1990s Redistricting Case Summaries
This publication summarizes legislative and congressional litigation resulting from the 1990 Census. The major issues and resulting judicial decisions have been provided for each case. Case citations have been provided to enable readers to locate cases of particular interest.
The summaries were written by the State Contacts of NCSL’s Redistricting Task Force in each of the 50 states. The summaries were edited for publication by Peter S. Wattson, Senate Counsel for the State of Minnesota, and NCSL staff, and were reviewed for accuracy and completeness by members of the Redistricting Task Force. NCSL wishes to thank all of these individuals for their important contributions to this project.
A paper version of this document was published by NCSL in June 1998. An electronic version, maintained by the Minnesota Senate, was published at the same time and updated as follows: New York, November 1999; Tennessee and Florida, November 2000; North Carolina, July 2003; Alabama, October 2008; Montana, January 2012. Hyperlinks were last updated November 8, 2017.
Alabama
Wesch v. Hunt, 785 F. Supp. 1491 (S.D. Ala. 1992), aff’d sub nom. Camp v. Wesch, 507 U.S. 902 (1992)(mem.); refusal to modify plan aff’d sub nom. Figures v. Hunt, 507 U.S. 901 (1993) (mem)
The district court declared unconstitutional an Alabama statute defining existing congressional districts based upon 1990 census information and following the Legislature’s failure to adopt and preclear a plan in time for the 1992 elections. The court adopted (with minor court modifications) one of six plans submitted by the parties, which the court determined to best satisfy the required considerations for redistricting plans and that best achieved population equality. The court specifically noted that the criteria for any redistricting plan must consider "compactness/contiguity; preservation of political subdivisions; maintenance of communities of interest; and preservation of the core areas of existing districts." 785 F. Supp. at 1498. The court noted the Legislature’s opportunity to adopt a plan and that the court’s intervention was due only to the Legislature’s failure to timely perform a fundamental state task. The court further noted a report, not in evidence, that at the time of the opinion, the Legislature had adopted a plan that had not been precleared. The court determined that it was without legal authority to consider the Legislature’s belatedly adopted plan and if that plan complied with constitutional requirements, to adopt that plan as the court’s plan. The court held, however, that if the Legislature’s plan was expedited and timely precleared, then the Legislature’s plan, rather than the court decreed plan should take effect. The court enjoined the defendants (state officials with significant duties in the administration of congressional elections in Alabama) from conducting congressional elections under the existing unconstitutional districting plan and from failing to conduct the 1992 congressional elections in accordance with the court plan if the legislative plan was not timely enacted and precleared to proceed without delay. The court further ordered that the court ordered redistricting plan remain in effect until the Alabama Legislature replaced it with a valid plan.
Wesch v. Hunt, No. 91-0787, 1993 WL 468747 (S.D. Ala. July 13, 1993), aff’d sub nom. Wesch v. Folsom, 6 F.3d 1465 (11th Cir. 1993), cert. denied sub nom. Sinkfield v. Wesch, 510 U.S. 1046 (1994)
Wesch filed to stay the proceedings in a state-court matter (Sinkfield v. Camp, Civil Action No. 93-689, Cir. Ct. Montgomery County) to the extent that such proceedings involved claims related to congressional redistricting previously litigated. The district court, in an opinion released July 13, 1993, and not reported, granted Wesch’s motion, enjoining prosecution of the state court action seeking redistricting. A primary contention of Wesch was to enforce the injunction entered on March 9, 1992, in Wesch v. Hunt, 785 F. Supp. 1491 (S.D. Ala. 1992). Subsequently, on July 21, 1993, (1993 WL 468669) the district court denied a motion to stay the injunction pending appeal filed by the Sinkfield/Intervenor-plaintiffs. The court expressly noted that the three-judge decision (and the court ordered redistricting plan) in Wesch v. Hunt, 785 F. Supp. 1491 (S.D. Ala. 1992) had been resolved by the United States Supreme Court in two separate appeals, each favorable to the district court’s decision. The court noted that the primary purpose of the injunction issued on July 13, 1993, was "to halt needless and repetitive litigation in state court of an issue, which has been already settled in a federal court." The court expressly noted that the congressional elections scheduled for 1994 were not in danger of being conducted under an unconstitutional plan and that no harm would result from conducting further elections under a plan held valid by the Supreme Court. Noting the delicate balance between the federal and state judicial systems, the appeal was affirmed in a published opinion, see Wesch v. Folsom, 6 F.3d 1465 (11th Cir. 1993), and the Supreme Court denied certiorari without publishing an opinion.
Hunt v. Morris, 591 So. 2d 83 (1992), appeal dismissed and remanded to trial ct. 628 So. 2d 1080 (1992).
In December 1991, the Barbour County Circuit Court ordered the Governor to issue a call to the State Legislature to convene in special session for the purpose of considering congressional redistricting. In January 1992, in a per curiam decision without citing authority or reasoning, the Alabama Supreme Court granted a motion to stay that order pending appeal. In a special concurrence, Justice Houston indicated that this appeal called upon the court to determine whether the judiciary had the power to direct the Governor to call a special session. He further voiced that probably no one in the State judiciary had that power. In March 1992, the Alabama Supreme Court dismissed the appeal and remanded it to the trial court without issuing an opinion.
Brooks v. Hobbie, 631 So. 2d 883 (Ala. 1993)
The U. S. District Court, Middle District of Alabama, certified a question to the Alabama Supreme Court substantially as follows: Does the Montgomery County Circuit Court have
2 subject matter jurisdiction to enter tentative and final implementing orders for a redistricting plan? The Alabama Supreme Court responded affirmatively by first recognizing that apportionment is primarily a legislative function and that the true question was whether the redistricting issue is a justiciable one. Stating that the Constitution required judicial intervention to ensure constitutional protections of every citizen and that when a court invalidated an apportionment statute, it could not be left without the means to order appropriate relief, the Court held that the circuit court had jurisdiction to order a redistricting plan. The Court further noted that the judiciary must act when other branches of government are remiss in their constitutional duties.
Peters v. Folsom, No. 93-T-124-N (M.D.Ala); Brooks v. Camp, No. 93-T-364-N (M.D.Ala)
In these consolidated cases, the plaintiffs alleged that the legislative district lines violated their constitutional rights by violating the one person, one vote principle and discriminating against Black voters. The proceedings were stayed on the ground that the legislative process had not run its course.
During the stay, the U.S. Supreme Court decided Growe v. Emison, 507 S. Ct. 25 (1993) reaffirming the principle that federal courts should defer to state courts regarding apportionment of state legislative districts where the State (via legislature or judiciary) had begun to address the task itself. Arguing that the federal court should not defer because the Alabama state courts lacked subject-matter jurisdiction to redistrict or reapportion the State Legislature, the Peters plaintiffs argued that the federal court should independently reach their claims. The federal court certified the question regarding jurisdiction to the Alabama Supreme Court, which held that the state circuit court had jurisdiction to enter its orders. These cases were dismissed and the motion of the Peters plaintiffs for attorneys’ fees and expenses was denied.
Sinkfield v. Bennett, No. CV-93-689-PR (Cir. Ct. Montgomery Co., Aug. 13, 1993)
The Montgomery County Circuit Court entered a Consent Decree between the Sinkfield parties and the Secretary of State approving a redistricting plan for the Alabama Legislature. The plan was precleared by the U. S. Attorney General. The court retained jurisdiction until an acceptable redistricting plan might be enacted by the Legislature.
Sinkfield v. Bennett, No. CV-93-689-PR (Cir. Ct. Montgomery Co., Nov. 20, 1997)
In 1997, pursuant to a federal district court direction, see Rice v. Smith, 988 F. Supp. 1437 (M.D. Ala. 1997), John Rice and Camilla Rice filed as intervenors in this action on issues regarding the Consent Decree Plan from 1993. The Rice contentions were that under the Plan, underpopulation in one district violated the one-person, one-vote right; that the Plan contained districts that were unconstitutional racial gerrymanders under the line of cases from Shaw v. Reno, 509 U.S. 630 (1993); and that several districts were designed to intentionally overpopulate majority White districts, thus, diluting their voting strength.
3 The court held that the intervenors could not prevail on the equal protection claim by finding that there was no evidence that an underpopulation in one district, resulting in a 10.2 percent total deviation, caused any injury given other factors, i.e., that the district was limited to one entire county and that it was the only district in the Plan that exceeded a five-percent deviation. The court limited the racial gerrymander claim to the districts where the intervenors resided and found that race, while a factor, was not a main or predominant factor that subordinated traditional, race-neutral districting principles. Lastly, the court held that the districts were within constitutionally permissible limits by finding that the deviation in one district was justified and that there was no evidence of dilution of voting strength.
Rice v. Sinkfield, No. 1970449, 732 So.2d 993 (Ala.1998) (per curiam)
The Alabama Supreme Court dismissed the appeal of the Rice intervenors in Sinkfield v. Bennet, No. CV-93-689-PR, as moot. The court reasoned that, because the next legislative election was scheduled for the year 2002, and because by that time, the report of the 2000 federal census was scheduled to be released, the elections held in 2002 and subsequent years would be governed not by the current consent judgment, but by a new districting plan that was based on the 2000 federal census.
Rice v. Smith, 988 F. Supp. 1437 (M.D. Ala., Dec. 19, 1997) (three-judge court)
Two White plaintiffs, John and Camilla Rice, challenged the legislative redistricting plan adopted by an Alabama state court in Sinkfield v. Bennett, No. CV-93-689-PR (Cir. Ct. Montgomery Co., Aug. 13, 1993), on grounds that it violated the principle of one person, one vote, that it was a racial gerrymander, and that it diluted White voting strength. The federal district court directed the Rice plaintiffs to intervene in the state-court lawsuit, Sinkfield v. Bennett, No. CV-93-689-PR (Cir. Ct. Montgomery Co.). They did so, and the state court dismissed their claims on the merits. See Sinkfield v. Bennett, No. CV-93-689-PR (Cir. Ct. Montgomery Co., Nov. 20, 1997), aff’d, Rice v. Sinkfield, No. 1970449, 732 So.2d 993 (Ala.1998) (per curiam). While their appeal to the Alabama Supreme Court was pending, the Rice plaintiffs returned to federal district court, which dismissed their complaint without prejudice on the basis of res judicata and the Rooker-Feldman Doctrine.
Thompson v. Smith, 52 F. Supp.2d 1364 (M.D. Ala. 1999)
After moving to intervene in the state-court lawsuit, Sinkfield v. Bennet, the plaintiffs in Rice v. Smith moved to add to their federal-court lawsuit several White voters who resided in legislative districts other than the district in which the Rice plaintiffs resided. The federal district court then invited the Thompson plaintiffs to also intervene in the state-court lawsuit, but they refused. After the Rice complaints had been dismissed in both the state and federal courts, the federal court ruled that, since the state court had found their claims to be moot under state law, the Thompson plaintiffs were entitled to pursue their claims in federal court. On the merits, the court ruled that the Thompson plaintiffs’ claims of unequal population and vote dilution were barred by
4 res judicata, since they were no different from the claims made by the Rice plaintiffs in state court. The court further ruled that the claim of Andrew Thompson that the senate and house districts in which he resided were racial gerrymanders was also barred by res judicata, since those districts had been attacked for the same reason by the Rice plaintiffs in state court. But the court ruled that the other Thompson plaintiffs, who resided in senate and house districts other than the ones in which the Rice plaintiffs resided, were entitled to pursue their racial gerrymander claims in federal court. The court scheduled their claims for trial.
Kelley v. Bennett, 96 F. Supp.2d 1301 (M.D. Ala. 2000), vacated and remanded with instructions to dismiss 531 U.S. 28 (Nov. 27, 2000) (No. 00-132, 00-133)
After a trial involving the districts challenged by the other Thompson plaintiffs, voters who resided in majority-White districts adjacent to majority-Black districts, the district court ruled on April 24, 2000, that four state senate districts and three state house districts were racial gerrymanders in violation of the Equal Protection Clause of the 14th Amendment. The court found it was too late in the election cycle and too burdensome to require the Alabama Legislature to redraw the districts and schedule a special legislative election in 2000, but enjoined their use in the 2002 regular election, or in any special election that might occur before then without further order of the court.
