same plan already precleared for use by its governing body.
In doing so, it rejected a plan proposed by the NAACP that would have created two majority -
Black districts. The Justice Department refused to grant preclearance on the ground that the
NAACP plan demonstrated that Black residents could have been given more opportunity to elect
candidates of their choice and that therefore their voting strength was diluted in violation of
Section 2. The Supreme Court rejected this argument, saying that preclearance under Section 5
may not be denied solely on the basis that a covered jurisdiction's new voting "standard,
practice, or procedure" violates Section 2. The Court pointed out that sections 2 and 5 were
designed to combat two different evils, and that Section 5 was only directed at effects that are
retrogressive.
Even though your plan doesn't make racial or language minorities any worse off than
they were before, and therefore gets precleared by the Justice Department, don't think that you
are immune from a challenge under Section 2. The Justice Department made it clear in 1987 that
"Section 5 preclearance will not immunize any change from later challenge by the United States
under amended Section 2." Supplemental Information, 52 Fed. Reg. 487 (1987). After Bossier
Parish, a subsequent attack by the Justice Department against a precleared plan seems even more
likely.
3. You Need Not Maximize the Number of Minority Districts
Notwithstanding anything you might have been told by the Justice Department in the
1990s, you are not required to maximize the number of majority- minority districts.
In the 1990s round of redistricting, the natural desire of some minority populations to be
grouped together in districts they could win coincided with the desire of some plan drafters to
pack them. Since African Americans and Hispanics have tended to vote Democratic, Republican
plan drafters were more than willing to accommodate their desire to have districts drawn for
them. When new redistricting plans were drawn in preparation for the 1991 and 1992 elections,
the Justice Department was controlled by Republicans. As states like North Carolina, Georgia,
Louisiana, and Texas presented their plans to the Justice Department for approval, the Justice
Department insisted that they create additional majority- minority districts wherever the minority
populations could be found to create them. This insistence was not limited by any concern that
the districts be "geographically compact." The States' plans were first denied preclearance and
then, after majority- minority districts were added, the plans were precleared. These plans have
now all been struck down by the courts. Shaw v. Hunt, 517 U.S. 899, 116 S. Ct. 1894 (1996);
Johnson v. Miller, 864 F. Supp. 1354 (S.D. Ga. 1994), aff'd sub nom. Miller v. Johnson, 515
U.S. 900 (1995); Hays v. Louisiana, 936 F. Supp. 360 (W.D. La. 1996); Vera v. Richards, 861 F.
Supp. 1304 (S.D. Tex. 1994), aff'd sub nom. Bush v. Vera, 517 U.S. 952, 116 S. Ct. 1941 (1996).
The Justice Department's policy of pressuring states to maximize the number of majority -
minority districts was not based on a correct reading of the Voting Rights Act.
Section 2 included a proviso, added through the efforts of Senator Dole in 1982, that
"nothing in this section establishes a right to have members of a protected class elected in
numbers equal to their proportion in the population." 42 U.S.C. § 1973 (b). In other words,
Section 2 did not mandate proportional representation. So, how could it be construed by the
Justice Department to require that a minority group be given the maximum number of elected
representatives?
In Johnson v. DeGrandy, 512 U.S. 997 (1994), the Supreme Court found that it could not
be so construed. The Florida Legislature had drawn a House plan that created nine districts in
Dade County (Miami) where Hispanics had an effective voting majority. Miguel DeGrandy and
the Justice Department attacked the plan in federal court, alleging that the Hispanic population in
Dade County was sufficient to create 11 House districts where Hispanics would have an effective
voting majority. The district court agreed, imposing its own plan (based on one submitted by
DeGrandy) that created 11 Hispanic districts. The Supreme Court reversed, saying that
maximizing the number of majority- minority districts was not required. As Justice Souter said in
his opinion for the Court, "Failure to maximize cannot be the measure of § 2." 512 U.S. 1017
(slip op. at 20). Indeed, even a failure to achieve proportionality does not, by itself, constitute a
violation of Section 2. 512 U.S. at 1009 -12 (slip op. at 11 -14).
The Court refused to draw a bright line giving plan drafters a safe harbor if they created
minority districts in proportion to the minority population. That, the Court said, would ignore the
clear command of the statute that the question of whether minority voters have been given an
equal opportunity to elect representatives of their choice must be decided based on "the totality
of the circumstances," rather than on any single test. It would encourage drafters to draw
majority- minority districts to achieve proportionality even when they were not otherwise
necessary and would foreclose consideration of possible fragmentation of minority populations
among other districts where they were not given a majority. 512 U.S. at 1017 -21 (slip op. at 20-
24).
In the Georgia congressional redistricting case, Miller v. Johnson, 515 U.S. 900 (1995),
the Supreme Court scolded the Justice Department for having pursued its policy of maximizing
the number of majority- minority districts. As the Court said:
Although the Government now disavows having had that policy ... and seems to
concede its impropriety ... the District Court's well- documented factual finding
was that the Department did adopt a maximization policy and followed it in
objecting to Georgia's first two plans .... In utilizing § 5 to require States to
create majority- minority districts wherever possible, the Department of Justice
expanded its authority under the statute beyond what Congress intended and we
have upheld.
515 U.S. at 924 -25.
C. Equal Protection Clause of the 14th Amendment
When drawing a minority district to avoid a violation of Section 2 or Section 5 of the
Voting Rights Act, you must take care not to create a racial gerrymander that runs afoul of the
Equal Protection Clause of the 14th Amendment.
1. You May Consider Race in Drawing Districts
Race -based redistricting is not always unconstitutional. As the Supreme Court recognized
in Shaw v. Reno, 509 U.S. 630 (1993):
[R]edistricting differs from other kinds of state decisionmaking in that the
legislature is always aware of race when it draws district lines, just as it is aware
of age, economic status, religious and political persuasion, and a variety of other
demographic factors. That sort of race consciousness does not lead inevitably to
impermissible race discrimination.... [W]hen members of a racial group live
together in one community, a reapportionment plan that concentrates members of
the group in one district and excludes them from others may reflect wholly
legitimate purposes. The district lines may be drawn, for example, to provide for
compact districts of contiguous territory, or to maintain the integrity of political
subdivisions.
509 U.S. at 646 (slip op. at 14).
You may even intentionally create majority- minority districts, as a California state court
did, see DeWitt v. Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994), summarily affd 515 U.S. 1170
(1995), without violating the Equal Protection clause. Bush v. Vera, 517 U.S. 952, , 116 S.
Ct. at 1951 (1996).
2. Avoid Drawing a Racial Gerrymander
But, when a state creates a majority- minority district without regard to "traditional
districting principles," the district will be subject to strict scrutiny and probably thrown out.
