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HomeMy WebLinkAboutCommunication 09 How To draw Redistricting Plans That Will Stand Up In Court VALERIE POINDEXTER RENÉ SIRACUSAJEFFREY MELROSE ChairJOHN “MIKE” MIDDLESWORTH PATRICK KAHAWAIOLA‘A DRU MAMO KANUHA LINDA UGALDE Vice Chair CRAIG “BO” KAHUI JOSEPH CARVALHO 2011 HAWAI‘I COUNTY REDISTRICTING COMMISSION TO: Members of the 2011 Hawai‘i County Redistricting Commission FROM: René Siracusa, Chairperson DATE: April 28, 2011 RE: “How to Draw Redistricting Plans That Will Stand Up in Court” As part of our ongoing training efforts in Redistricting, I am attaching a copy of a letter from Brenda Ford, dated April 27, 2011, and a manual entitled “How to Draw Redistricting Plans That Will Stand Up in Court.” This manual was written by Peter S. Wattson, State Counsel, State of Minnesota, and recently revised in October, 2010. This item will be placed on our next meeting agenda, May 12, 2011. Sincerely, René Siracusa Chairperson COMM.9 Serving the Interests of the People of Our Island April 27, 2011 Chairperson Siracusa and Members of the 2011 Redistricting Commission I am providing a copy of the manual “HOW TO DO REDISTRICTING THAT WILL STAND UP IN COURT” (Revised 2010) as part of my testimony for the next commission meeting. The author, Attorney Peter S. Wattson, is a brilliant man who wrote this manual for the State of Minnesota. He was previously the legal counsel to the Minnesota State Senate, and now is the legal counsel to the Minnesota Governor. It is the best manual on redistricting that I've ever seen. This is the Revised 2010 version. It will help the commissioners immensely to do their difficult job more efficiently. Deputy Corporation Counsel Mike Udovic should be able to answer any questions from the commission regarding the manual. Additionally, I suggest that each commissioner be given a copy of a sub-set of the master software that will be used by the State of Hawaii Office of Elections so they can draw their own maps in their spare time. This will assist in making the commission meetings move efficiently. Mahalo. Brenda Ford How to Draw Redistricting Plans That Will Stand Up in Court Peter S. Wattson Senate Counsel State of Minnesota October 21, 2010 Contents I.Introduction ...........................................................1 A.Reapportionment and Redistricting ..................................1 B.Why Redistrict? ..................................................1 1.Reapportionment of Congressional Seats .......................1 2.Population Shifts within a State ...............................3 C. The Facts of Life ..................................................3 1.Equal Population ...........................................3 2.Gerrymandering ............................................5 a.Packing .............................................5 b.Fracturing ...........................................5 c.Creating a Gerrymander ...............................5 D.The Need for Limits ...............................................6 1.Who Draws the Plans ........................................6 2.Data that May be Used ......................................6 3.Review by Others ...........................................6 4.Districts that Result .........................................7 II.Draw Districts of Equal Population ........................................7 A.Use Official Census Bureau Population Counts ........................7 1.Alternative Population Counts ................................7 2.Use of Sampling to Eliminate Undercount ......................8 3.Exclusion of Undocumented Aliens ............................9 4.Inclusion of Overseas Military Personnel .......................9 B.Census Geography ................................................9 1.Public Law 94-171 ..........................................9 2.Statistical .................................................10 a.Block ..............................................10 b.Block Group ........................................10 c.Census Tract ........................................10 d.County .............................................10 3.Political ..................................................10 a.Precinct, Ward, Election District = VTD .................11 b.City, Town, Village, Unorganized Territory, Other = MCD ...................................................11 c.Place ..............................................11 d.County .............................................11 C.Measuring Population Equality ....................................11 D.Congressional Plans .............................................12 1.“As Nearly Equal in Population As Practicable” ................12 2.Unless Necessary to Achieve “Some Legitimate State Objective” ...13 E.Legislative Plans .................................................14 i 1.An Overall Range of Less than Ten Percent ....................14 2.Unless Necessary to Achieve Some “Rational State Policy” ........15 III.Don’t Discriminate Against Racial or Language Minorities ...................17 A.Section 2 of the Voting Rights Act ..................................17 1.A National Standard .......................................17 2.Data on Race and Language Minorities ........................18 3.No Discriminatory Effect ...................................19 4.The Three Gingles Preconditions .............................19 5.“The Totality of the Circumstances” ..........................20 6.Draw Districts the Minority Has a Fair Chance to Win ..........21 B.Section 5 of the Voting Rights Act ..................................22 1.In “Covered Jurisdictions,” Plans Must be Precleared ...........22 2.Do Not Regress ............................................23 3.Do Not Intend to Discriminate ...............................24 4.You Need Not Maximize the Number of Minority Districts .......24 C.Equal Protection Clause of the 14th Amendment ......................26 1.You May Consider Race in Drawing Districts ..................26 2.Avoid Drawing a Racial Gerrymander ........................26 a.Beware of Bizarre Shapes .............................27 b.Draw Districts that are Reasonably Compact .............28 c.Beware of Making Race Your Dominant Motive ..........32 d.Beware of Using Race as a Proxy for Political Affiliation ...33 e.Follow Traditional Districting Principles ................34 3.Strict Scrutiny is Almost Always Fatal ........................34 a. A Compelling Governmental Interest ...................35 b.Narrowly Tailored to Achieve that Interest ..............35 (1) Remedying Past Discrimination ..................35 (2) Avoiding Retrogression Under § 5 ................35 (3) Avoiding a Violation of § 2 ......................37 IV. Don’t Go Overboard with Partisan Gerrymandering ........................39 A.Partisan Gerrymandering is a Justiciable Issue .......................39 B.Can It Be Proved? ...............................................40 V.Prepare to Defend Your Plan in Both State and Federal Courts ...............42 A.Federal Court Must Defer to State Court ............................42 B.Federal Court May Not Directly Review State Court Decision ...........43 C.Plan Approved by State Court Subject to Collateral Attack in Fed ...............................................................43 D.Federal Court Must Defer To State Remedies ........................44 E.Attorney General May Represent State in Federal Court ...............44 Table of Authorities ..........................................................46 ii I.Introduction The purpose of this paper is to acquaint you with the major fede way you draw your legislative and congressional redistricting pl you may learn how to draw redistricting plans that will stand up Before I get into the cases, I’d like to clarify some terms I wi redistricting process works. A.Reapportionment and Redistricting “Reapportionment” is the process of reassigning a given number o to established districts, usually in accordance with an establis boundaries of the districts do not change, but the number of mem “Redistricting” is the process of changing the district boundari per district does not change, but the districts’ boundaries do. The relationship between reapportionment and redistricting can m examining the U.S. House of Representatives. Every ten years th Representatives are reapportioned among the 50 states in accorda As the population of some states grows faster than that of other slow-growing states to the fast-growing ones. Then, within each than one representative, the boundaries of the congressional dis populations equal. The state is redistricted to accommodate its Reapportionment, in the narrow sense in which I will be using it political process. It is a mathematical one. The decennial reap Representatives is carried out in accordance with a statutory fo 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 cens use this particular formula, rather than another, has been uphel Dept. of Commerce v. Montana,503 U.S. 442 (1992). Redistricting, on the other hand, is highly partisan. This is b boundaries, the drafter has such wide discretion in deciding whe drafting can give one party a significant advantage in elections B.Why Redistrict? 1.Reapportionment of Congressional Seats Why do we redistrict? The first reason is because of population congressional seats to move from state to state. 1 This map shows one prediction of how congressional seats will mo a result of the 2010 census. It is based on estimates from the each state as of July 2009 and then projecting forward to Census various other projections that have been made, under which these here and there. All show the continued shift of population from West, as captured by each of the last several censuses. This map shows the shifts, but it doesn’t show the why. Why is times as many seats as most states? It also doesn’t show how close each state is to gaining or losin last prediction, Minnesota was on track to lose a seat by only 1 Missouri, allowing it just barely to retain all its seats. By t about 15,000 persons and Missouri loses one. It also doesn’t show what has happened since July 2009. With th who want to leave Minnesota can’t sell their houses, and people get a mortgage. 