Sinkfield v. Kelley, 531 U.S. 28 (Nov. 27, 2000) (No. 00-132, 00-133)
The districts for Alabama’s Legislature had been drawn with an “acknowledged purpose [of] maximiz[ing] . . . the number of majority-minority districts.” 531 U.S. at 28. The plaintiffs, white voters who resided in majority-white districts that neighbored majority-minority districts, alleged that their (majority-white) districts were the product of racial gerrymander in violation of the Equal Protection Clause. Relying on United States v. Hays, 515 U.S. 737 (1995), the Supreme Court held that the plaintiffs lacked standing in that “they have neither alleged nor produced any evidence that any of them was assigned to his or her district as a direct result of having ‘personally been subjected to a racial classification.’” 531 U.S. at 30, quoting Hays, 515 U.S. at 745. The Court vacated the judgment of the district court and remanded the cases with instructions to dismiss the complaint.
Alaska
Hickel v. Southeast Conference, 846 P.2d 38 (Alaska 1992)
The Alaska Supreme Court found that the Governor’s reapportionment plan for Southeast Alaska violated the antigerrymandering provisions of the Alaska Constitution by failing to observe existing municipal boundaries and ignoring natural geographic boundaries by splitting all of the major islands of the Alexander Archipelago. The Court reasoned that municipalities in the state are per se socioeconomic areas. The Court found that a desire to increase Native representation in a specific district did not justify departure from the antigerrymandering provisions. A
5 reapportionment plan may minimize the antigerrymandering provisions when minimization is the only means available to satisfy Voting Rights Act requirements.
The Court found that the Governor’s plan for the Mat-Su Borough violated the antigerrymandering provisions when it divided up excess borough population among five other election districts. The Court concluded that excess population should, to the maximum extent possible, be kept together and added to another socioeconomically and compact district.
The Court found that the Governor’s plan violated the antigerrymandering provision by combining populations of Inupiaq and Athabaskan Natives in a single district. The Court found that the combination of these tribal groups did not create a district that encompasses as nearly as practicable a relatively integrated socioeconomic area.
The Court found sua sponte that the division of the Aleutian Islands into two districts violates the antigerrymandering provisions.
The Court found that determination of the population base for redistricting purposes did not require adjustment of the census population to delete nonresident military personnel if there was an adequate showing that it was not possible to accurately identify those military personnel who are nonresidents and that failure to adjust for military personnel did not introduce an urban/ rural bias.
The Supreme Court directed the Superior Court to formulate an interim plan for the approaching general election.
Arizona
Arizonans for Fair Representation v. Symington, 828 F. Supp. 684 (D. Ariz. 1992)
In February 1992, Plaintiffs, Arizonans for Fair Representation, brought suit requesting the U.S. District Court to take action to break the legislative impasse on congressional redistricting. The Arizona Senate (controlled by Democrats) and the Arizona House (controlled by Republicans) had each developed congressional redistricting plans, but unlike the state legislative redistricting plan, no agreement could be reached on a compromise plan. Given the impasse, the Court determined that the plan selected must meet three basic criteria: the Constitution, the Voting Rights Act, and “neutral principles of redistricting.” The Court further described the neutral criteria as preserving communities of interest, providing compact and contiguous districts, and protection of incumbents. 828 F. Supp. at 687. The three-judge panel rejected the plans proposed by the Senate and the House, instead drafting a Court plan based on the so-called “Indian Compromise Plan,” which had been submitted by intervener Indian tribes. The Court found that its plan was more compact, better preserved communities of interest, and avoided “the unnecessary or invidious outdistricting of incumbents.” 828 F. Supp. at 692. The Court also found that there was insufficient evidence presented by the Senate to conclude that there was
6 polarized voting in Arizona warranting remedial action under the Voting Rights Act. The Court ordered its congressional plan to be implemented for the impending 1992 election and subsequent elections through 2000, determining that as a court ordered plan, preclearance under Section 5 of the Voting Rights Act was not necessary. Defendant, Arizona State Senate, and Intervener, Hispanic Chamber of Commerce, filed separate appeals.
Arizona State Senate v. Arizonans for Fair Representation, 507 U.S. 980 (1993) (mem.)
The Arizona State Senate appealed the decision in Arizonans for Fair Representation v. Symington, 828 F. Supp. 684 (D. Ariz. 1992) on three substantive grounds. First, the Senate claimed in its appellants’ brief that the U.S. District Court plan caused a retrogression of minority voting strength because Arizona had gained a congressional seat (from five to six) and gained in minority population, but the Court created only one majority-minority district when it could have created two. Second, the Senate argued that the lower court erred in finding that there was insufficient evidence of polarized voting and, therefore, no remedial action was required under the Voting Rights Act. Finally, the Senate argued that the District Court failed to comply with the requirements of Sections 2 and 5 of the Voting Rights Act by improperly considering “neutral” redistricting factors over minority voting rights. During the pendency of the appeal, Republicans gained the majority in the Senate and had the appeal dismissed.
Hispanic Chamber of Commerce v. Arizonans for Fair Representation, 507 U.S. 981(1993) (mem.)
Interveners, Hispanic Chamber of Commerce, appealed Arizonans for Fair Representation v. Symington, 828 F. Supp. 684 (D. Ariz. 1992) on several grounds. The Hispanic Chamber of Commerce claimed in its appellants’ brief that the District Court erred in giving “good government” criteria primacy over minority voting rights. The Hispanic Chamber also argued that the lower court should have found on the evidence that racially polarized voting does exist in Arizona and that the Court erred in ordering its plan into effect until 2000 without preclearance under the Voting Rights Act. The lower court judgment was summarily affirmed by the United States Supreme Court.
Arizonans for Fair Representation, Inc. v. Symington, No. CIV 92-256-PHX-SMM,1993 WL 375329 (D. Ariz. June 19, 1992)
In February 1992, Plaintiffs, former Republican legislators, filed an action requesting that the U.S. District Court redistrict Arizona’s state legislative districts, the Arizona Legislature having failed to enact any redistricting legislation at the time the action was commenced. On February 20, 1992, the Legislature finally passed a state legislative redistricting plan (H.B. 2002) and the Court stayed further action while the plan was submitted to the Department of Justice for Section 5 preclearance under the Voting Rights Act. On June 10, 1992, the Department of Justice indicated that it objected to a portion of H.B. 2002 because it split a concentration of Hispanic voters into three districts rather than two in the southeastern part of the State. On June 16, 1992,
7 the Legislature passed a bill (S.B. 1360) designed to satisfy Justice Department objections. Three days later, the Court ordered that S.B. 1360 be implemented as an interim plan for the 1992 State Legislature elections, finding that the upcoming elections were imminent and that an emergency existed. The Court retained jurisdiction and ordered that S.B. 1360 be submitted for preclearance. The Department of Justice again refused to preclear the Legislature’s redistricting plan (Letter of Objection, August 12, 1992), effectively mandating for the first time the creation of an additional majority-minority district (primarily Hispanic) in southeastern Arizona. On December 17, 1993, the Legislature passed a third state legislative plan, including the majority-minority district required by the Justice Department, which was finally precleared on February 8, 1994. Interveners, Arizona Hispanic Community Forum, appealed.
Arizona Hispanic Community Forum v. Symington, 506 U.S. 969 (1992) (mem.)
The Hispanic Community Forum appealed the decision of the U.S. District Court that allowed the use of an unprecleared interim state legislative plan due to exigent circumstances (only fifteen days prior to the candidate nomination filing deadline). The U.S. Supreme Court summarily affirmed the lower court ruling.
Arkansas
Turner v. State, 784 F. Supp. 553 (E.D. Ark. 1991), aff’d 504 U.S. 952 (1992) (mem.)
In Turner v. State the court addressed several issues. The first issue was whether the redistricted congressional districts resulted in vote dilution. The court found that the black voters challenging the congressional districts failed to establish that the white majority voted sufficiently as a bloc to enable it to usually defeat the minority’s preferred candidate. The court further found with respect to this issue that the black voters were proposing a remedy of packing the black voters into a single district where they could not, by hypothesis, elect a representative of their own choosing, while fracturing and reducing the number of blacks in adjacent districts. The second issue was whether the redistricting violated the black voters’ Fourteenth and Fifteenth Amendment rights. The court found that the black voters did not prove that, regardless of legislative intent, the legislation had the effect of discriminating against black voters or diluting or diminishing their influence. The court also stated that states are not required by the Fourteenth and Fifteenth Amendments to take affirmative action during the redistricting process to ensure that a congressional district is created with a maximum percentage of black residents.
Harvey v. Clinton, 308 Ark. 546, 826 S.W.2d 236 (1992)
In Harvey v. Clinton the court addressed the issue of whether the Arkansas Board of Apportionment acted arbitrarily in drawing multi-member districts for the state house. The court held that the use of multi-member districts has never been held to be unconstitutional per se, and that the judicial branch cannot impose its judgment on the executive branch solely because the courts favor the use of single-member districts. Moreover, the court held that the report by the
8 Board of Apportionment was not arbitrary, and thus unconstitutional, simply because it recognized the preference of local communities to have multi-member districts.
West v. Clinton, 786 F. Supp. 803 (W.D. Ark. 1992)
In West v. Clinton the issue was whether a multi-member house district violated § 2 of the Voting Rights Act. The court held that even if an influence claim existed under § 2, the aggregated minority percentage that would exist in a single-member district was 29 percent and therefore the minority electorate would not be numerous enough to elect a representative without nonminority help. Furthermore, the court stated that there was no proof offered by the defendant that the minority electorate would have enough help to elect a different representative or that same representative would behave differently in a relevant manner with the help of the non-minority voters.
Jeffers v. Tucker, 847 F. Supp. 655 (E.D. Ark. 1994)
In Jeffers v. Tucker the court addressed the issue of voter dilution in the legislative plan. The court stated that a plaintiff seeking to establish a violation of § 2 must satisfy three preconditions set out in Thornburg v. Gingles, 478 U.S. 30 (1986). The court held that while the plaintiffs established that the minority group was politically cohesive and that the white majority voting bloc enabled it to defeat the minority’s preferred candidate, the plaintiff did not establish that the minority group was geographically compact to constitute a majority in a single-member district. To create a minority district, the lines would extend “long, slender fingers deeply to the west from the River” and therefore would not satisfy the compactness requirement of Gingles.
California
Garza v. County of Los Angeles, 918 F. 2d 763 (9th Cir. 1990)
The United States Court of Appeals for the Ninth Circuit held that actions of the Board of Supervisors of the County of Los Angeles, in intentionally splitting the Hispanic voting areas in reapportionment of supervisorial seats, resulted in a situation in which Hispanics had less opportunity than other county residents to participate in the political process and violated both the federal Voting Rights Act and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Wilson v. Eu, 54 Cal. 3d 471; 816 P. 2d 1306 (1991)
In this case (Wilson I), the Supreme Court of California held that it would appoint three Special Masters to hold public hearings and to make recommendations for reapportionment plans, in accordance with specified criteria, for 52 single-member congressional districts, 40 single-member Senate districts, 80 single-member Assembly districts, and 4 state Board of Equalization districts within the State of California.
9 Wilson v. Eu, 54 Cal. 3d 546; 817 P. 2d 890 (1991)
In this case (Wilson II), the Supreme Court of California ordered that plans recommended by the three Special Masters for congressional, Senate, Assembly, and state Board of Equalization districts be immediately made available to counties in California and be submitted to the United States Department of Justice for preclearance under the federal Voting Rights Act.
Wilson v. Eu, 1 Cal. 4th 707; 823 P. 2d 545 (1992)
In this case (Wilson III), the Supreme Court of California examined the reapportionment plans recommended by the three Special Masters for congressional, Senate, Assembly, and state Board of Equalization districts within California and, with minor changes, the court accepted and adopted each plan establishing district boundaries for the June 2, 1992, Primary Election in California.