Shaw v. Reno, 509 U.S. 630 (1993); Miller v. Johnson, 515 U.S. 900 (1995); Bush v. Vera, 517
U.S. 952 (1996). If you want your majority- minority districts to stand up in court, you would
best avoid drawing a racial gerrymander.
a. Beware of Bizarre Shapes
The first step toward avoiding drawing a racial gerrymander is to beware of bizarre
shapes.
Greensboro
Mash: in-Salem
Durham
High Point
F wtao
North Carolina
Congressional District 12 - 1992
The 12th Congressional District in North Carolina, as put into place for the 1992 election,
was one of the most egregious racial gerrymanders ever drawn. The "I -85" district, stretching
160 miles across the State, for much of its length no wider than the freeway, but reaching out to
pick up pockets of African Americans all along the way. It was first attacked as a partisan
gerrymander. That attack failed. Pope v. Blue, 809 F. Supp. 392 (W.D. N.C. 1992), aff'd mem.
506 U.S. 801 (1992).
Next, it was attacked as a racial gerrymander. That attack failed in the district court, Shaw
v. Barr, 809 F. Supp. 392 (W.D. N.C. 1992), but the legal theory on which it was based was
endorsed by the Supreme Court in Shaw v. Reno, 509 U.S. 630 (1993).
As Justice O'Connor said, "[R]eapportionment is one area in which appearances do
matter." 509 U.S. at 647 (slip op. at 15).
A reapportionment plan that includes in one district individuals who belong to the
same race, but who are otherwise widely separated by geographical and political
boundaries, and who may have little in common with one another but the color of
their skin, bears an uncomfortable resemblance to political apartheid. It reinforces
the perception that members of the same racial group — regardless of their age,
education, economic status, or the community in which they live —think alike,
share the same political interests, and will prefer the same candidates at the polls .
... By perpetuating such notions, a racial gerrymander may exacerbate the very
patterns of racial bloc voting that majority- minority districting is sometimes said
to counteract.
509 U.S. at 647 -48 (slip op. at 15 -16).
The Court said that a redistricting plan that is so bizarre on its face that it is unexplainable
on grounds other than race demands the same strict scrutiny under the Equal Protection Clause
given to other state laws that classify citizens by race. 509 U.S. at 644 (slip op. at 12).
In Bush v. Vera, Justice O'Connor further observed that:
[B]izarre shape and noncompactness cause constitutional harm insofar as they
convey the message that political identity is, or should be, predominantly racial.. .
. [C]utting across pre- existing precinct lines and other natural or traditional
divisions, is not merely evidentially significant; it is part of the constitutional
problem insofar as it disrupts nonracial bases of identity and thus intensifies the
emphasis on race.
517 U.S. 952, ,116 S. Ct. at 1962 (1996).
b. Draw Districts that are Reasonably Compact
To avoid districts with bizarre shapes, you will want to draw districts that are compact.
How compact must they be? Reasonably compact. As Justice O'Connor said in Bush v. Vera,
517 U.S. 952 (1996):
A § 2 district that is reasonably compact and regular, taking into account
traditional districting principles such as maintaining communities of interest and
traditional boundaries, may pass strict scrutiny without having to defeat rival
compact districts designed by plaintiffs' experts in endless "beauty contests."
517 U.S. at , 116 S. Ct. at 1960.
To give you some idea of what the lower federal courts have considered to be
"reasonably compact," there follows a series of "before and after" pictures of congressional
districts first used in the 1992 election and then struck down, and the districts approved by the
federal courts to replace them. They come from the states of Texas, Louisiana, Florida, and
North Carolina.
Texas
Congressional District 30
1992 1996
A
1
IIIIIIP
404
OW
Congressional District 18
1992 1996
mit ,I4:0:1;__
.. i �
Texas
Congressional District 29
1992 1996
•
f
' 111011010
Louisiana
Congressional District 4
1992 1996
ac of
Monroe
Alexandria
•
att. Rory
La errehe
L<ke rles
Florida
Congressional District 3
1992 1996
•
€�aytona
Ocala Beach
Sanford
Orlando
North Carolina
Congressional District 12
1992 1998
Greensboro
Ai b�Rn
Y1 insio rr•'alem
Oufiam
High Faint
4S OSEC2019ff
CAadote GITOON
North Carolina
2000
:Hrnixe�;
a3a9�.i Seise
x:r Noce
fiw.o7M
c. Beware of Making Race Your Dominant Motive
Even if the shapes of your districts are not bizarre, and even if they are reasonably
compact, you may nevertheless run afoul of the Equal Protection Clause if race was your
dominant motive for drawing the lines the way you did.
Atlanta
Augusta
Savannah
Georgia
Congressional District 11 - 1992
Georgia's 11th Congressional District, as enacted in 1992, stretched from Atlanta to the
sea, but not in the 60- mile -wide swath cleared by General Sherman. Rather, it began with a small
pocket of Blacks in Atlanta, spread out to pick up the sparsely populated rural areas, and
narrowed considerably to pick up more pockets of Blacks in Augusta and Savannah, 260 miles
away. Miller v. Johnson, 515 U.S. 900, 908 -09 (1995). It had not been included in either of the
first two plans enacted by the Legislature in 1991 and sent to the Department of Justice for
preclearance. Both of those plans had included two Black- majority districts. The Justice
Department had rejected them for failure to create a third. This rejection had occurred
notwithstanding that the 1980 plan had included only one Black- majority district and that there
was no evidence the Georgia Legislature had intended to discriminate against Blacks in drawing
the 1991 plans. The new district in the 1992 plan was drawn to meet the Department's
requirement that the State maximize the number of Black- majority districts, and it's inclusion in
the third plan was sufficient to obtain preclearance from the Justice Department. 515 U.S. at 906-
09.
In Miller v. Johnson, 515 U.S. 900 (1995), the Supreme Court shifted its focus away from
the shape of the district, saying that plaintiffs challenging a racial gerrymander need not prove
that a district has a bizarre shape. The shape of the district is relevant, not because bizarreness is
a necessary element of the constitutional wrong, but because it may be persuasive circumstantial
evidence that race was the Legislature's dominant motive in drawing district lines. Where district
lines are not so bizarre, plaintiffs may rely on other evidence to establish race -based redistricting.
515 U.S. at 912 -13.
In Georgia's case, the Legislature's correspondence with the Justice Department
throughout the preclearance process demonstrated that race was the dominant factor the
Legislature considered when drawing the 11th District. The Court found that the Legislature had
considered "traditional race - neutral districting principles," such as compactness, contiguity, and
respect for political subdivisions and communities of interest, but that those principles had been
subordinated to race in order to give the 1 lth District a Black majority. 515 U.S. at 919 -20. The
Court subjected the district to strict scrutiny and struck it down. 515 U.S. at 920 -27.
a. Beware of Using Race as a Proxy for Political Affiliation
If you want to argue that partisan politics, not race, was your dominant motive in drawing
district lines, beware of using racial data as a proxy for political affiliation. The Texas
Legislature tried that in the 1990s, and three of its congressional districts were struck down.