2 In each of the States that gains or loses a seat, the congressio redrawn to accommodate the new number of districts 2.Population Shifts within a State The second reason we must redistrict is population shifts within Even if the number of districts has not changed, if the populati uniform throughout a jurisdiction, the districts will tend to ha There are exceptions, of course. In preparation for the 1990 ro Paul purchased the necessary hardware and software, appointed a prepared to draw new city council districts. But when the popul discovered that its population growth had been so uniform that n population balance to require redistricting. They disbanded the old districts for another decade. Others have not been so lucky C. The Facts of Life 1.Equal Population It is a fact of life in redistricting that absolute numbers are numbers. Getting the numbers right is important, but once you h absolute value but rather how they relate to each other. Even if all areas of a state are growing, what is important for is whether it has grown faster or slower than average. Districts will have to grow in area. Districts that have grown faster tha 3 Minnesota House Districts by 2009 Population Estimates This map shows the State of Minnesota’s estimated population by and whether its population is larger or smaller than average, th The districts in yellow, toward the center of the state, are wit plus or minus. Those in olive, in the north central and southeas the ideal. Those in brown, in the northeast, northwest, and sout below the ideal. Those in light green, in the central and east to 23 percent above the ideal, and those in dark green, ringing more than 23 percent above the ideal. The brown and olive distr the green districts will have to shrink in area in order to meet You might think that the yellow districts have nothing to worry are close to ideal. But if the brown and olive districts must g new population from? The yellow districts, which will then need taking from their neighboring yellow, brown, olive, or green dis quite a strain on relationships between neighbors that used to b 4 2.Gerrymandering It is a fact of life in redistricting that the district lines ar majority in power, and that the majority will always be tempted to enhance their prospects for victory at the next election. Th to describe any technique by which a political party attempts to redistricting. Used in its narrow sense, to refer only to the practice of drawi that look like monsters, there are basically just two techniques they work? a.Packing “Packing” is drawing district boundary lines so that the members concentrated, or “packed,” into as few districts as possible. T packed districts—70, 80, or 90 percent. They can elect represent votes in excess of a simple majority are “wasted.” They are not representatives in other districts, so they cannot elect represe in the state as a whole. b.Fracturing “Fracturing” is drawing district lines so that the minority popu of the minority are spread among as many districts as possible, district, rather than permitting them to concentrate their stren some districts. c.Creating a Gerrymander If the supporters of the minority party were distributed evenly would be no need to gerrymander. In a state where the minority they would lose every seat. But political minorities tend not to be evenly distributed. In as majorities do. So the persons drawing the redistricting plan draw their districts accordingly: first packing as many of the possible and then, where they can’t be packed, fracturing them i It is this process of drawing the district lines to first pack a creates the dragon-like districts called gerrymanders. In drawing districts after the 2010 census, you may find there i than in the past. Both Republicans and Democrats have been packi of housing trends over the last three decades shows that America 5 more to live among those whose political views are just like the to become “landslidecounties”that consistentlyvoteoverwhelmingly Bishop,The Big Sort: Why the Clustering of America is Tearing Us Apart (2008). D.The Need for Limits To counter the temptation of plan drafters to give their party a redistricting, constitutions, courts, and citizens have imposed the plans, on the data that may be used, on the procedures they result.See National Conference of State Legislatures, “Limits on Gerrymand 2009) <www.senate.mn/departments/scr/redist/Red2010/limits_on_gerrymand>. 1.Who Draws the Plans In some states, responsibility for redistricting has been taken and given to a commission. Depending on the state, the commissi appointees of a legislator, no public officials, or even no poli See“Limits on Gerrymanders;” National Conference of State Legislatures, Redistricting Law 2010, appendix C, “Redistricting Commissions: Legislative Plans,” <www.senate.mn/departments/scr/redist/Red2010/appx_C_legislative.>, and appendix D, “Redistricting Commissions: Congressional Plans,” <www.senate.mn/departments/scr/redist/Red2010/appx_D_congressiona>. Denver, Colo.: NCSL, 2009. The commission may be required to include members o equally balanced between members of the majority and minority pa Id. A commission that is equally balanced may include a tie-breaker chosen by its members as the state Supreme Court. Id. 2.Data that May be Used A state’s constitution, laws, or policies, may limit the data th The limits may prohibit the use of data on party registration, e other than Census Bureau population counts. See“Limits on Gerrymanders;”Redistricting Law 2010, table 8, and appendix E, “Districting Principles for 2000s Pla <www.senate.leg.state.mn.us/departments/scr/redist/red2010/appx_p>. Plan drafters may be prohibited from using data on where incumbent members res Id. 3.Review by Others A state’s constitution, laws, or policies may require that a red people other than the plan drafters before it may take effect. hold at least one public hearing before adopting a plan, they ma plan for public inspection before adopting their final plan, or required to review the plan before it may take effect. Id. 6 4.Districts that Result In addition to these state limits on the procedures used to adop law imposes limits on the districts that result. Federal law re populations and to allow racial and language minorities a fair o their choice. Undercertain circumstances, federal law may requir districting principles.” In a given state, the law may require territory, that they be compact, that house districts be nested not divide political subdivisions or communities of interest, or competitive.Id. All these limits are intended to restrain the majority from taki position when drawing district lines. 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 substantially equal population. But how do you know the populat official Census Bureau population counts from the 2010 census. It is true that some legislatures have chosen to use data other population counts to draw their districts and have had their pla example, back in 1966, Hawaii used the number of registered vote population, to draw its legislative districts, and had its plan 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 resu A state may conduct its own census on which to base its redistri a 1979 Kansas legislative redistricting plan based on the state’ 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 redistrict 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 governme accurate reflection of current population than old census counts developing redistricting plans before the next census. Garza v. County of Los Angeles, 756 F. Supp. 1298 (C.D. Cal.1990). 7 But generally, the federal courts will not simply accept an alte Rather, they will first check to see whether the districts are o on Census Bureau figures. If they are not, the courts will stri So, if you want your plans to stand up in court, the easiest way population counts. 2.Use of Sampling to Eliminate Undercount In the 1990s, the main political fight over how to count the pop compensate for the historic undercounting of racial and ethnic m the City of New York and other plaintiffs that sought to compel statistical adjustment to the population data to account for peo Bureau agreed to make a fresh determination of whether there sh an undercount or overcount in the 1990 census. The Bureau agreed survey of at least 150,000 households to use as the basis for th by July 15, 1991, it would either publish adjusted population da not making the adjustment. Any population data published before published December 31, 1990, and the block totals published Apri that they were subject to correction by July 15. The Bureau ult statistical adjustment to correct for the undercount, and the Su was reasonable and within the discretion of the Secretary of Com Census Bureau is located. Wisconsin v. City of New York,517 U.S. 1 (1996). For the 2000 census, the fight was over whether to use scientifi conduct the census from the beginning, rather than adjusting the been issued. The Census Bureau proposed that, in order to obtain of the households in each census tract, it would use statistical characteristics of the households that did not respond to the fi questionnaire. In each census tract, the fewer households that be the size of the sample enumerators would contact directly as addresses that would be included in the sample would be scientif they were statistically representative of all nonresponding hous 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 of persons enumerated without using statistical methods.” It als whether the Bureau’s plan to use sampling for apportioning seats 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 sam representatives in Congress among the states. It did not rule o sampling to determine the distribution of population within each its apportionment of congressional seats or the seats in its sta 8 Having used statistical techniques to adjust the population coun overcounts, the Census Bureau, shortly before the release of the decided not to release the adjusted counts, saying it was not co courts upheld the decision of the Bureau not to release the adju Carter v. U.S. th Department of Commerce,No. 02-35161, 307 F.3d 1084 (9 Cir. 2002). The Census Bureau has not proposed any statistical adjustment to 3.Exclusion of Undocumented Aliens The census is not limited to citizens. It is not even limited t constitution says to count “persons,” Art. I, § 2, as amended by the Fourteenth Amendment, so even homeless people are counted where they usually sleep. Pennsylvania and other states have sought without success to req exclude undocumented aliens from the population counts used to a 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 ove employees and their dependents to determine their “address of re personnel were allocated to the states according to their addres apportioning the House of Representatives, but were not included given to the states for use in redistricting. Allocating oversea one congressional seat to be shifted from Massachusetts to Washi the Secretary of Commerce, but the Supreme Court upheld the allo Franklin v. Massachusetts,505 U.S. 788 (1992). B.Census Geography 1.Public Law 94-171 When a state receives its official Census Bureau population coun What each state gets depends on what it asked for. Public Law 94-171, 89 Stat. 1023 (1975) (codified as amended at 13 U.S.C. § 141(c)), permits each state to request the Census Bureau to provide it wi accordance with the geographic areas identified by the state and counts before April 1, 2011. These counts are often referred to 9 Most states ask the Census Bureau to provide them with populatio other political units and work with the Bureau for years before boundaries included in the census geography. What does that geography look like? First, you need to know the geography: the statistical geography and the political geograph 2.Statistical The statistical geography includes blocks, block groups, census a.Block A census block in an urban area is usually a city block, bounded rural areas, where there may not be streets laid out in a grid p and irregular, bounded by roads, railroads, rivers, lakes, and a physical features, as well as by invisible city, town, or county of a census block is about 100 people. b.Block Group A block group may have ten, twenty, thirty, or more blocks, all their block number. Block groups tend to be relatively compact c.Census Tract Those blocks and block groups are aggregated into census tracts, relatively compact and rectangular. They average about 4,000 pe which tend to change significantly from one census to the next, stable, in order to facilitate comparisons from one decade to th d.County The census tracts are aggregated by county. They do not cross c 3.Political In addition to this statistical geography, the Census Bureau tab counts by many kinds of political geography. Following is a part used to build legislative and congressional districts. They all states try not to have precinct boundaries that split a census b I don’t know