Members of Cal. Democratic Cong. Delegation v. Eu, 790 F. Supp 925 (N.D. Cal. 1992)
The United States District Court for the Northern District of California dismissed an action by members of the House of Representatives who belonged to the Democratic Party and who were currently elected from districts in California. The action challenged the reapportionment of the congressional districts in the State of California that had been adopted by the Supreme Court of California in January of 1992. The district court also dismissed a complaint by interveners represented by the Mexican American Legal Defense and Education Fund that challenged the reapportionment of the congressional districts in California on the basis of the United States Constitution and the federal Voting Rights Act.
Benavidez v. Eu, 34 F. 3d 825 (9th Cir. 1994)
The United States Court of Appeals for the Ninth Circuit reversed the portion of the March 1992 federal district court decision that had dismissed the complaint of the interveners represented by the Mexican American Legal Defense and Education Fund, which had challenged the reapportionment of congressional districts in California. The appeals court remanded the case back to the federal district court for further proceedings consistent with its opinion.
DeWitt v. Wilson, 856 F. Supp. 1409 (E.D. Cal. (1994)
The United States District Court for the Eastern District of California held that the reapportionment plans for congressional, Senate, Assembly, and Board of Equalization districts adopted by the Supreme Court of California in January 1992 did not violate the Equal Protection Clause of the Fourteenth Amendment or Fifteenth Amendment to the United States Constitution. The district court denied the plaintiffs’ motion for summary judgment and granted the motion of the State of California for summary judgment.
10 Assembly of State of Cal. v. U.S. Dept. of Commerce, 968 F. 2d 916 (9th Cir. 1992)
The United States Court of Appeals for the Ninth Circuit affirmed the decision of the federal district court requiring the Department of Commerce to release to the Assembly of California computer tapes containing statistically adjusted figures from the 1990 census under the Freedom of Information Act.
Senate of State of Cal. v. Mosbacher, 968 F. 2d 974 (9th Cir. 1992)
The United States Court of Appeals for the Ninth Circuit reversed an action of a federal district court that had directed the Secretary of Commerce to release to the Senate of the State of California certain tapes containing census calculations for California. The appeals court held that the release of the tapes was not required by the United States Constitution, the federal census statutes, and the federal Voting Rights Act.
Colorado
In re Reapportionment of the Colorado General Assembly, 828 P.2d 185 (Colo. 1992)
In a constitutionally mandated original proceeding, the Colorado Supreme Court held that House and Senate plans drawn by the Colorado Reapportionment Commission were valid, with two exceptions: (1) the division of Pitkin County and the City of Aspen; and (2) the inadvertent split of a community of interest in the community of Perry Park in Douglas County.
The Supreme Court specifically upheld the plan for House District 60 in the San Luis Valley in south central Colorado against a challenge based on § 2 of the Voting Rights Act filed by Jennie Sanchez and others (see Sanchez v. State of Colorado, infra). The Court stated that if the Commission made a good faith effort to resolve disputed facts concerning vote dilution and applied the correct legal standard, the Court would not disturb its finding. The Court noted that the objectors’ plan for the San Luis Valley ignored natural boundaries and split seven counties, while the Commission’s plan split only one county and took into account the wishes of San Luis Valley residents to preserve the Valley intact. Accordingly, the Court concluded that the objectors had not made a showing that would support rejection of the Commission plan.
The Supreme Court also upheld the Commission plan against a § 2 challenge to House districts in northeast Denver filed by Blacks for Fair Reapportionment and against challenges based on state constitutional criteria that involved seven other areas.
In re Reapportionment of the Colorado General Assembly, 828 P.2d 213 (Colo. 1992)
The Colorado Supreme Court approved the Commission’s revised plan which cured the inadvertent split of a community of interest in Douglas County and which kept the City of Aspen whole, even though it continued to split Pitkin County. On remand, the Commission had
11 considered eight alternative plans for Pitkin County, thus providing a sufficient basis for the Court to review and understand the need for the county split.
Martinez v. Romer, Civ. Nos. 91-C-1972, 91-C-2129, and 91-C-2162 (D. Colo.) (no published opinion)
After a congressional redistricting plan was enacted and vetoed at a special session in the fall of 1991, plaintiffs filed suit against the Governor and the General Assembly. The General Assembly moved to dismiss on the grounds that the court lacked jurisdiction over the General Assembly and had no power to direct the General Assembly to act. After a second plan was enacted and vetoed during the 1992 regular session, the court appointed a special master and a third plan was enacted and signed. The court dismissed the actions without prejudice, and no ruling was ever made on the General Assembly’s jurisdictional issues.
Sanchez v. State of Colorado, 861 F. Supp. 1516 (D. Colo. 1994) (no violation of VRA § 2); reversed 97 F.3d 1303 (10th Cir. 1996); cert. denied sub nom. Colorado v. Sanchez, 117 S. Ct. 1820 (1997).
Plaintiffs were Hispanic residents of the San Luis Valley in south central Colorado who had previously filed an unsuccessful challenge to House District 60 with the Colorado Supreme Court (see In re Reapportionment of the Colorado General Assembly, supra). The federal district court held that plaintiffs failed to establish their § 2 VRA claim because: (1) their suggested district did not satisfy compactness requirements; (2) the minority group was not politically cohesive; (3) other reasons besides race may explain voting behavior; and (4) the totality of the circumstances did not establish vote dilution.
The Tenth Circuit reversed. While not quarreling with any of the district court’s findings of fact on compactness, the Tenth Circuit held that the plaintiffs’ proposed district demonstrated the possibility of a remedy. The Tenth Circuit also held that the evidence showed Hispanic political cohesiveness and Anglo bloc voting. It concluded that the district court erred in considering factors other than race to explain voting behavior. Finally, the Tenth Circuit found that the district court’s erroneous view of racial polarization and political cohesiveness prejudiced its analysis of the totality of the circumstances, and submerged critical facts into less relevant factors. The matter was remanded to the state for implementation of a remedial plan.
After the U.S. Supreme Court denied certiorari, an interim committee considered remedial plans during the 1997 interim. The committee’s recommendation, with minor changes, was adopted in bill form during the 1998 session and was signed by the Governor. House District 60 in the new plan splits four counties and includes 50.73 percent Hispanic voting age population. Plaintiffs and the State jointly asked the district court to approve the plan, and the court’s order was issued March 12, 1998.
Connecticut
12 Fonfara v. Reapportionment Commission, 222 Conn. 166, 610 A.2d 153 (1992)
Plaintiffs challenged the redistricting plan by claiming that it violates the state constitution’s “town integrity principle.” The constitution prohibits towns from being divided by the redistricting plan for the House of Representatives “except for the purpose of forming assembly districts wholly within the town.” They asked the state Supreme Court to review and correct the plan. The court said that the principal issue was whether it should overturn a plan without a prima facie showing that the plan failed to reconcile the federal constitutional principle of one person, one vote and the state constitutional principle of town integrity. The court held that the constitution does not give it superlegislative powers to write a new plan. Instead, its scope of review is limited to determining whether the plan conforms to federal and state constitutional mandates. Second, it held that the challengers did not demonstrate that towns were divided for reasons other than to meet the federal equal population requirement.
Delaware
There were no cases.
District of Columbia
District of Columbia v. U.S. Department of Commerce, 789 F. Supp. 1179 (D. D.C. 1992)
The District of Columbia brought an action against the U.S. Department of Commerce, challenging the decision of the Census Bureau to count inmates in a prison operated by the District but located in Virginia as residents of Virginia. The District Court held that the action was justiciable and that the Census Bureau’s decision was not arbitrary or capricious.
Florida
In re Constitutionality of Senate Joint Resolution 2G, 597 So.2d 276 (Fla. 1992)
In a special apportionment session that adjourned April 10, 1992, the Legislature adopted Senate Joint Resolution 2-G (S.J.R. 2-G), establishing Senate and House districts. As provided by the Florida Constitution, the Attorney General of Florida petitioned the Florida Supreme Court for a declaratory judgment determining the validity of S.J.R. 2-G. On May 13, 1992, the Florida Supreme Court held that S.J.R. 2-G did not discriminate against minorities, but the court retained jurisdiction to entertain further objections. The court also held that the plan met the equal protection standard (one person, one vote) and the Florida Constitution’s requirements that legislative districts be “either contiguous, overlapping or identical territory.” Justice Shaw dissented.
13 In re Constitutionality of Senate Joint Resolution 2G, 601 So.2d 543 (Fla. 1992)
Senate District 21, as adopted by the Florida Supreme Court
After the Florida Supreme Court approved the Senate and House plans, the Florida Attorney General submitted the plans to the U.S. Department of Justice for preclearance pursuant to Section 5 of the Voting Rights Act (42 U.S.C. § 1973c). Five Florida counties, including Hillsborough (which contains the City of Tampa), are subject to the preclearance requirements of § 5. On June 16, 1992, the Justice Department denied preclearance because there was no majority-minority district in the Tampa Bay Area. The Florida Supreme Court (which had retained jurisdiction over the case), upon being advised that neither the Governor nor the legislative leaders intended to convene a special session, undertook to redraw the state Senate plan itself. On June 22, 1992, the Florida Supreme Court adopted an amended Senate plan designed to address the Justice Department’s objection. Justices Overton and McDonald dissented.
14 DeGrandy v. Wetherell, 794 F. Supp. 1076 (N.D. Fla. 1992)
Congressional District 3, as adopted by the DeGrandy Court
The Legislature did not adopt a congressional redistricting plan either during the regular session that adjourned March 14, 1992, or during a special session that adjourned April 1, 1992. A three-judge panel then held that the congressional redistricting plan adopted in 1982 violated Article I, § 2 of the United States Constitution, the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, the one person, one vote principle, and the Voting Rights Act of 1965. On May 29, 1992, the court ordered the state to conduct the 1992 congressional election and subsequent congressional elections in accordance with a redistricting plan adopted by the court.
DeGrandy v. Wetherell, 815 F. Supp. 1550 (N.D. Fla. 1992), rev’d as to House plan and aff’d as to Senate plan sub nom. Johnson v. DeGrandy, 114 S. Ct. 2647 (1994)
Miguel DeGrandy, et al., and the U.S. Department of Justice attacked portions of the Senate and House redistricting plans, alleging that they failed to maximize the ability of African-American and Hispanic voters in Dade and Escambia Counties to elect candidates of their choice. The parties settled the claim regarding Escambia County, and the court approved a proposed consent judgment realigning House districts in that county.
The voting-age population of Dade County is 50% Hispanic, 32% white, and 16% African-American. S.J.R. 2-G provides for 5 Senate districts wholly within Dade County (3 with Hispanic majorities, 1 with an African-American majority, and 1 with a white majority) and 2
15 that cross into adjoining counties (1 with an African-American controlling plurality and 1 with a white majority). Similarly, S.J.R. 2-G provides for 17 House districts wholly within Dade County (8 with Hispanic majorities, 4 with African-American majorities, and 7 with white majorities) and 3 that cross into adjoining counties (1 with an Hispanic majority and 2 with white majorities). On July 1, 1992, the 3-judge panel announced its decision from the bench, finding that the Senate plan did not violate § 2, but that the House plan did violate § 2 because more than nine Hispanic districts could be drawn in South Florida without having a regressive effect on African-American voters. One hour after the liability judgment was announced, remedial proceedings commenced. The plaintiffs introduced a new plan that reshaped the boundaries of 31 House districts, and less than three hours after the remedial proceedings began, the court ordered implementation of that plan, notwithstanding objections by the state and other parties that the court first permit scrutiny of the new plan and consideration of other remedial options. On July 16, 1992, the U.S. Supreme Court stayed the district court’s order.
On July 17, 1992, the district court issued an opinion concluding that the Senate plan violates § 2 of the Voting Rights Act but is nevertheless the best remedy to “balance the competing minority interests in Dade County and the South Florida area.” The court concluded that the House plan violates § 2 of the Voting Rights Act, because it impairs the ability of Hispanic voters to elect candidates of their choosing in two districts containing high concentrations of recent Hispanic immigrants to the country. The court held that the plan proposed by the plaintiffs “best remedies the dilution of the Hispanic vote in South Florida while advancing the interests of African-Americans in South Florida” and while minimizing the “ripple effect” or displacement caused by redistricting.