Congressional District Congressional District 18 Congressional District 29
30
•
Iy >r
.
Under the 1990 reapportionment of seats in Congress, Texas was entitled to three additional
congressional districts. The Texas Legislature decided to draw one new Hispanic- majority
district in South Texas, one new African American majority district in Dallas County (District
30), and one new Hispanic- majority district in the Houston area (District 29). In addition, the
Legislature decided to reconfigure a district in the Houston area (District 18) to increase its
percentage of African Americans. The Texas Legislature had developed a state -of -the -art
computer system that allowed it to draw congressional districts using racial data at the census
block level. Working closely with the Texas congressional delegation and various members of
the Legislature who intended to run for Congress, the Texas Legislature took great care to draw
three new districts and reconfigure a district that the chosen candidates could win.
Plaintiffs challenged 24 of the State's 30 congressional districts as racial gerrymanders.
The federal district court struck down three, Districts 18, 29, and 30, Vera v. Richards, 861 F.
Supp. 1304 (S.D. Tex. 1994). On appeal, the State argued that the bizarre shape of District 30 in
Dallas County was explained by the drafters' desire to unite urban communities of interest and
that the bizarre shape of all three districts was attributable to the Legislature's efforts to protect
incumbents of old districts while designing the new ones. The Supreme Court upheld the district
court's finding to the contrary, holding that race was the predominant factor. The Legislature's
redistricting system had election data and other political information at the precinct level, but it
had race data down to the block level. The district lines closely tracked the racial block data. The
Court found that, to the extent there was political manipulation, race was used as a proxy for
political affiliation. It was race that predominated. Bush v. Vera, 517 U.S. 952, , 116 S. Ct.
1941, 1959 -61 (1996). The Court subjected the districts to strict scrutiny and struck them down.
517 U.S. at , 116 S.Ct.at1961 -62.
b. Follow Traditional Districting Principles
As the preceding discussion shows, one way to avoid drawing a racial gerrymander that
runs afoul of the Equal Protection Clause is to follow traditional districting principles. What are
"traditional districting principles" and where do they come from?
The Supreme Court first used the term "traditional districting principles" in the 1993
North Carolina case, mentioning "compactness, contiguity, and respect for political
subdivisions" as examples. Shaw v. Reno, 509 U.S. 630 at 647 (slip op. at 15). Later, in the 1995
Georgia case, it added "respect for ... communities defined by actual shared interests." Miller v.
Johnson, 515 U.S. 900, 919 -20 (1995). In the Texas case, it added "maintaining ... traditional
boundaries." Bush v. Vera, 517 U.S. 952, , 116 S. Ct. at 1960 (1996). And in the 1997
Georgia case, it added "maintaining . . . district cores" and "[p]rotecting incumbents from
contests with each other." Abrams v. Johnson, 117 S. Ct. 1925, (slip op. at 8 -9).
These "traditional districting principles" are not found in the U.S. Constitution, but rather
in the constitutions, laws, and resolutions of the several states. The districting principles used by
each state in the 1990s are shown in table 5 and appendix G of NCSL's book, Redistricting Law
2000. The Supreme Court has now mentioned all of the most common districting principles used
by the states, but there are a number of others used only by a few states.
Before drawing any plan for your state, you will want to become familiar with the
requirements of your own constitution and consider whether to adopt additional districting
principles to govern your plans.
2. Strict Scrutiny is Almost Always Fatal
If you do choose to subordinate traditional districting principles to race in order to create
a majority- minority district, be aware that it is unlikely your district will stand up in court. A
racial gerrymander is subject to strict scrutiny under the Equal Protection Clause of the 14th
Amendment. Shaw v. Reno, 509 U.S. 630 (1993). To survive strict scrutiny, a racial
classification must be narrowly tailored to serve a compelling governmental interest. Id.
a. A Compelling Governmental Interest
What may qualify as a "compelling governmental interest "? So far, the Supreme Court
has considered remedying past discrimination, avoiding retrogression in violation of Section 5 of
the Voting Rights Act, and avoiding a violation of Section 2 of the Voting Rights Act to be
possible compelling governmental interests.
b. Narrowly Tailored to Achieve that Interest
During the 1990s, however, no racial gerrymander was explicitly found by the Supreme
Court to have been sufficiently narrowly tailored to achieve any of these compelling
governmental interests. See, e.g., Shaw v. Reno, 509 U.S. 630 (1993); Miller v. Johnson, 515
U.S. 900 (1995); Bush v. Vera, 517 U.S. 952 (1996); contra, King v. State Board of Elections,
979 F. Supp. 582 (N.D. Ill. 1996), vacated mem. sub nom. King v. Illinois Board of Elections,
117 S. Ct. 429, on remand 979 F. Supp. 619 (N.D. I11. 1997), aff'd mem. 118 S. Ct. 877 (1998).
Don't assume that yours will be the first.
(1) Remedying Past Discrimination
Remedying past discrimination has traditionally been a justification for a governmental
entity to adopt a racial classification. See, e.g., Richmond v. J.A. Crosun Co., 488 U.S. 469, 491-
93 (1989); Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 280 -82 (1986). In the context of
redistricting, this justification has not yet proved sufficient. In Shaw v. Reno, the Supreme Court
warned that the State must have "a strong basis in evidence for concluding that remedial action is
necessary," 509 U.S. 630, 656(slip op. at 24), and that "race -based districting, as a response to
racially polarized voting, is constitutionally permissible only when the State employs sound
districting principles, and only when the affected racial group's residential patterns afford the
opportunity of creating districts in which they will be in the majority." 509 U.S. at 657 (slip op.
at 25) (internal citations and quotations omitted). North Carolina failed to meet this standard, and
its 12 congressional district was struck down. Shaw v. Hunt, 517 U.S. 899, 116 S. Ct. 1894
(1996).
In Bush v. Vera, 517 U.S. 952 (1996), the Court found that the district lines drawn by the
Texas Legislature were not justified as an attempt to remedy the effects of past discrimination,
since there was no evidence of present discrimination other than racially polarized voting.
(2) Avoiding Retrogression Under Section 5
The Supreme Court has assumed, without deciding, that avoiding retrogression in
violation of Section 5 of the Voting Rights Act would be a compelling governmental interest.
In Shaw v. Reno, 509 U.S. 630 (1993), the Court anticipated that the State might assert on
remand that complying with Section 5 was a compelling governmental interest that justified the
creation of District 12. But the Court warned that "A reapportionment plan would not be
narrowly tailored to the goal of avoiding retrogression if the State went beyond what was
reasonably necessary to avoid retrogression." 509 U.S. at 655 (slip op. at 23). In Shaw v. Hunt,
517 U.S. 899, 116 S. Ct. 1894 (1996), the Court noted that, before the 1990 census, North
Carolina had had no Black- majority districts. The first plan drawn by the State after the 1990
census had included one Black- majority district, not District 12. The Court found that adding
District 12 as a second Black- majority district was not necessary in order to avoid retrogression.