of any state that tries to avoid splitting block gr 10 Here is where census geography gets confusing: because the poli is so varied, and even two states with the same political geogra to report their population counts based on the same set of polit someone from another state talking about the population counts t reason you don’t understand what they’re talking about is simply redistricting geography that is different from yours. To bring some order out of this chaos, the Census Bureau has inv a.Precinct, Ward, Election District = VTD What many states call precincts, but some call wards, election d use to tabulate election results, the Census Bureau calls Voting b.City, Town, Village, Unorganized Territory, Other = MCD General purpose local governmental units within a county, such a boroughs, and unorganized territory, are called Minor Civil Divi c.Place In some states, incorporated governmental units are called Place d.County VTDs and MCDs do not cross county boundaries. Where a city cross the portion on either side of the boundary gets a different MCD So, ask around to find out what kinds of census units are used t congressional districts in your state, and you’ll get a better i look like. C.Measuring Population Equality How does a court measure the degree of population equality in a give you an example. Let’s say we have a state with a populatio entitled to elect ten representatives in Congress. (That is not work with.) The average, or “ideal,” district population would b draws a redistricting plan that has five districts with a popula a population of 110,000. The “deviations” of the districts woul or minus ten percent and plus ten percent. The “average deviati or ten percent. And the “overall range” would be 20,000, or 20 statisticians call the “overall range” to measure the population they have usually referred to it by other names, such as “maximu “overall deviation.” 11 D.Congressional Plans 1.“As Nearly Equal in Population As Practicable” Once you know the population, and you know how to measure the de equality in a plan, how equal do the districts have to be? Firs courts use two different standards for judging redistricting pla a different one for legislative plans. The standard for congressional plans is based on Article I, § 2, of the U.S. Constitution, which says: Representatives . . . shall be apportioned among the several Sta their respective numbers . . . . The standard for congressional plans is strict equality. In the Wesberry v. Sanders,376 U.S. 1, the U.S. Supreme Court articulated that standard as “as nearly population as practicable.” Notice the choice of words. The Court did not say “as nearly equ practical.” The American Heritage Dictionary defines “practicable” as “capable of being . . . done . . . .” that something “practical” is not only capable of being done, bu It illustrates the difference between the two by pointing out th 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 Legisla than one percent. To be precise, .6984 percent, or 3,674 people one other plan before the Legislature had an overall range less Legislature, thus carrying their burden of proving that the popu reduced or eliminated by a good-faith effort to draw districts o In the 1980s, three-judge federal courts drawing their own redis mathematical equality. For example, in Minnesota the court-draw 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, only the sum of all the deviations, 76 people, and refers to it as the “tota 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 technolo redistricting plans after the 1990 census, the degree of populat even greater than that achieved in the 1980s. 12 In the 2000s, 17 states drew congressional plans with an overall person, and 12 more drew plans with an overall range of two to t SeeRedistricting Law 2010, table 3, “Population Equality of 2000s Districts,” <www.senate.leg.state.mn.us/departments/scr/redist/red2010/table_>. If you can’t draw congressional districts that are mathematicall assume that others can’t. Assume that you risk having your plan 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 yours, you may still be able to save your plan if you can show t the ideal was necessary to achieve “some legitimate state object 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 ju including, for instance, making districts compact, respecting mu preserving the cores of prior districts, and avoiding contests b Representatives . . . . The State must, however, show with some particular objective required the specific deviations in its pla relying on general assertions . . . . By necessity, whether dev requires case-by-case attention to these factors. 462 U.S. at 740-41. If you intend to rely on these “legitimate state objectives” to any degree of population inequality in a congressional plan, you would be well advised to advance, follow them consistently, and be prepared to show that objectives in each district with districts that had a smaller deviation from the ideal. In the 1990s, Arkansas, Maryland, and West Virginia were all abl congressional plans drawn by the legislature were challenged in SeeTurner v. Arkansas, 784 F.Supp. 585 (E.D. Ark. 1991); Anne Arundel County Republican Cent. Committee v. State Administrative Bd. of Election Laws, 781 F. Supp. 394 (D. Md. 1991); Stone v. Hechler, 782 F. Supp. 1116 (W.D. W.Va. 1992). In the 2000s, Georgia, Kansas, and West Virginia withstood equal their congressional plans, see Larios v. Cox, 300 F. Supp.2d 1320 (N.D. Ga. 2004), aff’d, 542 U.S.947 (2004) ( No. 03-1413) (mem.); Graham v. Thornburgh,No. 02-4087-JAR (D. Kan. 2002); Deem v. Manchin, 188 F. Supp.2d 651 (N.D. W. Va. 2001), aff’d sub nom. Unger v. Manchin, 536 U.S. 935 (2002) (mem.); while 22 states drew congressional plans wit person that were not challenged. SeeRedistricting Law 2010, table 3, “Population Equality of 2000s Districts,” <www.senate.leg.state.mn.us/departments/scr/redist/red2010/table_>, and National Conference 13 of State Legislatures, “Action on Redistricting Plans, 2001-07 ( <www.senate.leg.state.mn.us/departments/scr/redist/redsum2000/act>. Near the end of the 1990s, the Supreme Court upheld a court-draw Georgia with an overall range of 0.35 percent (about 2,000 peopl Abrams v. Johnson,521 U.S. 74 (1997). But that was the lowest range of all the plans that me Georgia was able to show it had a consistent historical practice Atlanta area, and likely shifts in population since 1990 had mad population equality illusory. E.Legislative Plans 1.An Overall Range of Less than Ten Percent Fortunately for those of you who will be drawing redistricting p the Supreme Court has adopted a less exacting standard for legis Apportionment Clause of Article I, § 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 dra necessary is that they achieve “substantial equality of populati Id. at 579. “Substantial equality of population” has come to mean that a leg thrown out for inequality of population if its overall range is proof of intentional discrimination within that range. The ten-percent standard was first articulated in a dissenting o 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 fol 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). An overall range of less than ten percent is not a safe harbor. Georgia General Assembly had systematically underpopulated distr inner-city Atlanta and overpopulated districts in the suburban a in order to favor Democratic candidates and disfavor Republican systematically paired Republican incumbents while reducing the n who were paired, and that the plans tended to ignore the traditi Georgia in previous decades, such as keeping districts compact, contiguity, keeping counties whole, and preserving the cores of down as a violation of the Equal Protection Clause.Larios v. Cox, 300 F. Supp.2d 1320 (N.D. Ga. 2004),aff’d,542 U.S.947 (2004) (mem.). 14 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 “b incident to the effectuation of a rational state policy . . . .”579(1964). So far, the only “rational state policy” that has served to justify an overa legislative plan has been respecting the boundaries of political in only three Supreme Court 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 enac Virginia General Assemblythat had an overall range among House d Court took note of the General Assembly’s constitutional authori particular political subdivisions, and found that this legislati substantial aspect of the Assembly’s powers and practices, and t 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 Karcher v. Daggett, 462 U.S. 725 (1983), where it threw out a congressional plan with an overall percent. Reconciling these two cases is not easy. Nevertheless First, as I have noted, the constitutional standard for legislat 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 distri opportunities for partisan mischief were far reduced. Third, Wyoming put forward a “rational state policy” to justify ten percent, and the Court endorsed it. Writing for the Court, Wyoming’s constitutional policy—followed since statehood—of usin districts and insuring that each county had at least one represe and legitimate state concerns, and had been applied in a manner or discrimination. He also found that the population deviations preserve counties as representative districts, and that there wa to favor particular interests or geographical areas. 462 U.S. a843-46. But Wyoming’s policy of affording representation to political su less important to the result than was the peculiar posture in wh Court. The appellants chose not to challenge the 89 percent ove challenge only the effect of giving the smallest county a repres by Justice Stevens, concurred in the result but emphasized that 15 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 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 bec plan was 13.81 percent and the overall range of the Senate plan pointed out that preserving the boundaries of political subdivis might justify an overall range in excess of ten percent. There may not be any other “rational state policies” that will j the ten-percent standard. But with the multitude of plans that your consideration, you may wish to adopt other policies to gove percent overall range. Courts that are called upon to draw redistricting plans, when le adopted policies for the parties to follow in submitting propose are not required by the federal constitution, and have not been percent standard, but they have helped the three-judge courts to were fair in adopting their plans. These policies often have in 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 territory, and the constitutions of 21 states required that dist Karcher v. Daggett, 462 U.S. 725, 756 n. 18 (1983) (Stevens, J., concurring). 