Johnson v. DeGrandy, 114 S. Ct. 2647 (1994)
The state appealed the district court’s judgment that upended the House plan, and the United States and the DeGrandy plaintiffs appealed the district court’s judgment that upheld the Senate plan. The Supreme Court affirmed the Senate plan and reversed the district court’s judgment that the House plan violated § 2. The Supreme Court held that minority groups constituted voting majorities in numbers of districts substantially proportional to their share in the population and that the totality of circumstances did not support a finding of dilution. 114 S. Ct. at 2658-59. Justice Souter said in his opinion for the Court, “Failure to maximize cannot be the measure of § 2.” 114 S. Ct. at 2660. Indeed, even a failure to achieve proportionality does not, by itself, constitute a violation of § 2. 114 S. Ct. at 2656-57.
Conversely, achieving proportionality, while establishing a strong indication that minority voters have equal opportunity, does not provide safe harbor against vote dilution claims. That, the Court said, would ignore the clear command of the statute that the question of whether minority voters have been given an equal opportunity to elect representatives of their choice must be decided based on “the totality of the circumstances” rather than on any single test. It would encourage drafters to draw majority-minority districts to achieve proportionality even when they were not
16 otherwise necessary, and would foreclose consideration of possible fragmentation of minority populations among other districts where they were not given a majority. 114 S. Ct. at 2660-61.
The Court rejected the Justice Department’s argument that proportionality of a statewide plan should be considered only on a statewide basis. Rather, the Court said, the choice of whether to evaluate the plan on a statewide basis or with reference to a particular region was left to the parties. In this case, the plaintiffs had chosen to attack the plan in the Dade County area, and all the evidence of both sides was directed to its proportionality in that area. 114 S. Ct. at 2662.
Justices Thomas and Scalia dissented, on grounds that an apportionment plan may not be challenged under § 2.
Florida House of Representatives v. United States Department of Commerce, 961 F.2d 941 (11th Cir. 1992)
The Florida House of Representatives brought action against United States Department of Commerce, seeking release of adjusted block level census data under the Freedom of Information Act. The United States District Court for the Northern District of Florida entered judgment in favor of the state (No. TCA 91-40387-WS). On appeal, the 11th Circuit Court of Appeals held that the data sought were within the Department’s scope of the deliberative process privilege and that the privilege had not been waived.
Sullivan v. Smith, (M.D. Fla. 1992), mandamus denied sub nom. In re Sullivan, 113 S. Ct. 1369 (1993)
Plaintiff attacked the configuration of Florida’s third congressional district. On August 24, 1992, a three-judge panel in the United States District Court for the Middle District of Florida abstained from exercising jurisdiction, on grounds that a three-judge panel in the United States District Court for the Northern District of Florida had implemented the challenged redistricting plan and the court’s judgment was pending appeal before the United States Supreme Court.
Johnson v. Smith, 1994 WL 907596 (N.D. Fla. 1994)
Plaintiffs alleged that the congressional districting plan was unconstitutional under the decision in Shaw v. Reno, 113 S. Ct. 2816 (1993) and sought a preliminary injunction to set aside Florida’s congressional districts for the 1994 elections. On July 18, 1994, the United States District Court for the Northern District of Florida declined to enter a preliminary injunction because such action “would inevitably disrupt an election process well underway.”
Johnson v. Mortham, 915 F. Supp. 1529 (N.D. Fla. Nov. 20, 1995)
On November 20, 1995, following the Supreme Court’s decision in Miller v. Johnson, the federal district court found that Florida’s third congressional district, which was adopted by the same
17 court (see, DeGrandy v. Wetherell, 794 F. Supp. 1076), constituted a racial gerrymander and therefore was subject to strict scrutiny. The court found that the DeGrandy court lacked the constitutional authority to adopt a permanent congressional redistricting plan. The court “rejected the defendant’s contention that the claim was barred under the doctrine of collateral estoppel” because the issue of racial gerrymandering under Shaw v. Reno, 113 S. Ct. 2816 (1993) “had not been actually raised, litigated or adjudicated” in the prior case. The court also allowed limited discovery on the issue of whether Florida’s third congressional district passed strict scrutiny analysis and held that the plaintiffs were not entitled to a preliminary injunction. Circuit Judge Hatchett dissented.
Johnson v. Mortham, 926 F. Supp. 1460 (N.D. Fla. Apr. 17, 1996, as modified June 6, 1996)
Applying strict scrutiny, the court found that the state did not have a compelling interest in drawing a race-based plan. The African-American population in the district was not sufficiently compact to make out a violation of § 2 of the Voting Rights Act, nor was there sufficient evidence of present discrimination to provide a “strong basis in evidence” that a race-based district was needed to remedy the effects of past discrimination. The court also held that the district was overly burdensome on voters and therefore not narrowly tailored . The court gave the Florida Legislature until May 22, 1996, to draw a new plan. Circuit Judge Hatchett dissented.
Johnson v. Mortham, 1996 WL 297280 (N.D. Fla. May 31, 1996)
Congressional District 3, as enacted by 1996 Legislature Well in advance of the May 22 deadline, the Legislature enacted a congressional plan on May 2, 1996. The district court ordered that the newly enacted plan will serve as an interim plan for the 1996 elections and thereafter until the Florida Legislature adopts another redistricting plan or
18 until further order of the court. The court closed the case and provided that challenges to the constitutionality of the legislatively enacted plan may be brought in a separate lawsuit.
Scott v. U.S. Dept. of Justice, 920 F. Supp. 1248 (M.D. Fla. 1996), aff’d sub nom. Lawyer v. Dept. of Justice, 117 S. Ct. 2186 (1997)
Senate District 21, as adopted by Scott Court Florida Senate District 21 (Tampa Bay), which had been adopted by the Florida Supreme Court in 1992 to address objections interposed by the U.S. Department of Justice under § 5 of the Voting Rights Act, was challenged in federal court on grounds that its configuration violated the Equal Protection Clause of the United States Constitution. The complaint was filed in April 1994. In June of 1995, the U.S. Supreme Court issued its decision in Miller v. Johnson (515 U.S. 900). In response, the state parties chose to try to avoid further costly and divisive litigation by attempting to settle the case. In July all the parties agreed to the appointment of a mediator, and the court directed the state parties to file monthly reports of any formal actions initiated by public officials to resolve the case. The mediation concluded without a resolution, but the parties continued discussions on their own and a settlement agreement was presented for court approval in November 1995. The court held a fairness hearing at which the State of Florida, the Florida Senate, the Florida House, the Florida Secretary of State, the Florida Attorney General, the U.S. Department of Justice, the defendant-intervenors, and all of the plaintiffs but one appeared in support of the remedial plan. The state documented how the remedial plan had been designed to cure the objection that the Florida Supreme Court’s plan had allowed other districting principles to be subordinated to race. The state showed that the low-income residents of the district regard themselves as a community and that, in terms of compactness and splitting of county lines, the new District 21 is in line with a host of other Florida legislative districts that have no substantial minority population. In March of 1996 the district court approved the plan. The court held that
19 participants could propose resolutions to an action without a dispositive, specific determination of a controlling constitutional issue and that the proposed remedial district was not a product of race-based districting in violation of the equal protection clause.
Lawyer v. Dept. of Justice, 117 S. Ct. 2186 (June 25, 1997)
Appellants argued that the district court had erred in not affording the Legislature a reasonable opportunity to adopt a substitute plan of its own. The Supreme Court held that the right of the state to have an adequate opportunity to make its own redistricting choice was satisfied when the state elected to be represented, in the district court action, by its attorney general, who has specific authority to propose and enter into settlement agreements on behalf of the state. The Court also held that the plan approved by the district court “did not subordinate traditional districting principles to race” and that the district court did not commit clear error in approving the proposed district. Justices Scalia, O’Connor, Kennedy, and Thomas dissented (“opportunity to apportion” must mean through normal legislative processes, not through courthouse negotiations followed by a court decree).
Fouts v. Harris, 88 F. Supp.2d 1351 (S.D. Fla. 1999), aff”d sub nom. Chandler v. Harris, 529 U.S. 1084 (2000) (mem.)
On April 2, 1998, Fouts, et al., challenged three congressional districts (17, 18 and 23) and two Senate districts (30 and 40) in federal court on grounds that their configurations violated the Equal Protection Clause of the U.S. Constitution by creating a scheme to ensure the election of Black and Hispanic candidates. The plaintiffs voluntarily dismissed their complaint as to senate districts 30 and 40. During the motion hearing on October 12, 1999, the plaintiffs dismissed their complaint regarding congressional district 17. On October 25, 1999, the court dismissed the remainder of the case based on the equitable defense of laches (the plaintiffs' five-year delay in bringing the suit was inexcusable; any court-ordered redistricting before the 2000 census would cause voter confusion and would require use of outdated census figures). On April 24, 2000, the U.S. Supreme Court affirmed the judgment without opinion.
20 Georgia
Johnson v. Miller, 864 F. Supp. 1354 (S.D. Ga. 1994), aff’d sub nom. Miller v. Johnson, 515 U.S. 900 (1995) (“Johnson I”)
Congressional District 11
In Johnson I, the 11th congressional district was declared unconstitutional as a racial gerrymander. The Georgia General Assembly was unable to agree on a new plan in the 1995 special session, although they did reapportion the House and Senate on the correct theory that such plans were infected with the same unconstitutional elements.
21 Johnson v. Miller, 922 F. Supp. 1552 (S.D. Ga. 1995) and 922 F. Supp. 1556 (S.D. Ga. 1995) (“Johnson II”), aff’d sub nom. Abrahms v. Johnson, 117 S. Ct. 1925 (1997)
In Johnson II, the remedy case, the district court had to draw a new plan and in the process declared the 2nd congressional unconstitutional for the same reasons as in Johnson I. The new plan had one instead of three minority districts, although it had two influence districts. This map was affirmed by the Supreme Court.
Congressional District 4 - 1996
Johnson v. Miller, No. CV196-040 (N.D. Ga., complaint filed ______, 1996) (“Johnson III”)
In Johnson III in 1996, Georgia was also sued over its state house and senate districting plans as passed in the 1995 special session. The plaintiffs argued that the legislative remedy did not go far enough in eliminating unconstitutional racial gerrymanders and the Justice Department argued that it went too far. That case was settled by consent order between the parties after court ordered mediation. The agreed upon plan reduced the number of minority districts and was passed by the General Assembly and precleared by the Justice Department.
United States v. Georgia, No. 1:96-CV-700-JTC (N.D. Ga., complaint filed ______, 199_)
The United States sued to enjoin Georgia from implementing the “unprecleared” 1995 special session House and Senate plans. They won the preliminary injunction, but the case ultimately became moot with the consent order in Johnson III and the resulting preclearance.
22 Hawaii
There were no cases.
Idaho
Miller v. Cenarrusa, (4th Jud. Dist.)
Before the Legislature had enacted a redistricting plan, plaintiff alleged that the Legislature was at an impasse and that judicial intervention was necessary. When the Legislature enacted a plan, the case was dismissed.
Idaho Hispanic Caucus v. State, (D. Id. Dec. 10, 1992)
Plaintiffs sought to redraw the legislative districts in Canyon County to concentrate a higher percentage of Hispanics in a single district. The district that the plaintiffs proposed would not have produced a majority of Hispanic voters and, therefore, the case was dismissed for failure to state a claim upon which relief could be granted.