517 U.S. at , 116 S. Ct. at 1904. Since the 12 district was not narrowly tailored to serve the
State's interest in complying with Section 5, or any other compelling state interest, the Court
struck it down.
In Miller v. Johnson, 515 U.S. 900 (1995), the Court found that it was not necessary for
the Georgia Legislature to draw a third Black - majority district in order to comply with Section 5.
The plan for the 1980s had included one Black- majority district. The first two previous plans
enacted by the Georgia Legislature after the 1990 census had included two Black - majority
districts, thus improving on the status quo. Adding a third Black- majority district was not
necessary and thus not narrowly tailored to achieve the State's interest in complying with Section
5. 515 U.S. at 920 -27.
On remand, the federal district court first allowed the Georgia Legislature an opportunity
to draw a new plan. When the Legislature failed to agree on a plan, the district court found that
Georgia's Second Congressional District was also an unconstitutional racial gerrymander.
Johnson v. Miller, 922 F. Supp. 1552 (S.D. Ga., Dec. 1, 1995). The district court reasoned that,
since the enacted plan was the product of improper pressure imposed by the Justice Department,
it did not embody the Legislature's own policy choices and therefore should not be used as the
basis for the court's remedial plan. The district court then imposed an entirely new plan with
only one Black- majority district, District 4. Johnson v. Miller, 922 F. Supp. 1556 (S.D. Ga., Dec.
13, 1995).
Georgia Congressional District 4 - 1996
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The court's plan was used for the 1996 election, but the district court's decision was appealed to
the Supreme Court on the ground that the court failed to give due deference to the Legislature's
policy choices.
In Abrams v. Johnson, 117 S. Ct. 1925 (1997), the Supreme Court affirmed. It found that
neither the Legislature's 1991 plan, rejected by the Justice Department because it contained only
two Black - majority districts, nor the 1992 plan, with three Black - majority districts, embodied the
Legislature's own policy choices because of the improper pressure imposed by the Justice
Department. It found the district court was within its discretion in deciding it could not draw two
Black- majority districts without engaging in racial gerrymandering. Since the last valid plan, the
1982 plan, contained only one Black- majority district, the district court's one - district plan did
not retrogress in violation of Section 5 of the Voting Rights Act.
(3) Avoiding a Violation of Section 2
In Shaw v. Reno, 509 U.S. 630 (1993), the Supreme Court noted that the State of North
Carolina had asserted that a race -based district was necessary to comply with Section 2 of the
Voting Rights Act. The Court left the arguments on that question open for consideration on
remand. 509 U.S. at 655 -56 (slip op. at 23 -24).
When the case returned to the Court for a second time, after the district court had found
the plan to be narrowly tailored to comply with both Section 2 and Section 5, Shaw v. Hunt, 861
F. Supp. 408 (E.D. N.C. 1994), the Supreme Court again reversed the district court.
The Court said that, to make out a violation of section 2, a plaintiff must show that a
minority population is "sufficiently large and geographically compact to constitute a majority in
a single member district." The Court noted that District 12 had been called "the least
geographically compact district in the Nation." Shaw v. Hunt, 517 U.S. 899, , 116 S. Ct.
1894, 1901 (1996). There may have been a place in North Carolina where a geographically
compact minority population existed, but the shape of District 12 showed that District 12 was not
that place. Since District 12 did not encompass any "geographically compact" minority
population, there was no legal wrong for which it could be said to provide the remedy. 517 U.S.
at , 116 S. Ct. 1906.
In the Texas case, Bush v. Vera, 517 U.S. 952, 116 S. Ct. 1894 (1996), the Court again
assumed without deciding that complying with Section 2 was a compelling state interest, 517
U.S. at , 116 S. Ct. at 1960, but found that the districts were not narrowly tailored to comply
with Section 2 because all three districts were bizarrely shaped and far from compact as a result
of racial manipulation. The court pointed out that, if the minority population is not sufficiently
compact to draw a compact district, there is no violation of Section 2; if the minority population
is sufficiently compact to draw a compact district, nothing in Section 2 requires the creation of a
race -based district that is far from compact. 517 U.S. at , 116 S. Ct. at 1961.
During the 1990s, one racial gerrymander did survive strict scrutiny: the Fourth
Congressional District of Illinois, the "ear muff" district in Chicago. It was found necessary in
order to achieve the compelling state interest of remedying a potential violation of or achieving
compliance with Section 2 of the Voting Rights Act.
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Following the Supreme Court's decision in Shaw v. Reno, 509 U.S. 630 (1993), plaintiffs
in Illinois attacked District 4. The district had been drawn by a federal district court to create an
Hispanic- voting- majority district without diminishing the African American voting strength in
three adjacent districts with African American majorities. When forced to review the prior
decision in the light of Shaw v. Reno and Miller v. Johnson, a different panel of the district court
found that the compactness requirement of Thornburg v. Gingles applied only in determining
whether a Section 2 violation had occurred, not in drawing a district to remedy the violation. It
found that the ear muff shape was necessary in order to provide Hispanics with the
representation that their population warranted without causing retrogression in African American
representation. It held that the Fourth District survived strict scrutiny. King v. State Board of
Elections, 979 F. Supp. 582 (N.D. I11. 1996).
Plaintiffs appealed. The Supreme Court vacated the judgment and remanded to the
district court for further consideration in light of its decisions in the North Carolina and Texas
cases. King v. Illinois Board of Elections, 117 S. Ct. 429 (1996) (mem.).
On remand, the district court found that the Fourth District had been narrowly tailored to
achieve the compelling state interest of remedying a potential violation of or achieving
compliance with Section 2 and, therefore, did not violate the Equal Protection Clause. King v.
State Board of Elections, 979 F. Supp. 619 (N.D. Ill. 1997), aff'd mem. 118 S. Ct. 877 (1998).
II. Don't Go Overboard with Partisan Gerrymandering
A. Partisan Gerrymandering is a Justiciable Issue
The Voting Rights Act does not apply to conduct that has the effect of diluting the voting
strength of partisan minorities, such as Republicans in some states and Democrats in others.
Partisan minorities must look for protection to the Equal Protection Clause of the 14th
Amendment.
Modern technology, while making it practicable to draw districts that are mathematically
equal, has also allowed the majority to draw districts that pack and fracture the partisan minority
in such a way as to minimize the possibility of their ever becoming a majority.