16 The Supreme Court refers to these policies (including respecting 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, (1996); Bush v. Vera,517 U.S. 952, 959 (1996); Abrams v. Johnson,521 U.S. 74, 84­ 95 (1997). III.Don’t Discriminate Against Racial or Language Minorities A.Section 2 of the Voting Rights Act 1.A National Standard Assuming that you are prepared to meet equal population requirem to make sure you do not discriminate against minorities. In a democracy, “power to the people” means the power to vote. 1 Rights Act of 1965 (codified as amended at 42 U.S.C. § 1973), attempts to secure this political power for racial and language minorities by prohibiting states a imposing or applying voting qualifications; prerequisites to vot procedures to deny or abridge the right to vote on account of ra 1 § 1973 Denial or abridgement of right to vote on account of race qualifications or prerequisites; establishment of violation (a) No voting qualification or prerequisite to voting or standard, p applied by any State or political subdivision in a manner which citizen of the United States to vote on account of race or color section 1973b(f)(2) of this title, as provided in subsection (b) (b) A violation of subsection (a) of this section is established if is shown that the political processes leading to nomination or e equally open to participation by members of a class of citizens members have less opportunity than other members of the electora elect representatives of their choice. The extent to which memb Provided the State or political subdivision is one circumstance which may, That nothing in this section establishes a right to have members of a protected class population. § 1973b (f)(2) No voting qualification or prerequisite to voting, or st imposed or applied by any State or political subdivision to deny States to vote because he is a member of a language minority gro § 1973l (c)(3) The term “language minorities” or “language minority gro American Indian, Asian American, Alaskan Natives or of Spanish h 17 member of a language minoritygroup. A “language minoritygroup” i 2 Asian American, Alaskan Natives or of Spanish heritage.” Section 2 applies throughout the United States. It has been used to attac and redistricting plans on the ground that they discriminated ag Indians and abridged their right to vote by diluting the voting 2.Data on Race and Language Minorities In order to facilitate enforcement of the Voting Rights Act, the person counted to identify their race and whether they are of Hi Census, the racial categories are: White, Black, American India Pacific Islanders, and Some Other Race. Persons of Hispanic or Persons are given the opportunity to select more than one race. The Census Bureau reports racial data in 63 categories, covering up to all six racial groups. Double that for Hispanic or Latino under and over 18. There are 263 potential categories of popula for each block! In order to reduce the categories of racial data to a manageable guidance to states and local governments that must submit their before they may take effect, the U.S. Department of Justice says 3 Department will analyze only eight categories of race data: Non-Hispanic White Non-Hispanic Black plus Non-Hispanic Black and White Non-Hispanic Asian plus Non-Hispanic Asian and White Non-Hispanic American Indian plus Non-Hispanic American Indian a Non-Hispanic Pacific Islander plus Non-Hispanic Pacific Islander Non-Hispanic Some Other Race plus Non-Hispanic Some Other Race a Non-Hispanic Other multiple-race (where more than one minority r Hispanic The total of these racial groups will add to 100 percent. In the 2000 census, out of 281 million people, only 6.8 million more races and 93 percent of those reported only two races. 2 42 U.S.C. § 1973l(c)(3) (2006). 3 U.S. Dept. of Justice, “Guidance Concerning Redistricting and R Section 5 of the Voting Rights Act, 42 U.S.C. 1973c,” 66 Fed. Reg. 5412. 18 In most areas of the country, you will only need to be concerned and Hispanics. 3.No Discriminatory Effect Purity of intent will not save your plan from attack under § 2. will have the effect of diluting minority voting strength, not w to discriminate. It is true that in 1980, in City of Mobile v. Bolden,446 U.S. 55, the U.S. Supreme Court interpreted § 2 as applying only to actions intended to discriminate. Black residents of Mobile, Alabama, had charged that the city’s practice of electing commis voting strength. They failed to prove the at-large plan was ado intent to discriminate against Blacks. The Supreme Court refused to strike it down. In 1982, Congress amended the Voting Rights Act to reject the Co enacted, § 2 had prohibited conduct “to deny or abridge” the rig Pub. L. No. 89-110, 79 Stat. 437 (1965) (codified as 42 U.S.C. § changed that to prohibit conduct “which results in a denial or a No. 97-205, § 3, June 29, 1982, 96 Stat. 134 (codified as amende42 U.S.C. § 1973). Before Bolden, courts had generally considered whether a particular redistric effect of diluting the voting strength of the Black population. Congress c Bolden case law by adding: A violation of [§ 2] is established if, based on the totality of shown that the political processes leading to nomination or elec political subdivision are not equally open to participation by m citizens protected by [§ 2] in that its members have less opport members of the electorate to participate in the political proces representatives of their choice. The extent to which members of have been elected to office in the State or political subdivisio 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 the population. 42 U.S.C. § 1973 (b). 4.The Three Gingles Preconditions In order to assist courts in evaluating challenges to redistrict Thornburg v. Gingles,478 U.S. 30 (1986), 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 co in a single-member district; 19 2) that it is politically cohesive; and 3) that, in the absence of special circumstances, bloc voting by defeats the minority’s preferred candidate. 478 U.S. at 50-51. Gingles was the first case in which the Supreme Court considered the 19 § 2. It was a challenge to legislative redistricting plans in No multimember Senate district, one single-member Senate district, districts. Justice Brennan’s majority opinion upheld the constit§ 2, as amended. The Court has since held that the three preconditions also apply§ 2 challenges to single- member districts. Growe v. Emison,507 U.S. 25, 40-41 (1993). 5.“The Totality of the Circumstances” Once these three preconditions are satisfied, Justice Brennan sa several additional “objective factors” in determining the “total an alleged violation of § 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 exte nt 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) denia l 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 educ ation, employment, and health, which hinder effective participation; 6) whe ther 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 g roup; and 9) whether the policy underlying the use of the voting qualification, standard, practice, or procedure is tenuous. 20 478 U.S. at 36-37. In Gingles, the Court threw out all of the challenged multimember district Black candidates had sometimes managed to get elected. 6.Draw Districts the Minority Has a Fair Chance to Win If you have a minority population that could elect a representat and the minority population has been politically cohesive, but b the minority’s preferred candidates from being elected in the pa that the minority has a fair chance to win. To do that, they wi the district. How much of a majority is that? It has taken awhile to get there, but the U.S. Supreme Court has that § 2 does not require the creation of a district that a min unless the minority will constitute a majority of the voting age happened in the North Carolina case of Bartlett v. Strickland,No. 07-689, 129 S.Ct. 1231 (2009). In 1977, the Supreme Court had upheld a determination by the Jus percent non-White population majority was required to achieve a voters in certain legislative districts in New York City. United Jewish Organizations of Williamsburgh, Inc. v. Carey,430 U.S. 144, 164 (1977). In 1984, the Court of Appeals for the Seventh Circuit, in the ca Ketchum v. Byrne, 740 F.2d 1398, endorsed the use of a 65 percent Black population maj majority, in the absence of empirical evidence that some other f Ketchum involved the redistricting of city council wards in the city of census. The Court of Appeals found that “minority groups general consequently, a larger proportion of individuals who are ineligi age population was a more appropriate measure of their voting st Further, because the voting age population of Blacks usually has voter turnout, the district court should have considered the use of total population or 60 percent of voting age population when Blacks could win. The Court of Appeals noted that: [J]udicial experience can provide a reliable guide to action whe ambiguous or not determinative and that a guideline of 65% of to its equivalent) has achieved general acceptance in redistricting . . . This figure is derived by augmenting a simple majority wit young population, 5% for low voter registration and 5% for low v Id. at 1415. 21 But the Court of Appeals in Ketchum also noted that “The 65% figure . . . should be reconsidered regularly to reflect new information and new statis id. at 1416. In redistricting following the 1990 census, several courts found th registration and voter participation among minority groups, a mi slightly more than 50 percent was sufficient to provide an effec Bartlett v. Strickland, the 65 percent guideline has been abandoned. 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 district 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 against Blacks because there was only a moderate degree of racia “[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 Id. at 414. The Black population was so distributed that, even if fewer Blac districts, there were not enough Blacks to create a third distri Id. If you face a charge of a § 2 violation, you had better be prepared with empirical data to sho what is “reasonable and fair” under “the totality of the circums invalidated for putting either too few or too many members of a While political party members have spent the last decade packing language minority groups have spent the last decade fracturing t cities to the suburbs, diluting their votes within the majority See, e.g., Richard Fry, The Rapid Growth and Changing Complexion of Suburban Public Schools, Pew Hispanic Center (Mar. 31, 2009). You may find that drawing majority-mino is harder than it was before. B.Section 5 of the Voting Rights Act 1.In “Covered Jurisdictions,” Plans Must be Precleared While § 2 of the Voting Rights Act applies throughout the United States, amended at 42 U.S.C. § 1973c), applies only to certain covered jurisdictions, which are list appendix to the Code of Federal Regulations, 28 C.F.R. Part 51. If you’r because all of your election law changes since 1965, and not jus to be precleared, before they take effect, by either the U.S. De Court for the District of Columbia. The preclearance requirement has been challenged repeatedly and 2009.See, e.g., Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder, No. 08-322, 557 U.S. ____ (June 22, 2009); City of Rome v. United States,446 U.S. 156 (1980); South Carolina v. Katzenbach,383 U.S. 301 (1966). The Court in NAMUDNO expressed serious doubt that § 5’s “current burdens [were] justified by current needs,” slip op. at 22 constitutional issue by permitting the utility district to escap preclearance requirement, slip op. at 11-17. 