Illinois
People ex rel. Burris v. Ryan,147 Ill.2d 270, 588 N.E.2d 1023; 588 N.E.2d 1033 (Ill. 1991), cert. denied sub nom. Gardner v. Ryan, 504 U.S. 973 (1992), reh’g denied 505 U.S. 1238 (1992), pet. to vacate judgment denied 158 Ill.2d 469, 634 N.E.2d 1066 (1994)
A Republican legislative redistricting map was approved by the Illinois Redistricting Commission (5-4) and filed with the Secretary of State. The State Attorney General appealed from adoption of that plan to the Illinois Supreme Court. The Supreme Court first remanded (5-2) to the Commission for further proceedings because they had been presented with insufficient facts to “ascertain with certainty whether the district lines meet legal guidelines.” The court had found that several districts did not meet constitutionally mandated requirements for compactness and racial dilution.
After further hearings, the Commission revised its map. A second map was considered by the commission. Both maps were presented to the Court. Indicating that the Court did not have the resources to draw its own map, the Court proceeded to condemn the unique process of redistricting used in Illinois: “ W]e do not find that a lottery or a flip of a coin is in the best interests of anyone except the party which has won the toss. The rights of the voters should not be part of a game of chance.” The Court held that “the parties opposing the [Commission’s] map must establish that not only their map or maps are superior, but that the Commission map is against the manifest weight of the evidence.” The Court then ruled (4-3) that the Commission’s
23 map was valid. The two dissenting opinions supported, respectively, drawing a court determined redistricting map and holding that the tie-breaking procedure set out in the Illinois Constitution violates the due process clause of the Fourteenth Amendment to the U.S. Constitution.
The Court denied, over vigorous dissents, a petition to vacate the judgment upholding the Republican map. The judgment was challenged after revelations concerning the political ambitions of the justice who cast the deciding vote. The justice (a life-long Democrat) was appointed to fill a vacancy on the Court, but decided to run for the Court as a Republican because (in his own words) he “may have been ticked off at the Democratic party for not asking me if I wanted to run . . . .”
Legislative Redistricting Commission v. LaPaille, 786 F. Supp. 704 (N.D. Ill. 1992) (legislative plan approved), 792 F. Supp. 1110 (N.D. Ill. 1992) (motion for new trial denied), aff’d sub nom. Gardner v. Illinois Legislative Redistricting Commission, 506 U.S. 948 (1992) (mem.)
The Illinois Legislative Redistricting Commission and its Republican majority sought a declaration that their plan complied with relevant federal and state laws. A group of African American and a group of Hispanic voters filed counterclaims after the Illinois Supreme Court upheld the Republican map. The three-judge panel allowed some of the minority voters counterclaims to proceed, ruling that the federal case was not barred by either res judicata or the Rooker-Feldman doctrine because the Illinois Supreme Court did not clearly consider, nor make any findings concerning the Voting Rights Act or the Fourteenth and Fifteenth Amendments.
The Court addressed two issues under the Voting Rights Act: the adequacy of the minority “super-majority” districts in the Republican map and allegations of fracturing of minority influence in downstate legislative districts. In both issues, the Court sided with the expert witness backing the Republican map over the experts called by the minority voters.
The Court found that the map drawn by the Republican majority of the commission did not have a discriminatory effect, nor did the commission have a discriminatory motive. The Court held, therefore, that the Republican map did not violate the equal protection rights of the minority voters under the Fourteenth Amendment or their voting rights under the Fifteenth Amendment.
Hastert v. Board of Elections, 777 F. Supp. 634 (N.D. Ill. 1991) (congressional plan adopted), 794 F. Supp. 254 (N.D. Ill. 1992) (attorneys’ fees denied)
Illinois lost two Congressional seats under reapportionment following the 1990 census. The Illinois General Assembly failed to approve a redistricting plan for the Illinois Congressional delegation. Thus, a three-judge panel declared the map adopted in 1981 unconstitutional. Two sets of plaintiffs filed competing maps with the Court. Either map would have satisfied the relevant constitutional and legal criteria if they had been passed by the General Assembly and signed by the Governor. In the absence of such a legislatively approved map, the Court decided between the two maps on the basis of the relevant constitutional and legal criteria.
24 The Republican-sponsored map was found to have a more precisely equal distribution of population (two districts had one more person than the ideal of 571,530). The Democratic plan had an overall range of 17 persons (from a high of nine above to eight below the ideal). On the basis of this neutral criterion, the Republican map was preferred. The Court also found that the Republican map had a slightly higher percentage of minorities in the four super-majority districts proposed by both maps (always a difference of less than one percent). The irregularly shaped Hispanic super-majority district survived scrutiny and was supported by all parties.
The Court rejected challenges to the Republican map based on “influence district,” “political fairness,” or “community of interest” grounds. The Democratic challenges to the Republican map on these issues were not, in the Court’s opinion, backed by sufficient evidence or adequate legal precedent. The Court also rejected a challenge concerning the border between two African American super-majority districts. The border dispute concerned intraparty factions and not partisan, racial, or ethnic concerns protected under constitutional or federal legal analysis.
Tucker v. U.S. Department of Commerce, 953 F.2d 160; 958 F.2d 1411 (7th Cir. 1992), cert. denied 506 U.S. 953 (1992)
The Seventh Circuit Court of Appeals, in an opinion by Judge Posner, agreed with a federal district court that the plaintiffs had no right to an injunction concerning the methods used by the Commerce Department in the 1990 census. While the plaintiffs might have been able to make out a case for Article III standing, they failed under the “intended plaintiff” test to demonstrate that they had been given the right to litigate the issues they raised. The opinion concluded, “a case about statistical methodology is a case whose gears fail to mesh with any judicially enforceable federal rights.”
25 PAC for Middle America v. State Board of Elections, No. 95 C 827, 1995 WL 571887 (N.D. Ill. Sep. 22, 1995) (motion to dismiss denied) 1995 WL 571893 (N.D. Ill. Sep. 22, 1995) (motions to intervene granted), decided sub nom. King v. State Board of Elections, 979 F. Supp. 582 (N.D. Ill. 1996), judgment vacated sub nom. King v. Illinois Board of Elections, 117 S. Ct. 429 (1996) (mem.)
Congressional District 4
Following the Supreme Court’s decision in Shaw v. Reno, 509 U.S. 630 (1993), citizen plaintiffs in Illinois attacked the “ear muff” Fourth Congressional District in Chicago under the Equal Protection Clause. The district had been drawn by the federal district court in Hastert v. Board of Elections, 777 F. Supp. 634 (N.D. Ill. 1991) to create an Hispanic-voting-majority district without diminishing the African American voting strength in three adjacent districts with African American majorities. When forced to review the prior decision in the light of Shaw and Miller v. Johnson, 515 U.S. 900 (1995), another three-judge court adopted the findings of the Hastert panel but gave no deference to the Hastert panel on the Equal Protection claim. The Court
26 rejected the Democratic National Committee’s contention (in an amicus brief) that Shaw and Miller do not apply to court-ordered redistricting maps, but only to legislatively-drawn maps.
The Court found that “racial considerations predominated in the configuration of” the district, subjecting it to strict scrutiny analysis (citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)). The Court, however, held that the district’s configuration served a compelling state interest, namely, redressing “an established Section 2 violation” against the Hispanic community in Chicago. Deferring to the balancing of the Hastert court, the panel determined that the district was a narrowly-tailored remedy. The Court concluded that the district did not violate the Equal Protection Clause.
King v. Illinois Board of Elections, 117 S. Ct. 429 (1996) (mem.)
Plaintiffs appealed. The Supreme Court vacated the judgment and remanded to the district court for further consideration in light of its decisions in the North Carolina and Texas congressional district cases, Shaw v. Hunt, 517 U.S. 899 (1995) and Bush v. Vera, 517 U.S. 952 (1996).
King v. State Board of Elections, 979 F. Supp. 619 (N.D. Ill. 1997), aff’d 118 S. Ct. 877 (1998) (mem.)
On remand, the federal district court again found that the Fourth Congressional District survived strict scrutiny. The Court stated that according to its reading of Supreme Court precedent “remedying a potential violation of or achieving compliance with § 2 [of the Voting Rights Act] is a compelling state interest.” The Court then analyzed its prior ruling under the newly-devised test for narrow tailoring of districts under § 2. Consideration of race in the drawing of the Fourth District, the Court concluded, was “no more than reasonably necessary to fulfill its remedial purpose” and thus was narrowly tailored. Therefore, District 4 did not violate the Equal Protection Clause.
This time, on appeal, the Supreme Court summarily affirmed.
Indiana
There were no cases.
Iowa
Brown v. Iowa Legislative Council, 490 N.W.2d 551 (Iowa 1992)
The Iowa Supreme Court upheld the decision of a state district court that the Legislative Council was not required to provide to a citizen taxpayer associated with an organization called Iowans against Gerrymandering access to geographic, political, and population databases created by the
27 Iowa Legislature’s redistricting software and database vendor, Election Data Services, Inc. The databases were created for and purchased by the General Assembly for use in legislative redistricting and the computer program developed by the vendor interrelated the different forms and sources of information. The database was encrypted, or coded, as required by contract with the original creator of the software. The information or raw data used in the databases was public information and was otherwise available to the plaintiff. The Supreme Court held that the computer databases were a trade secret of the vendor who prepared them.
Kansas
In re: Petition of Stephen, 251 Kan. 595, 833 P.2d 1017 (1992) (legislative plan approved), 251 Kan. 597, 836 P.2d 574 (1992) (opinion)
The Kansas Supreme Court, in a constitutionally mandated review, found that the 1992 state House and Senate redistricting plans were valid under both the US and Kansas constitutions. The court examined the plans and found no: 1) violation of the one person-one vote principle; 2) basis to reject the plan because communities of interest or political entities had been split; or 3) violation of Section 2 of the Voting Rights Act.
State ex rel. Stephan v. Graves, 796 F. Supp. 468 (D. Kan. 1992)
Based primarily on Karcher, the court ruled a congressional district plan with a population deviation of .94 percent unconstitutional because it failed to achieve population equality. The court specifically rejected maintenance of whole counties in each congressional district as justification for the higher population deviation. Since the Legislature had adjourned and could not reconvene to adopt a new plan in time for the upcoming election cycle, the court adopted an alternative plan with an overall deviation of 0.01 percent (69 people). That plan was one of three with population deviations below 0.34 percent, but was chosen by the court because it was the one most similar to the plan enacted by the Legislature and signed into law by the Governor.
Kentucky
Fischer v. State Board of Elections, 847 S.W.2d 718 (Ky. 1993); “Fischer I”
Joseph M. Fischer, a resident of Campbell County, filed suit in Campbell Circuit Court challenging the redistricting of the three most northern Kentucky counties, alleging that the redistricting plan violated Section 33 of the state Constitution. The defendants challenged venue, arguing that the suit should have been brought in Franklin County, which includes the capital city. The trial court accepted venue, but on appeal, the Court of Appeals held that proper venue was in Franklin County. The Supreme Court reversed the Court of Appeals, finding that the county in which the injury occurs controls the issue of venue, not the county where the statute was adopted.
28 Fischer v. State Board of Elections, 879 S.W.2d 475 (Ky. 1994); “Fischer II”
Section 33 of the state Constitution provides that “The . . . General Assembly . . . shall divide the state into thirty eight Senatorial Districts and one hundred Representative Districts, as nearly equal in population as may be without dividing any county, except where a county may include more than one district . . . .” In “Fischer II,” Joseph Fischer challenged the General Assembly’s redistricting plan, which divided 48 of the state’s 120 counties in the House and 19 counties in the Senate. The Supreme Court concluded that, “as between competing concepts of population equality and county integrity, the latter is of at least equal importance.” The Court held that Section 33 mandates that reapportionment be accomplished by dividing the fewest number of counties possible while maintaining a maximum deviation of plus or minus five percent from the ideal population of a legislative district. The Court enjoined the conduct of any election under the redistricting plan after January 3, 1995.
State Board of Elections v. Fischer, 910 S.W.2d 245 (Ky. 1995); “Fischer III”
A state representative resigned in August 1995, creating a vacancy in office. The State Board of Elections sought an amendment of the court’s permanent injunction to permit a special election. The Supreme Court declined, reiterating its opinion declaring the unconstitutionality of the 1991 redistricting plan. It pointed out that 17 months had passed since the “Fischer II” decision, with no acceptable redistricting plan having been enacted by the General Assembly.