While the federal courts have not yet developed criteria for judging whether a
gerrymandered redistricting plan is so unfair as to deny a partisan minority the equal protection
of the laws, the Supreme Court has held, in Davis v. Bandemer, 478 U.S. 109 (1986), that
partisan gerrymandering is a justiciable issue. What this means is that you must be prepared to
defend an action in federal court challenging your redistricting plans on the ground that they
unconstitutionally discriminate against the partisan minority.
Davis v. Bandemer involved a legislative redistricting plan adopted by the Indiana
Legislature in 1981. Republicans controlled both houses. Before the 1982 election, several
Indiana Democrats attacked the plan in federal court for denying them, as Democrats, the equal
protection of the laws.
The plan had an overall range of 1.15 percent for the Senate districts and 1.05 percent for
the House districts, well within equal - population requirements. The plan's treatment of racial and
language minorities met the no- retrogression test of the Voting Rights Act.
The Senate was all single- member districts, but the House included nine double- member
districts and seven triple- member districts, in addition to 61 that were single- member. The lower
court found the multimember districts were "suspect in terms of compactness." Many of the
districts were "unwieldy shapes." County and city lines were not consistently followed, although
township lines generally were. Various House districts combined urban and suburban or rural
voters with dissimilar interests. Democrats were packed into districts with large Democratic
majorities, and fractured into districts where Republicans had a safe but not excessive majority.
The Speaker of the House testified that the purpose of the multimember districts was "to save as
many incumbent Republicans as possible."
At the 1982 election, held under the challenged plan, Democratic candidates for the
Senate received 53.1 percent of the vote statewide and won 13 of the 25 seats up for election.
(Twenty -five other Senate seats were not up for election.) Democratic candidates for the House
received 51.9 percent of the vote statewide, but won only 43 of 100 seats. In two groups of
multimember House districts, Democratic candidates received 46.6 percent of the vote, but won
only 3 of 21 seats.
The Supreme Court, in an opinion by Justice White, held that the issue of fair
representation for Indiana Democrats was justiciable, but that the Democrats had failed to prove
that the plan denied them fair representation. The Court denied that the Constitution "requires
proportional representation or that legislatures in reapportioning must draw district lines to come
as near as possible to allocating seats to the contending parties in proportion to what their
anticipated statewide vote will be," since, if the vote in all districts were proportional to the vote
statewide, the minority would win no seats at all. Further, if districts were drawn to give each
party its proportional share of safe seats, the minority in each district would go unrepresented.
Justice White concluded that:
[A] group's electoral power is not unconstitutionally diminished by the simple
fact of an apportionment scheme that makes winning elections more difficult, and
a failure of proportional representation alone does not constitute impermissible
discrimination under the Equal Protection Clause.
... Rather, unconstitutional discrimination occurs only when the electoral system
is arranged in a manner that will consistently degrade a voter's or a group of
voters' influence on the political process as a whole. (Emphasis added.)
. . . Such a finding of unconstitutionality must be supported by evidence of
continued frustration of the will of a majority of the voters or effective denial to a
minority of voters of a fair chance to influence the political process.
478 U.S. at 132 -33.
Merely showing that the minority is likely to lose elections held under the plan is not
enough. As the Court pointed out, "the power to influence the political process is not limited to
winning elections.... We cannot presume ... , without actual proof to the contrary, that the
candidate elected will entirely ignore the interests of those voters [who did not vote for him or
her]." 478 U.S. at 132.
B. Can It Be Proved?
How do the members of a major political party prove that they do not have "a fair chance
to influence the political process ?"
When California Republicans attacked the partisan gerrymander enacted by the
Democratic legislature to govern congressional redistricting, the Supreme Court summarily
affirmed the decision of a three judge court dismissing the suit on the ground that the
Republicans had failed to show that they had been denied a fair chance to influence the political
process. Badham v. March Fong Eu, 694 F. Supp. 664 (N.D. Cal. 1988), aff'd mem., 488 U.S.
1024 (1989). As the lower court said:
Specifically, there are no factual allegations regarding California Republicans'
role in `the political process as a whole.' [citation omitted] There are no
allegations that California Republicans have been `shut out' of the political
process, nor are there allegations that anyone has ever interfered with Republican
registration, organizing, voting, fundraising, or campaigning. Republicans remain
free to speak out on issues of public concern; plaintiffs do not allege that there
are, or have ever been, any impediments to their full participation in the
`uninhibited, robust, and wide -open' public debate on which our political system
relies. [citation omitted]
694 F. Supp. at 670.
Further, the Court took judicial notice that Republicans held 40 percent of the congressional
seats and had a Republican governor and United States senator.
Given also the fact that a recent former Republican governor of California has for
seven years been President of the United States, we see the fulcrum of political
power to be such as to belie any attempt of plaintiffs to claim that they are bereft
of the ability to exercise potent power in `the political process as a whole' because
of the paralysis of an unfair gerrymander.
694 F. Supp. at 672.
During the 1990s, the Virginia state house plan and the North Carolina congressional
plan were attacked as partisan political gerrymanders, but both attacks failed. Republican Party
of Virginia v. Wilder, 774 F. Supp. 400 (W.D. Va. 1991); Pope v. Blue, 809 F. Supp. 392 (W.D.
N.C. 1992), aff'd mem. 506 U.S. 801 (1992).
In a democracy, the majority does not need to have the leaders of the opposition shot, or
jailed, or banished from the country, or even silenced. They do not need to shut the minority out
of the political process —they simply out vote them.
If the members of the majority party in your State are prepared to let the minority party
participate fully in the process of drawing redistricting plans, and simply out vote them when
necessary, your State should be prepared to withstand a challenge that the plans
unconstitutionally discriminate against the partisan minority.
V. Prepare to Defend Your Plan in Both State and Federal Courts
After the 1990 census, 20 states had suits in state courts concerning redistricting plans; 28
states had suits in federal court. Eleven states had suits in both state and federal courts on the
same plan. New York had cases in four different federal courts and three different state courts.
After the 2000 census, you had better be prepared to defend your plan in both state and
federal courts at the same time. How should all this parallel litigation be coordinated?
A. Federal Court Must Defer to State Court
In a 1965 case, Scott v. Germano, 381 U.S. 407 (per curiam), the Supreme Court
recognized that state courts have a significant role in redistricting and ordered the federal district
court to defer action until the state authorities, including the state courts, had had an opportunity
to redistrict. In the 1990s, some federal district courts properly deferred action pending the
outcome of state proceedings. See, e.g., Members of the Cal. Democratic Congressional
Delegation v. Eu, 790 F. Supp. 925 (N.D. Cal. 1992), rev 'd, Benavidez v. Eu, 34 F.3d 825 (9th
Cir. 1994) (deferral until conclusion of state proceedings was proper; dismissal "went too far "),
but others did not. See, e.g., Puerto Rican Legal Defense and Education Fund v. Gantt, 796 F.