2.Do Not Regress Section 5 preclearance of a redistricting plan will be denied if the Just Court concludes that the plan makes the members of a racial or l they were before, that is, if it causes the minority to regress. worse off than before is whether they are likely to be able to e before. The no “retrogression” test was first set forth in Beer v. United States,425 U.S. 130 (1976). It was reaffirmed in the next round of redistricting, in City of Lockhart v. United States,460 U.S. 125 (1985). Beer was a challenge to the 1971 redistricting of the city council s Orleans. Since 1954, two of the seven council members had been been elected from single-member wards last redrawn in 1961. Eve of the population and 35 percent of the registered voters in the majority of the registered voters in any of the wards, and were one ward. No ward had ever elected a council member who was Blac plan, one ward was created where Blacks were a majority of both voters, and one ward was created where Blacks were a majority of the registered voters. The Supreme Court held that the plan was enhanced, rather than diminished, Blacks’ electoral power. In Georgia v. Ashcroft,539 U.S. 461 (2003), the Supreme Court opined that retrogression is determined by evaluating the plan as a whole. It said a stat with a certain number of “safe” majority-minority districts or a more “coalitional districts” (where the minority may elect a rep coalitions with other racial and ethnic groups) or more “influen play a substantial, if not decisive, role in determining who is 539 U.S. at 479-83. Justice O’Connor further instructed that, “In assessing the tota court should not focus solely on the comparative ability of a mi its choice.” 539 U.S. at 480. She said that whether minority incumbents benefit by and plan is relevant to whether the plan is retrogressive. 539 U.S. at 483-84. This further instruction was rejected by Congress in 2006, when it stated explicitly that the§ 5 was “to protect the ability of [racial and language minorities] to elect their prefe 27, 2006, Pub.L. No. 109-246, sec. 5(d), 120 Stat. 581 (codified as amended at 42 U.S.C. § 1973c); see H.R. R.N. 109-478 at 93-94, reprinted in 2006 U.S.C.C.A.N. 618, 678-79. EPO To defend against a charge that your plan will make members of a group worse off than they were before, you will want to have at of the minority at electing representatives of their choice. 23 3.Do Not Intend to Discriminate If those who drafted a redistricting plan intended it to discrim language minority, preclearance of the plan must be denied, even minority to regress. See Act of July 27, 2006, Pub. L. No. 109-246, sec. 5(c), 120 Stat. 581 (codified as amended at 42 U.S.C. § 1973c). H.R. R.N. 109-478 at 93-94, reprinted in 2006 U.S.C.C.A.N. EPO 618, 678-79. In 1987, the Justice Department announced that, notwithstanding employed by the courts when considering preclearance under § 5, the Justice Department would apply the stricter standards of § 2 when deciding whether to preclear a plan under § 5. Supplemental Information, 52 Fed. Reg. 487 (1987). This practice was discredi see Reno v. Bossier Parish School Bd. (Bossier Parish I),520 U.S. 471 (1997), and repealed by the Justice Department in 1998. See 63 Fed. Reg. 24108, 24109 (May 1, 1998). The Bossier Parish (Louisiana) School Board had redrawn its 12 s following the 1990 census using the same plan already precleared doing so, it rejected a plan proposed by the NAACP that would ha districts. The Justice Department refused to grant preclearance demonstrated that Black residents could have been given more opp their choice and that therefore their voting strength was dilute§ 2. In Bossier Parish I the Supreme Court rejected this argument, saying that preclearan§ 5 may not be denied solely on the basis that a covered jurisdiction’s new voting “st § 2. The Court pointed out that sections 2 and 5 were designed to c that § 5 was only directed at effects that are retrogressive. When the case returned to the Supreme Court, Bossier Parish II,528 U.S. 320, 328–300 (2000), the Court ruled that a discriminatory purpose only encom other intent to discriminate. In 2006, Congress rejected the Court’s Bossier Parish II interpretation of § 5, amending it to say that “any discriminatory purpose” (not just a purpose to preclearance. See Act of July 27, 2006, Pub.L. No. 109-246, sec. 5(c), 120 Stat. 581 (codified as amended at 42 U.S.C. § 1973c); H.R. R.N. 109-478 at 93-94, reprinted in 2006 U.S.C.C.A.N. EPO 618, 678-79. 4.You Need Not Maximize the Number of Minority Districts Notwithstanding anything you might have been told by the Justice you are not required to maximize the number of majority-minority In the 1990s round of redistricting, the natural desire of some grouped together in districts they could win coincided with the them. Since African Americans and Hispanics have tended to vote drafters were more than willing to accommodate their desire to h 24 new redistricting plans were drawn in preparation for the 1991 a Department was controlled by Republicans. As states like North Texas presented their plans to the Justice Department for approv that they create additional majority-minority districts wherever found to create them. This insistence was not limited by any co “geographically compact.” The states’ plans were first denied minority districts were added, the plans were precleared. The pl courts.Shaw v. Hunt,517 U.S. 899 (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 (1996). The Justice Department’s policy of pressuring states to maximize minority districts was not based on a correct reading of the Vot Section 2 included a proviso, added through the efforts of Senator Dole i in this section establishes a right to have members of a protect their proportion in the population.” 42 U.S.C. § 1973 (b). In other words, § 2 did not mandate proportional representation. So, how could it be construed by t 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 tha County (Miami) where Hispanics had an effective voting majority. Justice Department attacked the plan in federal court, alleging County was sufficient to create 11 House districts where Hispani majority. The district court agreed, imposing its own plan (bas that created 11 Hispanic districts. The Supreme Court reversed, of majority-minority districts was not required. As Justice Sout “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, consti 12(slip op. at 11-14). The Court refused to draw a bright line giving plan drafters a s minority districts in proportion to the minority population. Th clear command of the statute that the question of whether minori opportunity to elect representatives of their choice must be dec circumstances,” rather than on any single test. It would encour districts to achieve proportionality even when they were not oth consideration of possible fragmentation of minority populations 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 number of majority-minority districts. As the Court said: 25 Although the Government now disavows having had that policy . . concede its impropriety . . . the District Court’s well-document that the Department did adopt a maximization policy and followed Georgia’s first two plans . . . . In utilizing § 5 to require St minority districts wherever possible, the Department of Justice under the statute beyond what Congress intended and we have uphe 515 U.S. at 924-25. C.Equal Protection Clause of the 14th Amendment When drawing a minority district to avoid a violation of § 2 or § 5 of the Voting Rights Act, you must take care not to create a racial gerrymander that runs Equal Protection Clause of the 14th Amendment. 1.You May Consider Race in Drawing Districts Race-based redistricting is not always unconstitutional. As the in Shaw v. Reno,509 U.S. 630 (1993): [R]edistricting differs from other kinds of state decisionmaking is always aware of race when it draws district lines, just as it is aware of ag economic status, religious and political persuasion, and a varie demographic factors. That sort of race consciousness does not l impermissible race discrimination. . . . [W]hen members of a ra together in one community, a reapportionment plan that concentra group in one district and excludes them from others may reflect purposes. The district lines may be drawn, for example, to provi districts of contiguous territory, or to maintain the integrity 509 U.S. at 646 (slip op. at 14). You may even intentionally create majority-minority districts wi Protection clause. SeeBush v. Vera,517 U.S. 952, 958 (1996); DeWitt v. Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994), summarily aff’d 515 U.S. 1170 (1995). 2.Avoid Drawing a Racial Gerrymander But, when a state creates a majority-minority district without r principles,” the district will be subject to strict scrutiny and 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 cour racial gerrymander. 26 a.Beware of Bizarre Shapes The first step toward avoiding drawing a racial gerrymander is t North Carolina Congressional District 12 - 1992 The 12th Congressional District in North Carolina, as put into p was one of the most egregious racial gerrymanders ever drawn. Th miles across the state, for much of its length no wider than the pockets of African Americans all along the way. It was first at 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 fail Shaw v. Barr, 809 F. Supp. 392 (W.D. N.C. 1992), but the legal theory on whi 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 whic 509 U.S. at 647 (slip op. at 15). A reapportionment plan that includes in one district individuals same race, but who are otherwise widely separated by geographica boundaries, and who may have little in common with one another b their skin, bears an uncomfortable resemblance to political apar the perception that members of the same racial group—regardless education, economic status, or the community in which they live— the same political interests, and will prefer the same candidate perpetuating such notions, a racial gerrymander may exacerbate t racial bloc voting that majority-minority districting is sometim 27 509 U.S. at 647-48 (slip op. at 15-16). The Court said that a redistricting plan that is so bizarre on i on grounds other than race demands the same strict scrutiny undeEqual 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 ins the message that political identity is, or should be, predominan [C]utting across pre-existing precinct lines and other natural o is not merely evidentially significant; it is part of the consti as it disrupts nonracial bases of identity and thus intensifies 517 U.S. 952, 980-81 (1996). b.Draw Districts that are Reasonably Compact To avoid districts with bizarre shapes, you will want to draw di 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 intere boundaries, may pass strict scrutiny without having to defeat ri designed by plaintiffs’ experts in endless “beauty contests.” 517 U.S.at 977. To give you some idea of what the lower federal courts have cons compact,” there follows a series of “before and after” pictures in the 1992 election and then struck down, and the districts app them. They come from the states of Texas, Louisiana, Florida, an 28 Texas Congressional District 30 1992 1996 Congressional District 18 1992 1996 Congressional District 29 1992 1996 29 Louisiana Congressional District 4 1992 1996 Florida Congressional District 3 1992 1996 30 North Carolina Congressional District 12 19921998 2000 Compactness is not just a geometrical concept; it is also a poli Legislature created a Latino-majority district that ran 300 mile to Austin in Central Texas, the Court found that the Latinos in Central Texas were “disparate communities of interest” and thus district that encompassed them was not compact. League of United Latin American Citizens v. Perry,548 U.S. 399, 432-33 (2006). 