Note: In August 1995, the General Assembly, in Special Session, enacted both Senate and House redistricting plans, but the House bill was vetoed by the Governor after the House had adjourned sine die. Campbell Circuit Court found the Senate plan unconstitutional on the ground that it was not accompanied by a House plan, and was therefore incomplete.
Jensen v. State Board of Elections, 96-SC-291-TG (1997) (to be published)
The 1996 General Assembly enacted a redistricting plan with an effective date of January 11, 1996. The House plan contained a population within the plus-or-minus five percent deviation range, and split only 22 counties, the minimum number that could be divided. On appeal to the Supreme Court challenging a Franklin Circuit Court judgment that the 1996 Act was constitutional, Representative Thomas Jensen, the minority floor leader of the House, challenged the plan on the basis that the plan did not create a whole district within either Pulaski or Laurel (“Republican”) Counties, even though both counties contained population large enough to accommodate a whole district. (Neither did Christian County, a “Democratic” county.) Pulaski and Laurel Counties were both split into five House districts.
Jensen requested that the Court reconsider “Fischer II” and interpret Section 33 to require the division of a minimum number of counties only after each county large enough to accommodate a whole district is awarded the maximum number of whole districts that can be accommodated by its population. Jensen’s House Bill would have divided 30 counties to accomplish this result.
29 The Court, interpreting the proceedings and debates of the 1890 Constitutional Convention, determined that the “delegates did not intend to guarantee that a county be represented by a resident of that county.”
Further, Jensen relied on an observation contained in footnote 5 of “Fischer II” which noted: “[W]e can scarcely conceive of a circumstance in which a county or part thereof which lacks sufficient population to constitute a district would be subjected to multiple divisions.” The Court admitted that “what we thought was scarcely conceivable has proven to be unavoidable.”
In response to Jensen’s suggestions of political gerrymandering, the Court recognized that: “[A]pportionment is primarily a political and legislative process. Our only role . . . is to ascertain whether a particular redistricting plan passes constitutional muster, not whether a better plan could be crafted.” In upholding the redistricting plan, the Court determined that the plan satisfied the requirements of Section 33 and the mandate of “Fischer II.”
30 Louisiana
Hays v. Louisiana, 839 F. Supp. 1188 (W.D. La. 1993), vacated and remanded for further consideration in light of Legislature’s second congressional plan 114 S. Ct. 2731 (1994) (mem.)
The congressional plan enacted by the Legislature included two majority-minority districts. District 4 was a Z-shaped creature that zigzagged through all or part of 28 parishes and five of Louisiana’s largest cities. It was attacked by plaintiffs who lived in the district. After the plan had been used for the 1992 election, it was struck down by the federal district court.
Congressional District 4 - 1992
31 Hays v. Louisiana, 862 F. Supp. 119 (W.D. La. 1994)
The Legislature then enacted a new plan for use in the 1994 election. District 4 was substantially altered so that instead of a “Z,” it was more of a backslash, stretching from the northwest corner of the state, through Baton Rouge, southeast to New Orleans. Plaintiffs amended their complaint to attack the new District 4. The court likewise struck down the new district and substituted a plan of its own. The Supreme Court stayed the order of the district court pending appeal. Hays v. Louisiana, 115 S. Ct. 31 (1994).
Congressional District 4 - 1994
U.S. v. Hays, 115 S. Ct. 2431 (1995)
In June of 1995, the Supreme Court vacated the decision of the district court. It noted that the change in the shape of District 4 between the 1992 and 1994 elections had removed the plaintiffs from the district. Not living in the district, they did not have standing to complain about any representational harm the racially gerrymandered district lines might be causing.
32 Hays v. Louisiana, 936 F. Supp. 369 (W.D. La.1996)
A new complaint was filed by plaintiffs who lived in District 4. The federal district court again ruled the plan invalid and imposed the plan it had drawn in 1994. The Louisiana Legislature enacted the court’s plan, but the Justice Department, still insisting on maximizing the number of majority-minority districts, denied the plan preclearance. Since the Legislature’s plan could not be put into effect without preclearance, the court’s plan (which was identical) was used as an interim plan for the 1996 election.
Congressional District 4 - 1996
Maine
In re 1993 Apportionment, No. SJC-93-229 (Me. Sup. Jud. Ct. June 29, 1993) (unpublished)
In the absence of a legislatively enacted apportionment plan for the Legislature and Congress, the State Supreme Judicial Court apportioned districts under provisions of the Maine Constitution. The Court promulgated a schedule inviting public submissions and also issued a preliminary plan of its own that adhered to state constitutional requirements of population equality, contiguity and compactness, and adherence to municipal and county lines. The Court also held a public hearing. During the Court’s review of submitted plans, efforts were made to focus on constitutional standards and attempts were made to eliminate partisan elements that the Court found in its own preliminary plan.
According to the Court’s Final Order, the Court’s final House plan “eliminated three potential primary contests between incumbent Democrats, converted one potential three-way Democratic primary into a two-way Democratic primary and a potential general election contest between an
33 incumbent Republican and an incumbent Democrat.” The Court reduced the total percentage population deviation and lowered the mean deviation from its preliminary plan as well as from alternative plans presented by the two major political parties.
In the Senate, the Court adopted many changes to its preliminary plan presented by the Democratic Party. The Court found that the Democratic suggestions resulted in more compact districts with a lower total percentage deviation.
Maryland
Anne Arundel County Republican Central Committee v. State Administrative Board of Election Laws, 781 F. Supp. 394 (D. Md. 1991) aff’d 504 U.S. 938 (1992)(mem.) reh’g. den. 505 U.S. 1231 (1992)
The plaintiffs (who included residents of Anne Arundel County as well as members of both the Republican and Democratic party central committees) alleged that the Maryland General Assembly failed to make a good faith effort to achieve numerical equality and that the congressional plan was adopted with discriminatory intent to “deprive the plaintiffs of an opportunity to effectively participate in the political process.” Plaintiffs also alleged that the plan constituted an unconstitutional gerrymander, primarily because Anne Arundel County, Maryland’s fourth most populous county, was divided among four congressional districts, thereby diluting the votes of the residents.
The Court ruled that Maryland’s congressional redistricting plan was constitutional despite relatively small mathematical population deviations between districts. The overall variance of the plan was ten persons, a variance of .00167 percent. The justifications offered by the State (keeping three major regions intact, creating a minority voting district, and recognizing incumbent representation with its attendant seniority in the House of Representatives) were found sufficient to meet the tests under Karcher.
Regarding the issue of an unconstitutional gerrymander, the Court found that “carving Anne Arundel County into four pieces--while perhaps enough to raise eyebrows--does not violate any federal constitutional provision, including the mandate of Art. I, § 2, to give full effect to the voice of the ‘people.’” Essentially, the plaintiffs failed to make a Davis showing of vote dilution.
Legislative Redistricting Cases, 331 Md. 574, 629 A.2d 646 (1993)
Several parties brought action in the Maryland Court of Appeals challenging the Governor’s redistricting plan. The Court of Appeals, Maryland’s highest court, has original jurisdiction in state legislative redistricting matters. It appointed a special master to consider the challenges and report to the Court.
The Court found:
34 ! The Governor’s Redistricting Advisory Committee provided proper public notice of redistricting hearings necessary to comply with the constitutional requirement that the Governor prepare a redistricting plan after public hearings.
! The 20th legislative district as created by the Governor’s plan satisfied constitutional compactness requirements.
! The Governor’s plan satisfied the “one person, one vote” principle of the United States Constitution, because the plan had a maximum deviation of less than ten percent and Maryland’s constitutional language requiring “substantially equal population” does not impose a stricter standard for population equity than the ten percent rule imposed by the Fourteenth Amendment.
! The plan did not violate the Voting Rights Act because: it failed to create at least one minority single-member district in a portion of a county, absent a showing that minority groups in question were politically cohesive and voted as a block; it created minority districts that allegedly did not contain sufficiently large minority populations to elect minority representatives, where districts had more than 50 percent African American population and no White incumbents; it did not create a single-member minority district in a two-member district with 36 percent African American population, absent a showing that the two-member Delegate district contained a sufficiently compact, politically cohesive minority population; and the plan did not create every conceivable minority district.
! The plan did not result in partisan gerrymandering.
! The plan adequately described districts, although it referred to precincts, census tracts, and blocks to describe districts, rather than visible geographical features.
Marylanders for Fair Representation v. Schaefer, 795 F. Supp. 747 (D. Md. 1992)
Plaintiffs challenged the legislative redistricting plan enacted by the Maryland General Assembly on the ground that it violated the Voting Rights Act and the Fourteenth and Fifteenth Amendments to the U.S. Constitution. Defendant Governor and other state officials moved to dismiss or stay proceedings on abstention grounds pending review of the plan by the Maryland Court of Appeals. The three-judge district court denied the motion but agreed to stay its proceedings informally pending discussions with the state court about how best to coordinate their parallel proceedings.
Marylanders for Fair Representation v. Schaefer, 144 F.R.D. 292 (D. Md. 1992)
The President of the Senate and Speaker of the House of Delegates, who had served as members of the Governor’s advisory committee that drafted the plan that served as the basis of the plan the
35 Governor introduced, had been named individually as defendants in the suit. They moved for an order dismissing themselves as defendants, based on their legislative immunity. The Court held that “any inquiry into the Maryland Legislature’s consideration of the Governor’s Plan or its failure to ratify an alternative plan is entirely barred,” and granted the motion. The Court reserved a ruling on whether they might be questioned concerning their actions in helping to draft the plan before the Governor introduced it.
Marylanders for Fair Representation v. Schaefer, 849 F. Supp. 1022 (D. Md. 1994)
The three-judge district court held that neither the state Senate nor Delegate districting violated the “one person, one vote” principle. It also held that the legislative districting plan did not contain unconstitutional poltical gerrymandering. Regarding the claims made under the Voting Rights Act, the Court found that a mere showing of a general pattern of racially polarized voting was not itself sufficient to require that the plan maximize the number of majority minority districts statewide. However, the Court did find that the redistricting plan violated the Voting Rights Act in the Eastern Shore region of the State.
More specifically, the Court held that voters failed to demonstrate that the 9.84 percent deviation in the Senate portion of the legislative plan was not caused by court-approved state policies. Consequently, they failed to establish a violation of the equal protection clause. Similarly, the state Delegate districts, despite a maximum deviation of 10.67 percent did not violate the equal protection clause because the deviations were necessary to preserve boundaries of political subdivisions, preserve cores of prior districts, avoid splitting precincts, and respect natural boundaries.
Minority-party voters failed to establish that the plan had a discriminatory effect necessary for a successful claim of unconstitutional political gerrymandering, even though minority-party members would continue to be underrepresented in the General Assembly. There was no evidence that the plan would prevent the minority party from raising campaign funds, discourage voters from registering with the minority party, prevent its members from participating in public debate, or discourage minority-party members from running for office. The party held 20 percent of the legislative seats and the legislative majority was responsive to its interests.
The Court did find that under a totality of circumstances, the state’s redistricting plan for the House of Delegates in the Eastern Shore region violated the Voting Rights Act. Among the totality of circumstances, it found that: the bloc-voting White majority consistently defeated candidates supported by the region’s politically cohesive African American Community, there was a history of voting discrimination in the region, single-shot voting was frustrated, thereby impairing the opportunity of Black voters to elect representatives of their choice; there had never been an African American delegate or senator from the region; and in countywide elections only five African Americans had been elected, all from majority-minority districts.
36 The State was ordered to prepare and submit a new redistricting plan for the Eastern Shore that created “a single-member delegate district with a majority-black voting-age citizen population” and complied with the U.S. Constitution and the Voting Rights Act.
Marylanders for Fair Representation v. Schaefer, 849 F. Supp. 1072 (D. Md. 1994)
The State complied and the Court accepted the remedial redistricting plan as submitted to it.