Supp. 677 (E.D. N.Y. 1992), injunction stayed mem. sub nom. Gantt v. Skelos, 504 U.S. 902
(1992).
In Minnesota, after a state court had issued a preliminary order correcting the technical
errors in the legislative plan enacted by the Legislature, the federal district court enjoined the
state court from issuing its final plan. Emison v. Growe, Order, No. 4 -91 -202 (D. Minn. Dec. 5,
1991). The U.S. Supreme Court summarily vacated the injunction a month later. Cot/ow v.
Emison, 502 U.S. 1022 (1992) (mem.). After the state court issued its final order on the
legislative plan and had held its final hearing before adopting a congressional plan, the federal
court threw out the state court's legislative plan, issued one of its own, and enjoined the secretary
of state from implementing any congressional plan other than the one issued by the federal court.
Emison v. Growe, 782 F. Supp. 427 (D. Minn. 1992). The federal court's order regarding the
legislative plan was stayed pending appeal, Growe v. Emison, No. 91 -1420 (Mar. 11, 1992)
(Blackmun, J., in chambers), but the congressional plan was allowed to go into effect for the
1992 election. After the election, the Supreme Court reversed.
In Growe v. Emison, 507 U.S. 25 (1993), the Court held that the district court had erred in
not deferring to the state court. The Court repeated its words from several previous cases that
"reapportionment is primarily the duty and responsibility of the State through its legislature or
other body, rather than of a federal court." 507 U.S. at 34. As the court said:
Minnesota can have only one set of legislative districts, and the primacy of the
State in designing those districts compels a federal court to defer. 507 U.S. at 35.
Rather than coming to the rescue of the Minnesota electoral process, the federal court had raced
to beat the state court to the finish line, even tripping it along the way. 507 U.S. at 37. It would
have been appropriate for the federal court to have established a deadline by which, if the state
court had not acted, the federal court would proceed. 507 U.S. at 34. However, the Supreme
Court found that the state court had been both willing and able to adopt a congressional plan in
time for the elections. Id. The Supreme Court reversed the federal court's decision in its entirety,
allowing the state court's congressional plan to become effective for the 1994 election.
B. Federal Court May Not Directly Review State Court Decision
Once a state court has completed its work, the Full Faith and Credit Act, 28 U.S.C. §
1738, requires a federal court to give the state court's judgment the same effect as it would have
in the State's own courts. Parsons Steel Inc. v. First Ala. Bank, 474 U.S. 518, 525 (1986). A
federal district court may not simply modify or reverse the state court's judgment. That may be
done only by the U.S. Supreme Court on appeal from or writ of certiorari to the state's highest
court. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460
U.S. 462 (1983). This principle is now known as the "Rooker- Feldman doctrine." See also,
Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U.S. 281 (1970).
C. Plan Approved by State Court Subject to Collateral Attack in Federal Court
Although the state court's judgment on a redistricting plan is not subject to review or
direct attack in federal district court, the plan remains subject to collateral attack. That is, it may
be attacked in federal court for different reasons or by different parties. See, e.g., Johnson v.
DeGrandy, 512 U.S. 997, slip op. at 6 -8 (1994); Nerch v. Mitchell, No. 3:CV -92 -0095, (M.D. Pa.
Aug. 13, 1992) (per curiam).
The judicial doctrines that establish limits on those collateral attacks are called res
judicata and collateral estoppel. Res judicata translates literally as "the matter has been decided."
It means that a decision by a court of competent jurisdiction on a matter in dispute between two
parties is forever binding on those parties and any others who were working with ( "in privity
with ") them. Res judicata applies when the parties are the same, the cause of action is the same,
and the factual issues are the same. If the parties and the issues are the same, but the cause of
action is different, the term "collateral estoppel" is used to describe the same concept.
What this means for those who draw redistricting plans is that, if an issue was not raised
and decided in state court, it is open for decision in a federal court. It also means that, if parties
raise in federal court the same issue raised by different parties in state court, the federal court
may come to a different conclusion.
D. Federal Court Must Defer To State Remedies
After a federal court has determined that a state redistricting plan violates federal law, it
will usually allow the state authorities a reasonable time to conform the plan to federal law. In
North Carolina, Cromartie v. Hunt, 34 F. Supp. 1029 (E.D. N.C. 1998), rev'd, Hunt v.
Cromartie, 526 U.S. 541 (1999); Georgia, Johnson v. Miller, 864 F. Supp. 1354 (S.D. Ga. 1994),
aff'd sub nom. Miller v. Johnson, 515 U.S. 900 (1995); and Texas, Vera v. Richards, 861 F.
Supp. 1304 (S.D. Tex. 1994), aff'd sub nom. Bush v. Vera, 517 U.S. 952, 116 S. Ct. 1941 (1996),
the federal district court that had struck down a congressional plan as a racial gerrymander
allowed the legislature an opportunity to correct the plan at its next session. Only when the
Georgia, Johnson v. Miller, 922 F. Supp. 1552 (S.D. Ga. 1995) and 922 F. Supp. 1556 (S.D. Ga.
1995), aff'd sub nom. Abrams v. Johnson, 117 S. Ct. 1925 (1997), and Texas, Vera v. Bush, 933
F. Supp. 1341 (S.D. Tex. 1996); 980 F. Supp. 251 (S.D. Tex. 1997); 980 F. Supp. 254 (S.D. Tex.
1997), legislatures had failed to enact a corrected plan did the federal courts in those states
impose plans of their own. In contrast, however, the federal district court in Florida imposed a
legislative plan of its own within three hours of having struck down the plan enacted by the
Legislature and approved by the Florida Supreme Court. The court's order imposing its plan was
immediately stayed by the U.S. Supreme Court, Wetherell v. DeGrandy, 505 U.S. 1232 (1992)
(mem.), and eventually reversed on the merits without comment on the conduct of the district
court in so hastily imposing a remedy. See Johnson v. DeGrandy, 512 U.S. 997 (1994).
If the state's legislative and judicial branches fail to conform a redistricting plan to
federal law after having been given a reasonable opportunity to do so, a federal court may
impose its own remedy. Even then, however, the federal court must follow discernible state
redistricting policy to the fullest extent possible. Upham v. Seamon, 456 U.S. 37 (1982). The
federal court must adopt a plan that remedies the violations but incorporates as much of the
state's redistricting law as possible. Upham v. Seamon, 456 U.S. at 43; White v. Weiser, 412 U.S.
783, 793 -97 (1973); Whitcomb v. Chavis, 403 U.S. 124, 160 -61 (1971). See also Abrams v.
Johnson, 117 S. Ct. 1925 (1997).