31 c.Beware of Making Race Your Dominant Motive Even if the shapes of your districts are not bizarre, and even i you may nevertheless run afoul of the Equal Protection Clause if race was your dominant motive for drawing the lines the way you did. Georgia Congressional District 11 - 1992 Georgia’s 11th Congressional District, as enacted in 1992, stret but not in the 60-mile-wide swath cleared by General Sherman. R of Blacks in Atlanta, spread out to pick up the sparsely populat considerably to pick up more pockets of Blacks in Augusta and Sa Miller v. Johnson, 515 U.S. 900, 908-09 (1995). It had not been included in either of the first two plans enacte sent to the Department of Justice for preclearance. Both of tho majority districts. The Justice Department had rejected them for rejection had occurred notwithstanding that the 1980 plan had in district and that there was no evidence the Georgia Legislature Blacks in drawing the 1991 plans. The new district in the 1992 p Department’s requirement that the state maximize the number of B inclusion in the third plan was sufficient to obtain preclearanc 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 a district has a bizarre shape. The shape of the district is rel 32 necessary element of the constitutional wrong, but because it ma evidence that race was the Legislature’s dominant motive in draw lines are not so bizarre, plaintiffs may rely on other evidence 515 U.S. at 912-13. In Georgia’s case, the Legislature’s correspondence with the Jus the preclearance process demonstrated that race was the dominant th when drawing the 11District. The Court found that the Legislature had considered “t race-neutral districting principles,” such as compactness, conti subdivisions and communities of interest, but that those princip th order to give the 11 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. d.Beware of Using Race as a Proxy for Political Affiliation If you want to argue that partisan politics, not race, was your district lines, beware of using racial data as a proxy for polit tried that in the 1990s, and three of its congressional district Congressional District 30 Congressional District 18 Congressiona Under the 1990 reapportionment of seats in Congress, Texas was e congressional districts. The Texas Legislature decided to draw o in South Texas, one new African American majority district in Da new Hispanic-majority district in the Houston area (District 29) to reconfigure a district in the Houston area (District 18) to i Americans. The Texas Legislature had developed a state-of-the-a it to draw congressional districts using racial data at the cens the Texas congressional delegation and various members of the Le Congress, the Texas Legislature took great care to draw three ne that the chosen candidates could win. 33 Plaintiffs challenged 24 of the state’s 30 congressional distric federal district court struck down three, Districts 18, 29, and Vera v. Richards, 861 F. Supp. 1304 (S.D. Tex. 1994). On appeal, the state argued that the bizarre shape o was explained by the drafters’ desire to unite urban communities shape of all three districts was attributable to the Legislature districts while designing the new ones. The Supreme Court uphel contrary, holding that race was the predominant factor. The Legislature’s redistricting system had election data and oth precinct level, but it had race data down to the block level. T racial block data. The Court found that, to the extent there was as a proxy for political affiliation. It was race that predomina Bush v. Vera,517 U.S. 952, 965­ 73 (1996). The Court subjected the districts to strict scrutiny 517 U.S. at 976-83. e.Follow Traditional Districting Principles As the preceding discussion shows, one way to avoid drawing a ra 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 p Carolina case, mentioning “compactness, contiguity, and respect 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 in Miller v. Johnson,515 U.S. 900, 919-20 (1995). In the Texas case, it added “maintaining . . .Bush v. Vera,517 U.S. 952, 977 (1996). And in the 1997 Georgia case, it added “maintainin cores” and “[p]rotecting incumbents from contests with each othe Abrams v. Johnson,521 U.S. 74 , 84. These “traditional districting principles” are not found in the in the constitutions, laws, and resolutions of the several state each state in the 2000s are shown in table 8 andappendix E of NCSL’s book, Redistricting Law 2010. The Supreme Court has now mentioned all of the most common dis by the states, but there are a number of others used only by a f Before drawing any plan for your state, you will want to become requirements of your own constitution and consider whether to ad to govern your plans. 3.Strict Scrutiny is Almost Always Fatal If you do choose to subordinate traditional districting principl majority-minority district, be aware that it is unlikely your di th gerrymander is subject to strict scrutiny under the Equal Protection Clause of the 14 Amendment. 34 Shaw v. Reno,509 U.S. 630 (1993). To survive strict scrutiny, a racial classification mus narrowly tailored to serve a compelling governmental interest. Id. a.A Compelling Governmental Interest What may qualify as a “compelling governmental interest”? So fa considered remedying past discrimination, avoiding retrogression Rights Act, and avoiding a violation of § 2 of the Voting Rights governmental interests. b.Narrowly Tailored to Achieve that Interest During the 1990s and 2000s, however, no racial gerrymander was e Supreme Court to have been sufficiently narrowly tailored to ach 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); League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006); 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, 519 U.S. 978, on remand 979 F. Supp. 619 (N.D. Ill. 1997), aff’d mem. 522 U.S. 1087 (1998). Don’t assume that yours will be the firs (1)Remedying Past Discrimination Remedying past discrimination has traditionally been a justifica 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 remedi 630, 656 (slip op. at 24), and that “race-based districting, as a response to racially p is constitutionally permissible only when the state employs soun when the affected racial group’s residential patterns afford the which they will be in the majority.” 509 U.S. at 657 (slip op. at 25) (internal citations and quotations th omitted). North Carolina failed to meet this standard, and its 1 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 there was no evidence of present discrimination other than racia (2)Avoiding Retrogression Under § 5 The Supreme Court has assumed, without deciding, that avoiding r of § 5 of the Voting Rights Act would be a compelling government In Shaw v. Reno,509 U.S. 630 (1993), the Court anticipated that the state might assert on remand that complying with § 5 was a compelling governmental interest that justified the creat 35 of District 12. But the Court warned that “A reapportionment pla to the goal of avoiding retrogression if the State went beyond w avoid retrogression.” 509 U.S. at 655 (slip op. at 23). In Shaw v. Hunt,517 U.S. 899 (1996), the Court noted that, before the 1990 census, North Carolina had had first plan drawn by the state after the 1990 census had included District 12. The Court found that adding District 12 as a second th necessary in order to avoid retrogression. 517 U.S. at 912-13. Since the 12 district was not narrowly tailored to serve the state’s interest in complying wit 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 o the 1980s had included one Black-majority district. The first t Georgia Legislature after the 1990 census had included two Black on the status quo. Adding a third Black-majority district was n tailored to achieve the state’s interest in complying with § 5. 920-27. On remand, the federal district court first allowed the Georgia draw a new plan. When the Legislature failed to agree on a plan Georgia’s Second Congressional District was also an unconstituti Johnson v. Miller, 922 F. Supp. 1552 (S.D. Ga., Dec. 1, 1995). The district cour enacted plan was the product of improper pressure imposed by the embody the Legislature’s own policy choices and therefore should court’s remedial plan. The district court then imposed an entir majority district, District 4. Johnson v. Miller, 922 F. Supp. 1556 (S.D. Ga.1995). Georgia Congressional District 4 - 1996 The court’s plan was used for the 1996 election, but the distric to the Supreme Court on the ground that the court failed to give policy choices. 36 In Abrams v. Johnson,521 U.S. 74 (1997), the Supreme Court affirmed. It found that neither the Legislature’s 1991 plan, rejected by the Justice Department majority districts, nor the 1992 plan, with three Black-majority own policy choices because of the improper pressure imposed by t the district court was within its discretion in deciding it coul without engaging in racial gerrymandering. Since the last valid one Black-majority district, the district court’s one-district p of the Voting Rights Act. (3)Avoiding a Violation of § 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 t of the Voting Rights Act. The Court left the arguments on that question open f U.S. at 655-56 (slip op. at 23-24). When the case returned to the Court for a second time, after the plan to be narrowly tailored to comply with both § 2 and § 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 § 2, a plaintiff must show that a minority population is “sufficiently large and geographically compact to member district.” The Court noted that District 12 had been cal district in the Nation.” Shaw v. Hunt,517 U.S. 899, 905-06 (1996). There may have been a place in North Carolina where a geographically compact minority popula District 12 showed that District 12 was not that place. Since D “geographically compact” minority population, there was no legal to provide the remedy. 517 U.S. at 916. In the Texas case, Bush v. Vera,517 U.S. 952 (1996), the Court again assumed without deciding that complying with § 2 was a compelling state interest517 U.S. at 977, but found that the districts were not narrowly tailored to comply with § 2 because shaped and far from compact as a result of racial manipulation. minority population is not sufficiently compact to draw a compac § 2; if the minority population is sufficiently compact to draw requires the creation of a race-based district that is far from 517 U.S. at 979. The Court reached a similar result in a Texas case ten years later. League of United Latin American Citizens v. Perry,548 U.S. 399, 423-43 (2006). During the 1990s, one racial gerrymander did survive strict scru Congressional District of Illinois, the “ear muff” district in C to achieve the compelling state interest of remedying a potentia with§ 2 of the Voting Rights Act. 37 Illinois Congressional District 4 The district had been drawn by a federal district court to creat district without diminishing the African American voting strengt African American majorities. See Hastert v. Board of Elections, 777 F. Supp. 634 (N.D. Ill. 1991). Following the Supreme Court’s decision in Shaw v. Reno,509 U.S. 630 (1993), plaintiffs in Illinois attacked District 4. A different panel of the district court found that the compactne Thornburg v. Gingles applied only in determining whether a § 2 violation had occurred, not in drawing a district to remedy the violation. It found that the ear muff shape was ne with the representation that their population warranted without adjacent African American districts. It held that the Fourth Di King v. State Board of Elections, 979 F. Supp. 582 (N.D. Ill. 1996). Plaintiffs appealed. The Supreme Court vacated the judgment and court for further consideration in light of its decisions in the King v. Illinois Board of Elections, 519 U.S. 978 (1996) (mem.). On remand, the district court found that the Fourth District had achieve the compelling state interest of remedying a potential v with§ 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. 522 U.S. 1087 (1998). 38 IV. 