Massachusetts
Commonwealth of Massachusetts v. Mosbacher, 785 F. Supp. 230 (D. Mass. 1991)
The Constitution requires that the apportionment of seats in the House of Representatives be determined by an “actual enumeration” of persons “in each State,” conducted every ten years. Art. I, 2, cl. 3; amdt.14, 2. In the 1990 census, the Census Bureau allocated the overseas employees of the Department of Defense to particular states, based on their “usual residence.” Including these overseas military personnel in the counts of each state caused one congressional district to be shifted from Massachusetts to Washington. Massachusetts sued the Secretary of Commerce, alleging that the procedure was contrary to the language of the Constitution and arbitrary and capricious, in violation of the Administrative Procedures Act. The Massachusetts federal district court agreed.
Franklin v. Massachusetts, 505 U.S. 788 (1992)
On appeal, the U.S. Supreme Court reversed. The Court found that the Secretary’s decision was not subject to the Administrative Procedures Act, because it was not a “final agency action.” Rather, it formed the basis for the Secretary’s report to the President of the population of each state, which the President was free to adopt or revise as he saw fit. The decision to allocate overseas federal employees to their home state based on their usual residence was consistent with the practice of the Census Bureau since the first census of trying to assign each person to the person’s home state, even though they might be temporarily absent from it on the day of the census. Assuming that the overseas employees have retained ties to their home states, the Court found that the Secretary’s method of allocation actually promotes equality of representation.
Black Political Task Force v. Connolly, No. 91-12750-H, 1992 WL 605665 (D. Mass. Feb. 10, 1992)
Congressional Districts are put in place for the election following the taking of the federal census. Massachusetts is unique in that a constitutional amendment was approved by the General Court and the voters in the 1990 state election abolishing the requirement for a state census for the years ending in five, which was used to draw state Senate, House and Governor’s Council districts. Implementing legislation required local municipalities to utilize federal census data to draw local precincts in 1992, which became the building blocks for the redistricting of state
37 districts for the state election of 1994. Legislative activity and litigation concerned the timing of the state redistricting.
In Black Political Task Force v. Connolly, No. 91-12750-H, 1992 WL 605665 (D. Mass. Feb. 10, 1992), consolidated with Massachusetts Republican State Committee v. Connolly No. 91-12751-H, a three-judge federal court concluded that the Commonwealth’s delaying until the fifth year constituted a risk that was justified by the difficulties involved in using, for the first time, federal rather than state census data as the basis of redistricting. The court noted that by the year 2000 the transitional problems would no longer be a factor.
Note:
In March 1997, the Massachusetts Attorney General and Secretary of State wrote to the Joint Committee on Election Laws of the General Court urging the Massachusetts Constitution be amended to require year 2000 numbers be used to redistrict for the election of 2002, since it seems likely that unless there is a plan to redistrict in time for the year 2002 state election, the Commonwealth will face a lawsuit in 2001 or 2002 aimed at either requiring the Legislature to develop a redistricting plan. or persuading the court to develop a plan of its own, in time for the 2002 state election. The process of amending the constitution must be initiated a least three years before the proposed amendment is to be presented to the voters for approval. A majority vote of a joint session of the General Court for 1997-1998 and 1999-2000 would allow the amendment to appear on the year 2000 state election.
Michigan
In re Executive Message of the Governor, 478 N.W.2d 436 (Mich. 1991)
The Michigan Supreme Court declined to certify a question on the procedure to be used for legislative redistricting, in view of its appointment of a special panel of masters to submit a reapportionment plan to the Court should the Legislature fail to enact a plan by January 15, 1992.
In re Apportionment of the State Legislature - 1992, 439 Mich. 1203, 478 N.W.2d 437 (1991)
The Court appointed a three-judge special panel of masters to submit to the Court a plan for redistricting and reapportionment, should the Michigan Legislature and Governor fail to approve a law adopting a reapportionment plan. The Court did not give an opinion regarding the range of allowable population divergence within a reapportionment plan or regarding the application of the federal Voting Rights Act to a reapportionment plan.
In re Apportionment of the State Legislature - 1992, 439 Mich. 251, 483 N.W.2d 52 (1992), 439 Mich. 715, 486 N.W.2d 639 (1992)
38 The Court ruled the special masters’ plan did not violate the Voting Rights Act on the basis of packing too many Black voters into some districts. The Court found that no remedy of the Voting Rights Act was required because a violation of the Act had not been proven by simply failing to maximize the number of minority-majority districts. Further, the Court adopted the special masters’ redistricting plan in spite of the population divergence within the plan. The Court reasoned that the plan’s objectives were to preserve county and municipal boundaries and minimize shifts of municipalities and voters, therefore justifying a divergence 16.4 percent.
City of Detroit v. Franklin, 800 F. Supp. 539 (E.D. Mich. 1992), aff’d 4 F.3d 1367 (6th Cir. 1993); cert. denied sub nom. City of Detroit v. Brown, 510 U.S. 1176 (1994)
Plaintiffs contended that the defendants violated the Constitution by undercounting the population of the City of Detroit, specifically undercounting minority populations generally and minority groups comprising a significant segment of Detroit’s population. Plaintiffs argued that the Constitution and census laws required the Census Bureau to undertake affirmative actions to correct the miscount by making a statistical adjustment for the racially differential undercount, or in the alternative recount parts of the city door to door.
The Sixth Circuit affirmed the lower court’s decision to grant summary judgment for defendants.
The Court first held that plaintiffs lacked standing based on an underrepresentation claim, because the Michigan Legislature is not constitutionally compelled to use the Bureau’s census data. It was not the Census Bureau’s actions that injured plaintiff, but rather an intervening third party, such as the Michigan Legislature and Congress that create the state and federal legislative districts and prescribe legislative spending.
The Court further held that although plaintiff’s do have standing regarding their claim that the undercount will result in a loss of federal funds to the City of Detroit, the plaintiffs failed to demonstrate a genuine issue of material fact. Plaintiffs do not claim, and failed to show, that the Census Bureau deliberately set out to undercount the City of Detroit. The Court articulated that lawsuits are not founded on disagreement with the Census Bureau’s statistical method when, as here, the Census Bureau’s efforts to conduct an accurate count were extraordinary and that a door-to-door enumeration had not been done since the 1960s.
Lastly, the Court refused plaintiffs’ demands that the Secretary be forced to provide the most accurate census practicable by adjusting the counts for the racially differential undercount.
Good v. Austin, 800 F. Supp. 551 (E.D. Mich. 1992); 800 F. Supp. 557 (E.D. Mich. 1992)
Both the Republican and Democratic parties submitted congressional redistricting plans for consideration. The Court agreed that both plans satisfied the mandatory constitutional and statutory criteria; however, the Court held neither plan satisfied the proper balance of the secondary criteria. Specifically “geographical compactness and preservation of the integrity of
39 county, city, and township lines, to the extent reasonably possible, are paramount secondary criteria and serve important nonpartisan interests.” The Court held that both the Republican and Democratic plans were corrupt with political considerations.
Van Straten v. Austin, No. 291-CV-194 (W.D. Mich.) consol. with Good v. Austin
NAACP v. Austin, 857 F. Supp. 560 (E.D. Mich. 1994)
Plaintiffs argued that because the Michigan Supreme Court did not force the acceptance of a redistricting plan that maximized the number of majority-minority Senate and House districts, the defendants intentionally violated the Constitution and federal Voting Rights Act. The Court disagreed, stating that the State is not required to “maximize black political power or influence.” The Court continued by stating that failure to maximize the number of majority-minority districts, without more, is not enough to show intentional discrimination. Race cannot become the “sole defining characteristic” that determines a reapportionment plan.
Minnesota
Seventy-Seventh Minnesota State Senate v. Carlson, 472 N.W.2d 99 (Minn. 1991)
Governor Arne H. Carlson had attempted to veto the legislative redistricting bill passed in May 1991. He signed a message vetoing bill at 9:02 p.m. on the third day after it was presented to him (Sundays excepted), the last day on which the bill could be vetoed. However, the Governor’s staff did not return the bill and the veto message to the house of origin until the next day. The Senate and House of Representatives, having researched the presentment and return dates of many other bills that were vetoed under a variety of circumstances at the close of the 1991 session, found a total of 14 bills that had not been returned to their house of origin within the three days prescribed by the Constitution. They filed a petition for a writ of mandamus in the Minnesota Supreme Court. The Court held that the challenge must be brought in district court as a declaratory judgment action.
Seventy-Seventh Minnesota State Senate v. Carlson, No. C3-91-7547 (2nd Dist. Ramsey County Aug. 2, 1991)
After their petition to the Supreme Court was dismissed, Seventy-Seventh Minnesota State Senate v. Carlson, 472 N.W.2d 99 (Minn. 1991), the Senate and House of Representatives filed a declaratory judgment action in Ramsey County District Court seeking to have all 14 bills declared valid law in spite of the attempted vetoes. The Court found that there had been no improper conduct on the part of the legislative bodies that would have prevented Governor Carlson from returning the bills on time, and that with the passage of midnight on the last day for their return, each had become law without the Governor’s signature. The Governor chose not to appeal.
40 Benson v. Growe, No. 4-91-603 (D. Minn.) consol. with Emison v. Growe
After the district court held that the redistricting bill had become law without the Governor’s signature, the minority leader of the Senate and others filed an action in federal district court seeking to have the plan declared invalid because of a series of technical errors in the bill that caused it to have districts that were not compact, were not composed of contiguous territory, and were not substantially equal in population. The case was assigned to the three-judge district court that had been considering an equal-population challenge to the 1982 legislative and congressional plans, Emison v. Growe. The court consolidated the two cases.
Cotlow v. Growe, No. C8-91-985, Findings of Fact, Conclusions of Law, and Order for Judgment on Legislative Redistricting (Minn. Spec. Redis. Panel Dec. 9, 1991)
In January of 1991, plaintiffs aligned with the Democratic Farmer Labor Party had filed an action against Secretary of State Joan Growe in state district court seeking to have the legislative and congressional districts drawn by a three-judge federal court in 1982 declared in violation of the equal population requirements of both the state and federal constitutions, based on the preliminary results of the 1990 census. The Minnesota Supreme Court, at the request of the parties, appointed a Special Redistricting Panel of two district judges and one judge of the Court of Appeals to consider the challenge. In March of 1991, plaintiffs aligned with the Independent Republican Party filed suit in federal district court, Emison v. Growe, challenging the 1982 plans on similar grounds. Emison and others were permitted to intervene in the state court action. After a separate state district court had held the legislative redistricting bill to have become law without the Governor’s signature, Emison sought in parallel proceedings in the state and federal court actions to have it held in violation of constitutional requirements for compactness, contiguity, and equal population. Cotlow asked the federal court to abstain from further proceedings pending state court action, and asked the state court to construe the new law to correct its technical errors in a way that would cause the plan to meet constitutional requirements. On December 5, 1991, as the state court was about to issue its order construing the law in a way that corrected its constitutional flaws, the federal court enjoined the state court from issuing the order. The state court issued the order anyway, but subject to the federal court’s injunction. The injunction was promptly vacated on appeal, Cotlow v. Emison, 502 U.S. 1022 (Jan. 10, 1992) (mem.), and the state court’s December 9 order on the legislative plan went into effect.
Cotlow v. Growe, No. C8-91-985, Final Order (Minn. Spec. Redis. Panel Apr. 15, 1992)
On January 10, 1992, when the Legislature passed a congressional redistricting plan, Governor Carlson returned it with his veto message the day it was presented to him. The same day, the U.S. Supreme Court vacated the federal court’s injunction of the state court proceedings. The state court then proceeded to draw a congressional plan. On February 19, 1992, as the state court was about to issue its congressional plan, the federal court issued legislative and congressional plans of its own and enjoined Secretary of State Growe from holding the 1992 election using any plan
41 other than the federal court’s plan. Growe appealed the federal court’s order, and on March 11, 1992, the U.S. Supreme Court stayed the order as to the legislative plan pending appeal. Growe v. Emison, No. 91-1420 (Mar. 11, 1992) (Blackmun, J., in chambers). On March 30, the Supreme Court noted probable jurisdiction. Growe v. Emison, 503 U.S. 958 (1992) (mem.). The state court issued its congressional plan, subject to the federal court’s injunction. The 1992 election was held using the legislative plan enacted by the Legislature and corrected by the state court and using the congressional plan drawn by the federal court. On February 23, 1993, the Supreme Court reversed the federal district court in all respects. Growe v. Emison, 507 U.S. 25 (1993). The state court’s congressional plan was used for the elections of 1994 and following.