E. Attorney General May Represent State in Federal Court
Although the U.S. Supreme Court has been unanimous in holding that a federal court
must defer to a state court that is in the process of redistricting, Growe v. Emison, 507 U.S. 25
(1993), in Lawyer v. Department of Justice it split 5 -4 on the question of what procedure a
federal court should follow when deferring to a state legislature whose redistricting plan has
come under attack. 117 S. Ct. 2186 (1997).
Florida Senate District 21 (Tampa Bay) had been challenged in federal court on the
ground that it violated the Equal Protection Clause of the U.S. Constitution. The district had been
drawn by the Florida Legislature; the Justice Department had refused to preclear it because it
failed to create a majority- minority district in the area; the governor and legislative leaders had
refused to call a special session to revise the plan; the state Supreme Court, performing a review
mandated by the Florida Constitution before the plan could be put into effect, had revised the
plan to accommodate the Justice Department's objection; and the plan had been used for the
1992 and 1994 elections. A suit had been filed in April 1994, and a settlement agreement was
presented for court approval in November 1995. The Florida attorney general appeared
representing the State of Florida, and lawyers for the president of the Senate and the speaker of
the House appeared representing their respective bodies. All parties but two supported the
settlement agreement, and in March 1996 the district court approved it. Appellants argued that
the district court had erred in not affording the Legislature a reasonable opportunity to adopt a
substitute plan of its own. The Supreme Court did not agree.
Justice Stevens, writing for the majority, found that action by the Legislature was not
necessary. He found that the State was properly represented in the litigation by the attorney
general and that the attorney general had broad discretion to settle it without either a trial or the
passage of legislation. 117 S. Ct. 2186, slip op. at 8 -11.
Justice Scalia, writing for the four dissenters, argued that:
The "opportunity to apportion" that our case law requires the state legislature to
be afforded is an opportunity to apportion through normal legislative processes,
not through courthouse negotiations attended by one member of each House,
followed by a court decree.
117 S. Ct. 2186, slip op. at 7.
Now that it is clear that federal courts must defer to redistricting proceedings in a state
court, legislatures will want to be prepared to defend their plans in state court. Once the state
court proceedings are concluded, and even while they are in progress, legislatures must be
prepared to defend the plans in federal court as well. In both courts, legislatures will want to
remain on good terms with their attorney general.
Table of Authorities
Cases:
Abrams v. Johnson, 117 S. Ct. 1925 (1997) 1 2 3 4
Anne Arundel County Republican Cent. Committee v. State Administrative Bd. of Election Laws,
781 F. Supp. 394 (D. Md. 1991) 1
Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U.S. 281 (1970) 1
Bacon v. Carlin, 575 F. Supp. 763 (D. Kan. 1983), affd 466 U.S. 966 (1984) 1
Badham v. March Fong Eu, 694 F. Supp. 664 (N.D. Cal. 1988), affd mem., 488 U.S. 1024
(1989) 1
Beer v. United States, 425 U.S. 130 (1976) 1
Board of Estimate v. Morris, 489 U.S. 688 (1989) 1
Brown v. Thomson, 462 U.S. 835 (1983) 1 2
Burns v. Richardson, 384 U.S. 73 (1966) 1
Bush v. Vera, 517 U.S. 952 (1996) 1 2 3 4 5 6 7 8
Carstens v. Lamm, 543 F. Supp. 68 (D. Colo. 1982) 1 2
Chapman v. Meier, 420 U.S. 1 (1975) 1
Citizens Committee for Fair Congressional Redistricting, Inc. v. Tawes, 253 F. Supp. 731 (D.
Md. 1966) affd mem. sub nom. Alton v. Tawes, 384 U.S. 315 (1966) 1
City of Lockhart v. U.S., 460 U.S. 125 (1985) 1
City of Mobile v. Bolden, 446 U.S. 55 (1980) 1
Connor v. Finch, 431 U.S. 407 (1977) 1
Cotlow v. Emison, 502 U.S. 1022 (1992) (mem.) 1
Cromartie v. Hunt, 34 F. Supp. 1029 (E.D. N.C. 1998), rev'd, Hunt v. Cromartie, 526 U.S. 541
(1999) 1
D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983) 1
David v. Cahill, 342 F. Supp. 463 (D. N.J. 1972) 1
Davis v. Bandemer, 478 U.S. 109 (1986) 1 2
Dept. of Commerce v. Montana, 503 U.S. 542 (1992) 1
Dept. of Commerce v. U.S. House of Representatives, 525 U.S. 316 (1999) 1
DeWitt v. Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994), summarily aff'd 515 U.S. 1170 (1995)
1
Dunnell v. Austin, 344 F. Supp. 210 (E.D. Mich. 1972) 1
Emison v. Growe, 782 F. Supp. 427 (D. Minn. 1992), rev'd, Growe v. Emison, 507 U.S. 25 (1993
1
Emison v. Growe, Order, No. 4 -91 -202 (D. Minn. Dec. 5, 1991), vacated sub nom. Cotlow v.
Emison, 502 U.S. 1022 (1992) 1
Federation for American Immigration Reform (FAIR) v. Klutznick, 486 F. Supp. 564 (D.D.C.
1980, appeal dismissed, 447 U.S. 916 (1980) 1
Franklin v. Massachusetts, 505 U.S. 788 (1992) 1
Gaffney v. Cummings, 412 U.S. 735 (1973) 1
Gantt v. Skelos, 504 U.S. 902 (1992) 1
Garza v. County of Los Angeles, No. CV 88 -5143 KN (Ex) (C.D. Cal. June 4, 1990) 1
Growe v. Emison, 507 U.S. 25 (1993) 1 2 3
Hays v. Louisiana, 936 F. Supp. 360 (W.D. La. 1996) 1
Johnson v. DeGrandy, 512 U.S. 997 (1994) 1 2 3
Johnson v. Miller, 864 F. Supp. 1354 (S.D. Ga. 1994), aff'd sub nom. Miller v. Johnson, 515
U.S. 900 (1995) 1 2
Karcher v. Daggett, 462 U.S. 725 (1983) 1 2 3
Ketchum v. Byrne, 740 F.2d 1398 (1984) 1 2
King v. State Board of Elections, 979 F. Supp. 582 (N.D. Ill. 1996), vacated mem. sub nom. King
v. Illinois Board of Elections, 117 S. Ct. 429, on remand 979 F. Supp. 619 (N.D. Ill. 1997), aff'd
mem. 118 S. Ct. 877 (1998) 1 2
LaComb v. Growe, 541 F. Supp. 145 (D. Minn. 1982) affd mem. sub nom. Orwoll v. LaComb,
456 U.S. 966 (1982) 1 2
Latino Political Action Committee v. City of Boston, 784 F.2d 409 (1st Cir. 1986) 1
Lawyer v. Department of Justice, 117 S. Ct. 2186 (1997) 1 2
Mahan v. Howell, 410 U.S. 315 (1973) 1
McGovern v. Connolly, 637 F. Supp. 111 (D. Mass 1986) 1
Members of the Cal. Democratic Congressional Delegation v. Eu, 790 F. Supp. 925 (N.D. Cal.