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 eff strength of partisan minorities, such as Republicans in some sta minorities must look for protection to the Equal Protection Clause of the 14th Amendment. Modern technology, while making it practicable to draw districts equal, has also allowed the majority to draw districts that pack such a way as to minimize the possibility of their ever becoming While the federal courts have not yet developed criteria for jud redistricting plan is so unfair as to deny a partisan minority t Supreme Court 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 prepare challenging your redistricting plans on the ground that they unc the partisan minority. Davis v. Bandemer involved a legislative redistricting plan adopted by the Indian in 1981. Republicans controlled both houses. Before the 1982 e attacked the plan in federal court for denying them, as Democrat The plan had an overall range of 1.15 percent for the Senate dis House districts, well within equal-population requirements. The language minorities met the no-retrogression test of the Voting The Senate was all single-member districts, but the House includ districts and seven triple-member districts, in addition to 61 t court found the multimember districts were “suspect in terms of were “unwieldy shapes.” County and city lines were not consisten lines generally were. Various House districts combined urban an dissimilar interests. Democrats were packed into districts with fractured into districts where Republicans had a safe but not ex House testified that the purpose of the multimember districts wa Republicans as possible.” At the 1982 election, held under the challenged plan, Democratic received 53.1 percent of the vote statewide and won 13 of the 25 other Senate seats were not up for election.) Democratic candida percent of the vote statewide, but won only 43 of 100 seats. In districts, Democratic candidates received 46.6 percent of the vo The Supreme Court, in an opinion by Justice White, held that the for Indiana Democrats was justiciable, but that the Democrats ha 39 denied them fair representation. The Court denied that the Cons representation or that legislatures in reapportioning must draw possible to allocating seats to the contending parties in propor vote will be,” since, if the vote in all districts were proporti would win no seats at all. Further, if districts were drawn to g of safe seats, the minority in each district would go unrepresen [A] group’s electoral power is not unconstitutionally diminished by of an apportionment scheme that makes winning elections more dif failure of proportional representation alone does not constitute 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 frustration of the will of a majority of the voters or effective 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 hel As the Court pointed out, “the power to influence the political elections. . . . We cannot presume . . . , without actual proof elected will entirely ignore the interests of those voters [who 478 U.S. at 132. B.Can It Be Proved? How do the members of a major political party prove that they do influence the political process?” When California Republicans attacked the partisan gerrymander en legislature to govern congressional redistricting, the Supreme C of a three-judge court dismissing the suit on the ground that th they had been denied a fair chance to influence the political pr 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 Califor in ‘the political process as a whole.’ [citation omitted] There California Republicans have been ‘shut out’ of the political pro allegations that anyone has ever interfered with Republican regi voting, fundraising, or campaigning. Republicans remain free to of public concern; plaintiffs do not allege that there are, or h 40 impediments to their full participation in the ‘uninhibited, rob public debate on which our political system relies. [citation o 694 F. Supp. at 670. Further, the Court took judicial notice that Republicans held 40 and had a Republican governor and United States senator. Given also the fact that a recent former Republican governor of seven years been President of the United States, we see the fulc to be such as to belie any attempt of plaintiffs to claim that t ability to exercise potent power in ‘the political process as a paralysis of an unfair gerrymander. 694 F. Supp. at 672. During the 1990s, the Virginia state house plan and the North Ca were attacked as partisan political gerrymanders, but both attac 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). During the 2000s, attacks on the Pennsylvania and Texas congress Vieth v. Jubelirer,No. 02-1580,541 U.S. 267 (2004); League of United Latin American Citizens v. Perry, 548 U.S. 399, 416-23 (2006). In the Pennsylvania case, Justic and O’Connor expressed their desire to overrule Davis v. Bandemer. They concluded that political gerrymandering claims are nonjusticiable because no judicially d exist for adjudicating them. Justice Kennedy agreed to dismiss possibility that standards might yet be found. Justices Steven different standards. In the Texas case, Justice Kennedy conside standards, but found them wanting. League of United Latin American Citizens v. Perry, 548 US. 420-23 (2006). In a democracy, the majority does not need to have the leaders o jailed, or banished from the country, or even silenced. They do the political process—they simply out vote them. If the members of the majority party in your state are prepared participate fully in the process of drawing redistricting plans, necessary, your state should be prepared to withstand a challeng discriminate against the partisan minority. 41 V.Prepare to Defend Your Plan in Both State and Federal Courts After the 2000 census, 18 states had suits in state courts conce congressional redistricting plans; 21 states had suits in federa state and federal courts on the same plan.See National Conference of State Legislatures, “Action on Redistricting Plans, 2001-07 (visited Oct. 18, 2009) <www.senate.leg.state.mn.us/departments/scr/redist/redsum2000/act>. After the 2010 census, you had better be prepared to defend your 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 o action until the state authorities, including the state courts, the 1990s, some federal district courts properly deferred action 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 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 preliminaryorder in the legislative plan enacted by the Legislature, the federal 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. Cotlow v. Emison, 502 U.S. 1022 (1992) (mem.). After the state court issued its final orde its final hearing before adopting a congressional plan, the fede legislative plan, issued one of its own, and enjoined the secret congressional plan other than the one issued by the federal cour Emison v. Growe, 782 F. Supp. 427 (D. Minn. 1992). The federal court’s order regarding the leg appeal, Growe v. Emison, No. 91-1420 (Mar. 11, 1992) (Blackmun, J., in chambers), but t congressional plan was allowed to go into effect for the 1992 el 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 “reapportionment is primarily the duty and responsibility of the 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 th in designing those districts compels a federal court to defer. 507 U.S. at 35. 42 Rather than coming to the rescue of the Minnesota electoral proc beat the state court to the finish line, even tripping it along 507 U.S. at 37. It would have been appropriate for the federal court to have established a dea 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 congre Id. The Supreme Court reversed the federal court’s decision in its 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 Cr28 U.S.C. § 1738, requires a federal court to give the state court’s judgment 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’ by the U.S. Supreme Court on appeal from or writ of certiorari t 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 Fed Although the state court’s judgment on a redistricting plan is n attack in federal district court, the plan remains subject to co attacked in federal court for different reasons or by different See, e.g., Branch v. Smith, 538 U.S. 254, 261-66 (slip op. at 5-9) (2003); 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 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 forever binding on those parties and any others who were working Res judicata applies when the parties are the same, the cause of action is t are the same. If the parties and the issues are the same, but t “collateral estoppel” is used to describe the same concept. What this means for those who draw redistricting plans is that, decided in state court, it is open for decision in a federal cou federal court the same issue raised by different parties in stat a different conclusion. 43 D.Federal Court Must Defer To State Remedies After a federal court has determined that a state redistricting usually allow the state authorities a reasonable time to conform In the 1990s in North Carolina, Georgia, and Texas, the federal down a congressional plan as a racial gerrymander allowed the le the plan at its next session. SeeCromartie v. Hunt, 34 F. Supp. 1029 (E.D. N.C. 1998), rev’d, Hunt v. Cromartie, 526 U.S. 541 (1999); Johnson v. Miller, 864 F. Supp. 1354 (S.D. Ga. 1994), aff’d sub nom. Miller v. Johnson,515 U.S. 900 (1995); Vera v. Richards, 861 F. Supp. 1304 (S.D. Tex. 1994), aff’d sub nom. Bush v. Vera,517 U.S. 952 (1996). Only when the Georgia and Texas legislatures had failed to enact a corrected plan did the federal courts in t SeeJohnson v. Miller, 922 F. Supp. 1552 (S.D. Ga. 1995); 922 F. Supp. 1556 (S.D. Ga.aff’d sub nom. Abrams v. Johnson,521 U.S. 74 (1997); 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. 1 In contrast, the federal district court in Florida imposed a leg three hours of having struck down the plan enacted by the Legisl Supreme Court. The court’s order imposing its plan was immediat Court,Wetherell v. DeGrandy, 505 U.S. 1232 (1992) (mem.), and eventually reversed on the m without comment on the conduct of the district court in so hasti SeeJohnson v. DeGrandy,512 U.S. 997 (1994). If the state’s legislative and judicial branches fail to conform law after having been given a reasonable opportunity to do so, a remedy. Even then, however, the federal court must follow disce 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 th 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,521 U.S. 74 (1997). E.Attorney General May Represent State in Federal Court Although the U.S. Supreme Court has been unanimous in holding th 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 s follow when deferring to a state legislature whose redistricting521 U.S. 567 (1997). Florida Senate District 21 (Tampa Bay) had been challenged in fe that it violated the Equal Protection Clause of the U.S. Constit by the Florida Legislature; the Justice Department had refused t a majority-minority district in the area; the governor and legis special session to revise the plan; the state Supreme Court, per Florida Constitution before the plan could be put into effect, h 44 the Justice Department’s objection; and the plan had been used f suit had been filed in April 1994, and a settlement agreement wa November 1995. The Florida attorney general appeared representi lawyers for the president of the Senate and the speaker of the H respective bodies. All parties but two supported the settlement district court approved it. Appellants argued that the district Legislature a reasonable opportunity to adopt a substitute plan not agree. Justice Souter, writing for the majority, found that action by t necessary. He found that the state was properly represented in and that the attorney general had broad discretion to settle it legislation. 521 U.S. at 578n.4 (slip op. at 8-11). Justice Scalia, writing for the four dissenters, argued that: The “opportunity to apportion” that our case law requires the st afforded is an opportunity to apportion through normal legislati through courthouse negotiations attended by one member of each H by a court decree. 521 U.S. at 589 (slip op. at 7). Now that it is clear that federal courts must defer to redistric legislatures will want to be prepared to defend their plans in s proceedings are concluded, and even while they are in progress, defend the plans in federal court as well. In both courts, legi terms with their attorney general. 45 Table of Authorities United States Constitution: Article I, Section 2 ...........................................12 Fourteenth Amendment (Equal Protection Clause) ..............14,26,28,32,34,39,40,44 Full Faith and Credit Act 28 U.S.C. § 1738 ...............................................43 Voting Rights Act of 1965: Section 2 (codified as amended at 42 U.S.C. § 1973) ............17-20,22,24-26,37,38 Section 5 (codified as amended at 42 U.S.C. § 1973c) ...........22-24,26,35,37 Regulations: 28 C.F.R. Part 51, Appx. (2008) ................................22 52 Fed. Reg. 487 (1987).........................................24 63 Fed. Reg. 24108 (1998).......................................24 Federal Cases: Abrams v. Johnson,521 U.S. 74 (1997) ...............................14,17,34,37,44 Anne Arundel County Republican Cent. Committee v. State Administrative Bd. of Election Laws, 781 F. Supp. 394 (D. Md. 1991) ........................................13 Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U.S. 281 (1970) ................43 Bacon v. Carlin, 575 F. Supp. 763 (D. Kan. 1983), aff'd 466 U.S. 966 (1984) ..............7 Badham v. March Fong Eu, 694 F. Supp. 664 (N.D. Cal. 1988), aff'd mem., 488 U.S. 1024 (1989) ................................................................40 Bartlett v. Strickland,No. 07-689, 129 S.Ct. 1231 (2009) .............................21 Beer v. United States, 425 U.S. 130 (1976) .........................................23 46 Board of Estimate v. Morris, 489 U.S. 688 (1989) ...................................16 Branch v. Smith,538 U.S. 254 (2003) ............................................43 Brown v. Thomson, 462 U.S. 835 (1983)........................................ 14-16 Burns v. Richardson, 384 U.S. 73 (1966) ...........................................7 Bush v. Vera, 517 U.S. 952 (1996) ..........................17,25,26,28,34,35,37,44 Carstens v. Lamm, 543 F. Supp. 68 (D. Colo. 1982)...............................12,16 th Carter v. U.S. Department of Commerce,No. 02-35161, 307 F.3d 1084 (9 Cir. 2002) .......9 Chapman v. Meier, 420 U.S. 1 (1975).............................................14 Citizens Committee for Fair Congressional Redistricting, Inc. v. Tawes, 253 F. Supp. 731 (D. Md. 1966)aff'd mem. sub nom. Alton v. Tawes, 384 U.S. 315 (1966) ..................16 City of Lockhart v. U.S., 460 U.S. 125 (1985).......................................23 City of Mobile v. Bolden, 446 U.S. 55 (1980) .......................................19 City of Rome v. United States,446 U.S. 156(1980) ..................................22 Connor v. Finch, 431 U.S. 407 (1977) ..........................................14 Cotlow v. Emison, 502 U.S. 1022 (1992) (mem.) ..................................42 Cromartie v. Hunt, 34 F. Supp.1029 (E.D. N.C. 1998), rev’d, Hunt v. Cromartie, 526 U.S. 541 (1999) .........................................................44 D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983) ..............................43 David v. Cahill, 342 F. Supp. 463 (D. N.J. 1972) ..............................16 Davis v. Bandemer, 478 U.S. 109 (1986) ....................................... 39-41 Deem v. Manchin, 188 F. Supp.2d 651 (N.D. W. Va. 2001), aff’d sub nom. Unger v. Manchin, 536 U.S. 935 (2002) (mem.) ..............................................13 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) ................8 47 DeWitt v. Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994), summarily aff’d 515 U.S. 1170 (1995) ................................................................26 Dunnell v. Austin, 344 F. Supp. 210 (E.D. Mich. 1972) ...........................16 Emison v. Growe, 782 F. Supp. 427 (D. Minn. 1992),rev’d, Growe v. Emison, 507 U.S. 25 (1993 ................................................................)42 Emison v. Growe, Order, No. 4-91-202 (D. Minn. Dec. 5, 1991), vacated sub nom. Cotlow v. Emison, 502 U.S. 1022 (1992)..........................................42 Federation for American Immigration Reform (FAIR) v. Klutznick, 486 F. Supp. 564 (D.D.C. 1980, appeal dismissed, 447 U.S. 916 (1980) ..........................................9 Franklin v. Massachusetts, 505 U.S. 788 (1992)......................................9 Gaffney v. Cummings, 412 U.S. 735 (1973) ........................................14 Gantt v. Skelos, 504 U.S. 902 (1992)...........................................42 Garza v. County of Los Angeles, 756 F. Supp. 1298 (C.D. Cal.1990) .....................7 Georgia v. Ashcroft,539 U.S. 461 (2003) ..........................................23 Growe v. Emison, 507 U.S. 25 (1993) ....................................... 20,42-44 Hastert v. Board of Elections, 777 F. Supp. 634 (N.D. Ill. 1991) ........................38 Hays v. Louisiana, 936 F. Supp. 360 (W.D. La. 1996) .............................25 Johnson v. DeGrandy, 512 U.S. 997 (1994) ..................................25,43,44 Johnson v. Miller, 864 F. Supp. 1354 (S.D. Ga. 1994), aff’d sub nom. Miller v. Johnson, 515 U.S. 900 (1995) .....................................................25,44 Karcher v. Daggett, 462 U.S. 725 (1983) ....................................12,13,16 Ketchum v. Byrne, 740 F.2d 1398 (1984) .......................................21,22 King v. State Board of Elections, 979 F. Supp. 582 (N.D. Ill. 1996), vacated mem. sub nom. King v. Illinois Board of Elections, 519 U.S. 978,on remand 979 F. Supp. 619 (N.D. Ill. 1997), aff’d mem. 522 U.S. 1087 (1998) ...........................................35,38 LaComb v. Growe, 541 F. Supp. 145 (D. Minn. 1982)aff'd mem. sub nom. Orwoll v. LaComb, 456 U.S. 966 (1982) .....................................................12,16 48 Larios v. Cox, 300 F. Supp.2d 1320 (N.D. Ga. 2004), aff’d,542 U.S.947 (2004) (mem.) . . 13,14 Latino Political Action Committee v. City of Boston, 784 F.2d 409 (1st Cir. 1986) .......... 22 Lawyer v. Department of Justice, 521 U.S. 567 (1997) ............................. 44,45 League of United Latin American Citizens v. Perry,548 U.S. 399 (2006) ........... 31,37,41 Mahan v. Howell, 410 U.S. 315 (1973) ..........................................15 McGovern v. Connolly, 637 F. Supp. 111 (D. Mass 1986) ..............................7 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) ............................42 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, 521 U.S. 74 (1997) . . . 17,25,26,32-36,44 Nerch v. Mitchell, No. 3:CV-92-0095, (M.D. Pa. Aug. 13, 1992) (per curiam) . . . 43 Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder,No. 08-322, 557 U.S. ___ (June 22, 2009) ............................................22 Parsons Steel Inc. v. First Ala. Bank, 474 U.S. 518 (1986) ............................43 Pope v. Blue, 809 F. Supp. 392 (W.D. N.C. 1992), aff’d mem. 506 U.S. 801 (1992) ...... 27,41 Preisler v. Secretary of State, 341 F. Supp. 1158 (W.D. Mo. 1972) ...................... 16 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) ...................42 Reno v. Bossier Parish Sch. Bd. (Bossier Parish I),520 U.S. 471 (1997) .................24 Reno v. Bossier Parish Sch. Bd. (Bossier Parish II),528 U.S. 320 (2000) ................. 24 Republican Party of Virginia v. Wilder, 774 F. Supp. 400 (W.D. Va. 1991) ............... 41 Reynolds v. Sims, 377 U.S. 533 (1964) ..........................................14 Richmond v. J.A. Crosun Co., 488 U.S. 469 (1989) ..................................35 Ridge v. Verity, 715 F. Supp. 1308 (W.D. Pa. 1989) ............................9 Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) ...................................43 49 Scott v. Germano, 381 U.S. 407 (per curiam) ....................................42 Shaw v. Hunt, 517 U.S. 899 (1996) ......................................17,25,36,37 Shaw v. Hunt, 861 F. Supp. 408 (E.D. N.C. 1994), rev’d 517 U.S. 899 (1996) ............. 37 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) .................................... 17,26-28,34-38 Shayer v. Kirkpatrick, 541 F. Supp. 922 (W.D. Mo. 1982) aff'd sub nom. Schatzle v. Kirkpatrick, 456 U.S. 966 (1982) ............................................16 Skolnick v. State Electoral Board, 336 F. Supp. 839 (N.D. Ill. 1971) ..................... 16 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) ...................... 16 South Carolina v. Katzenbach,383 U.S. 301 (1966).................................. 22 State ex rel. Stephan v. Graves, No. 92-4097-R, 1992 WL 152251 (D. Kan. June 24, 1992) . . . 42 Stone v. Hechler, 782 F. Supp. 1116 (W.D. W.Va. 1992) ..........................13 Thornburg v. Gingles, 478 U.S. 30 (1986) ................................... 19-21,38 Turner v. Arkansas, 784 F. Supp. 553 (E.D. Ark. 1991) ............................13 United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977) . . . . . . . . . 21 Upham v. Seamon, 456 U.S. 37 (1982) ...........................................44 Vera v. Bush, 933 F. Supp. 1341 (S.D. Tex. 1996); 980 F. Supp. 251 (S.D. Tex 254 (S.D. Tex. 1997) ...........................................44 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) . . . . . . 25,34,44 Vieth v. Jubelirer,No. 02-1580, 541 U.S. 267 (2004) ................................. 41 Voinovich v. Quilter, 507 U.S. 146 (1993) ...................................... 14-16 Wesberry v. Sanders, 376 U.S. 1 (1964) ...........................................12 Wetherell v. DeGrandy, 505 U.S. 1232 (1992) (mem.) ...............................44 50 Whitcomb v. Chavis, 403 U.S. 124 (1971) ..........................................44 White v. Regester, 412 U.S. 755 (1973) ..........................................14 White v. Weiser, 412 U.S. 783 (1973) ..........................................44 Wisconsin v. City of New York, 517 U.S. 1 (1996) ....................................8 Wygant v. Jackson Bd. of Ed., 476 U.S. 267 (1986) ..................................35 Other Authorities: Bill Bishop, The Big Sort: Why the Clustering of America is Tearing Us Apart (2008) ........ 6 National Conference of State Legislatures, Redistricting Law 2010. Denver, Colo.: NCSL, 2009 ................................................................6,7,13,34 National Conference of State Legislatures, “Action on Redistricting Plans, 2001-07 (visited Oct. 18, 2009) <www.senate.leg.state.mn.us/departments/scr/redist/redsum2000/act> ...... 14,42 National Conference of State Legislatures, “Limits on Gerrymanders” (visited Oct. 18, 2009) <www.senate.mn/departments/scr/redist/Red2010/limits_on_gerrymand> ........... 6 Richard Fry, The Rapid Growth and Changing Complexion of Suburban Public Schools, Pew Hispanic Center (Mar. 31, 2009) ................................22 U.S. Dept. of Justice, “Guidance Concerning Redistricting and Retrogression Under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c,” 66 Fed. Reg. 5412 .............................18 51