1992), rev'd, Benavidez v. Eu, 34 F.3d 825 (9th Cir. 1994) 1
Miller v. Johnson, 515 U.S. 900 (1995), on remand sub nom. Johnson v. Miller, 922 F. Supp.
1552 (S.D. Ga. 1995), aff'd sub nom. Abrams v. Johnson, 117 S. Ct. 1925 (1997) 1 2 3 4 5 6 7
Nerch v. Mitchell, No. 3:CV -92 -0095, (M.D. Pa. Aug. 13, 1992) (per curiam) 1
Parsons Steel Inc. v. First Ala. Bank, 474 U.S. 518 (1986) 1
Pope v. Blue, 809 F. Supp. 392 (W.D. N.C. 1992), aff'd mem. 506 U.S. 801 (1992) 1 2
Preisler v. Secretary of State, 341 F. Supp. 1158 (W.D. Mo. 1972) 1
Puerto Rican Legal Defense and Education Fund v. Gantt, 796 F. Supp. 677 (E.D. N.Y. 1992),
injunction stayed mem. sub nom. Gantt v. Skelos, 504 U.S. 902 (1992) 1
Reno v. Bossier Parish School Bd., 117 S. Ct. 1491 (1997) 1 2
Republican Party of Virginia v. Wilder, 774 F. Supp. 400 (W.D. Va. 1991) 1
Reynolds v. Sims, 377 U.S. 533 (1964) 1
Richmond v. J.A. Crosun Co., 488 U.S. 469 (1989) 1
Ridge v. Verity, 715 F. Supp. 1308 (W.D. Pa. 1989) 1
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) 1
Scott v. Germano, 381 U.S. 407 (per curiam) 1
Shaw v. Hunt, 517 U.S. 899, 116 S. Ct. 1894 (1996) 1 2 3 4
Shaw v. Hunt, 861 F. Supp. 408 (E.D. N.C. 1994), rev 'd 517 U.S. 899 (1996) 1
Shaw v. Reno, 509 U.S. 630 (1993), on remand sub nom. Shaw v. Hunt, 861 F. Supp. 408 (E.D.
N.C. 1994), rev 'd 517 U.S. 899 (1996) 1 2 3 4 5
Shayer v. Kirkpatrick, 541 F. Supp. 922 (W.D. Mo. 1982) affd sub nom. Schatzle v. Kirkpatrick,
456 U.S. 966 (1982) 1
Skolnick v. State Electoral Board, 336 F. Supp. 839 (N.D. I11. 1971) 1
South Carolina State Conference of Branches of the National Association for the Advancement
of Colored People v. Riley, 533 F. Supp 1178 (D. S.C. 1982) 1
State ex rel. Stephan v. Graves, No. 92- 4097 -R, 1992 WL 152251 (D. Kan. June 24, 1992) 1
Stone v. Hechler, 782 F. Supp. 1116 (W.D. W.Va. 1992) 1
Thornburg v. Gingles, 478 U.S. 30 (1986) 1 2 3
Turner v. Arkansas, 784 F. Supp. 553 (E.D. Ark. 1991) 1
United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977) 1
Upham v. Seamon, 456 U.S. 37 (1982) 1
Vera v. Bush, 933 F. Supp. 1341 (S.D. Tex. 1996); 980 F. Supp. 251 (S.D. Tex. 1997); 980 F.
Supp. 254 (S.D. Tex. 1997) 1
Vera v. Richards, 861 F. Supp. 1304 (S.D. Tex. 1994), aff'd sub nom. Bush v. Vera, 517 U.S.
952 (1996), on remand sub nom. Vera v. Bush, 933 F. Supp. 1341 (S.D. Tex. 1996) 1 2 3
Voinovich v. Quilter, 507 U.S. 146 (1993) 1 2
Wesberry v. Sanders, 376 U.S. 1 (1964) 1
Wetherell v. DeGrandy, 505 U.S. 1232 (1992) (mem.) 1
Whitcomb v. Chavis, 403 U.S. 124, 160 -61 (1971) 1
White v. Regester, 412 U.S. 755 (1973) 1
White v. Weiser, 412 U.S. 783 (1973) 1
Wisconsin v. City of New York, 517 U.S. 1 (1996) 1
Wygant v. Jackson Bd. of Ed., 476 U.S. 267 (1986) 1
United States Constitution:
Article I, Section 2 1
Fourteenth Amendment (Equal Protection Clause) 1 2 3 4 5 6 7 8 9
Full Faith and Credit Act
28 U.S.C. § 1738 1 2
Voting Rights Act of 1965:
Section 2, codified as amended at 42 U.S.C. § 1973 1 2 3 4 5 6
Section 5, codified as amended at 42 U.S.C. § 1973c 1 2 3 4
Regulations:
52 Fed. Reg. 487 (1987) 1 2
Update: June 23, 2005 (psw) Comments: peter .wattson@senate.leM.state.mn.us
J ; „ FRED BLAS
DOMINIC YAGONG BRENDA FORD
Chairperson .;4‘`k . .: 1\ ,V it, { : DONALD IKEDA
PETE HOFFMANN
r _'_ � ,' -
DENNIS "FRESH" ONISHI
Vice Chair
o o . :•:� K. ANGEL PILAGO
ir •
,• . of r ' . BRITTANY SMART
J YOSHIMOTO
HAWAII COUNTY COUNCIL
County of Hawai`i
Hawaii County Building
25 Aupuni Street
Hilo, Hawaii 96720
December 22, 2010
Dominic Yagong, Chairperson
Hawai`i County Council
25 Aupuni Street
Hilo, Hawai`i 96720
RE: Communication No. : Transmittal to Transmit A Training Manual "How to Draw
Redistricting Plans That Will Stand Up in Court by Peter S. Wattson, Senate Counsel,
Minnesota; For the Council Members
Pursuant to Section 2(g) of Rule 4 of the Rules of Procedure of the Council of the County of
Hawai`i, this written request is submitted with my approval that the above - referenced matter be
waived from the Committee on Governmental Relations to the full Council for immediate action.
In reviewing this matter, timely approval is crucial. It is therefore advantageous that approval is
granted and the matter be placed onto the next Council agenda for review. However, in the event
this request is denied, for whatever reason, I understand the matter shall be referred to the
Committee on Governmental Relations for placement on its future agenda.
Sincerely, •
t K. Angel Pilago, a
V Committee on Governmental Relations
App ed /Date /Waive to Council: Disapproved /Date /Refer to GRC
Dominic Yagong, Chat • •ers� Dominic Yagong, Chairperson
Hawai`i County Coun 11 Hawai`i County Council
Serving the Interests of the People of Our Island