Emison v. Growe, 782 F. Supp. 427 (D. Minn. 1992)
In March 1991, two months after plaintiffs aligned with the Democratic Farmer Labor Party had filed suit in state court challenging the 1982 court-drawn legislative and congressional plans as in violation of equal population requirements based on the preliminary results of the 1990 census, the Emison plaintiffs, aligned with the Independent Republican Party, filed suit in federal court challenging the 1982 plans on similar grounds. They also alleged that the 1982 legislative plan drawn by the federal court violated Section 2 of the Voting Rights Act because it split American Indian populations in northern Minnesota and south of downtown Minneapolis. After the Legislature passed a new legislative plan in May 1991, the Emison plaintiffs challenged it as in violation of state constitutional requirements for compactness and contiguity and in violation of federal and state constitutional requirements for equal population. In August 1991, the three-judge federal district court denied a motion by the Senate and House of Representatives, defendants in intervention, to abstain pending action by the Legislature at its 1992 session and the outcome of parallel proceedings in state court in Cotlow v. Growe. On December 5, 1991, as the state court was about to issue its order construing and correcting technical errors in the legislative plan enacted by the Legislature, the federal court enjoined the state court from further proceedings. The injunction was vacated on appeal. Cotlow v. Emison, 502 U.S. 1022 (Jan. 10, 1992) (mem.). On February 19, 1992, the federal court held the legislative plan in violation of Section 2 of the Voting Rights Act because it failed to create a majority-minority senate district in Minneapolis. The court then proceeded to redraw all 201 senate and house districts in the State. It also drew a congressional plan (the Legislature’s plan had been vetoed by the Governor), and enjoined the Secretary of State from holding the 1992 election using any other plans. The Secretary of State appealed.
Growe v. Emison, 507 U.S. 25 (1993)
On appeal of Emison v. Growe, 782 F. Supp. 427 (D. Minn. 1992), the U.S. Supreme Court, in a unanimous opinion written by Justice Scalia, reversed and remanded with instructions to dismiss. The Court held that the federal district court had erred in not deferring to the state court. (The Court observed that this was an appropriate occasion for temporary “deferral,” rather than permanent “abstention.”) 507 U.S. 25, 37. The Court repeated its words from several previous cases that “reapportionment is primarily the duty and responsibility of the State through its
42 legislature or other body, rather than of a federal court.” 507 U.S. at 34. As the court said, “Minnesota can have only one set of legislative districts, and the primacy of the State in designing those districts compels a federal court to defer.” 507 U.S. at 35. Rather than coming to the rescue of the Minnesota electoral process, the federal court had raced to beat the state court to the finish line, even tripping it along the way. 507 U.S. at 37. The Supreme Court found that the state court had been both willing and able to adopt a congressional plan in time for the elections. Id.
On the Voting Rights Act issue, the Court found that the Gingles preconditions, which it had previously applied only to challenges to multimember districts, also applied to single-member districts. 507 U.S. at 39-41. Applying the Gingles preconditions to the Minnesota plan, the Supreme Court found that they were unattainable. Even making the “dubious assumption” that the minority voters were geographically compact, there was no evidence of political cohesion within any of the three minority groups in the district (Blacks, American Indians, and Asians), nor was there any evidence of political cohesion between them. Likewise, there was no evidence of bloc voting by the white majority. In the absence of evidence to establish the preconditions, the Section 2 challenge failed. 507 U.S. 41-42. (The Court observed in a footnote that the usual measure for determining vote dilution is the minority population of voting age, not the total minority population used by this district court. 507 U.S. at 38 n.4.)
Mississippi
Watkins v. Mabus, 771 F.Supp. 789 (S.D. Miss. 1991), aff’d, 502 U.S. 954 (1991) (mem.)
Mississippi faced regular quadrennial elections in 1991. Its 1982 districting plan clearly violated the one-person, one-vote rule. During its 1991 session, the Legislature drew a new plan and submitted it to the U.S. Justice Department for “pre-clearance” under Section 5 of the Voting Rights Act. Dissatisfied with the Legislature’s proposed plan, Black legislators and civil rights activists brought suit under Section 2 of the Voting Rights Act, asking a three-judge federal court to enjoin elections and either adopt their alternate plan or draw its own plan. After this action commenced, the U.S. Justice Department rejected the Legislature’s 1991 plan.
The Court strongly believed that the Legislature should draw the final redistricting plan and stated this several times from the bench. It considered several other plans, including the Legislature’s attempt to address the Justice Department’s objections. The Court scheduled a series of status conferences in an attempt to force a settlement. It found that all proposed plans contained “a large number of significantly non-compact districts,” and “little-disguised political ‘landmines.’” Facing an exceptional expedited schedule, “untenable options,” and, noting “the troubling political winds that have unfailingly roared through the courtroom at every turn of this litigation,” the Court rejected the newer legislatively drawn redistricting plan, rejected the plaintiffs’ plan, and abandoned any prospect of a settlement or of drawing its own plan.
43 In reaching its decision, the Court stated its belief that elections should go forward as scheduled. It found it was not required to adopt an interim plan, which would pass constitutional muster. The Court ordered the state to hold its regularly-scheduled 1991 elections on the 1982 districting plan as an interim remedy, and signaled its intent to order elections in 1992 for a three-year term.
Watkins v. Fordice, 791 F.Supp. 646 (S.D. Miss. 1992)
Having run for office in 1991 in the 1982 districts, the 1992 Legislature prepared redistricting plans that addressed the Justice Department’s objections to the 1991 plans. The Court suspended its preparation for drawing a plan and continued holding status conferences related to scheduling of elections in 1992. When the Justice Department approved the new plans after forcing a minor amendment to the Senate plan, the Court ordered a legislative election for a three-year term, to coincide with the Presidential election in 1992, and with primary elections scheduled consistently with Mississippi law.
Watkins v. Fordice, 807 F.Supp. 406 (S.D. Miss. 1992)
The three-judge Court stated that whether plaintiffs had prevailed in the litigation was “a close question,” given that plaintiffs received none of the relief they requested and the Legislature’s redistricting decisions were in response to the Justice Department. Nevertheless, the Court ruled that plaintiffs had prevailed since the litigation had likely influenced the Legislature’s deliberations. In determining the award, the Court found arithmetic errors and other anomalies in plaintiffs’ attorneys’ time records. For example, the lead attorney had billed more than 24 hours for several days, had billed for activities unrelated to the suit, and had performed such tasks as photocopying at his regular hourly rate. The Court awarded less than one-fourth of the $866,938 fee requested.
Missouri
Nash v. Blunt, 140 F.R.D. 400 (W.D. Mo. 1992)
Democratic voters and Democratic members of state’s house reapportionment commission moved to intervene in a case challenging the Missouri state house plan under Section 2 of the Voting Rights Act. The Republican Governor and Secretary of State asserted that they were adequately representing the interests of all state citizens and resisted the motion to intervene. The motion to intervene was granted and a motion to reconsider the order granting intervention was denied.
Nash v. Blunt, No. 91-0840-CV-W-2 (W.D. Mo. Jan. 24, 1992)
The three-judge federal panel rejected the initial request of the plaintiffs to set aside the House Redistricting Commission’s plan for redistricting the House of Representatives and replace it
44 with a plan that the plaintiffs and defendants had agreed to. The court said it could not set aside a duly adopted plan, unless it was found to violate the law.
Nash v. Blunt, 797 F. Supp. 1488 (W.D. Mo. 1992), aff’d sub nom. African-American Voting Rights Legal Defense Fund, Inc. v. Blunt, 507 U.S. 1015 (1993) (mem.)
In an amended petition, the plaintiffs challenged the plan as a violation of Section 2 of the Voting Rights Act, with the violations occurring in Jackson County, St. Louis County, and St. Louis City. The Court found that the plan did not violate Section 2 because the plaintiffs did not show that the third precondition set forth in the Gingles’ decision (the majority votes as a bloc to usually defeat the minority’s preferred candidate) was met in any of the three areas. The Court did note, however, that the minority’s preferred candidate is elected at times not because racial bloc voting is absent, but because majority votes are sometimes divided among multiple majority candidates in the primary and a minority candidate wins with a plurality of the vote. The majority has been willing to vote for the winning minority candidate in the general election.
Montana
Montana v. Department of Commerce, 775 F. Supp. 1358 (D. Mont. 1991)
Since the 1930 census, Congress has apportioned seats in the House of Representatives using the mathematical formula called the “method of equal proportions.” The formula had been recommended by a committee of respected mathematicians appointed by the National Academy of Sciences to evaluate the various possible methods of apportionment. The committee chose the method of equal proportions as being the best for reducing both the relative difference between states in the population of districts and the relative difference between states in the number of persons per representative. Those ratios differ between states because every state is entitled to at least one representative, and the number of representatives assigned to a state must be a whole number. Thus, the congressional districts in each state must be the same size, but their size differs from one state to another.
Applying the method of equal proportions to the 1990 census count had caused Montana to drop from two congressional seats to one. Montana sued the Department of Commerce, home of the Census Bureau, alleging that the method of equal proportions did not achieve the greatest possible equality in the number of persons per representative. The District Court found the statute unconstitutional and enjoined the Government from reapportioning the House of Representatives using the method of equal proportions.
United States Department of Commerce v. Montana, 503 U.S. 442 (1992)
On appeal, the Supreme Court concurred that the method of equal proportions did not achieve the greatest possible equality in the number of representatives per district, but pointed out that the
45 method did achieve the smallest relative difference between the populations of the districts in different States. As between alternative methods, each of which measured equality differently, the Court held that Congress had not abused its discretion in selecting the method of equal proportions. Montana was left with only one congressional seat.
Old Person v. Cooney, No. CV-96-00004-GF-PGH (D. Mont. Oct. 28, 1998)
Native American residents of Montana’s Indian reservations sued the Secretary of State and Governor claiming that: (1) existing state House and Senate districts deny or abridge, on account of race, color, or membership in a language minority group, Native Americans’ right to vote, in violation of Section 2 of the Voting Rights Act; and (2) the existing redistricting plan was enacted and is being maintained with the racially discriminatory purpose of diluting Native Americans’ voting strength in violation of Section 2.
The Court found that the Commission did not discriminate against Montana Indians and that the 1990 districting plan did not have the effect of discriminating against Montana’s Indians. The Court held that the plaintiffs had not proven that non-Indians usually vote as a bloc to defeat Indian-preferred candidates. It found that most Indians vote as Democrats and in many areas of the state and in many elections that preferred candidates win. Thus, it could not find that the Indians in Montana have less access to the electoral process than do non-Indians. The Court noted that the Voting Rights Act is not a guarantee for minorities to have candidates elected in equal proportion to their percentage in the population, but rather that it guarantees that minorities have an equal opportunity to elect candidates of their choice.
An appeal was filed March 8, 1999, on claims involving the Blackfeet and Flathead Indian Reservations.
Old Person v. Cooney, No. 98-36157 (9th Cir. Oct. 27, 2000)
A three-judge panel of the 9th Circuit found that Montana’s 1992 redistricting plan was not adopted with a discriminatory purpose in violation of section 2 of the Voting Rights Act, 42 U.S.C. § 1973. However, the district court erred in its application of the third precondition of Thornburg v. Gingles, 478 U.S. 30 (1986), in relying in part on the electoral success of Indian candidates in majority-Indian House Districts when it concluded that white bloc voting in majority-white House Districts was not legally significant. The district court also erred in finding proportionality between the number of legislative districts in which American Indians constituted an effective voting majority and the American Indian share of the voting population within the state. These errors in combination may have affected the district court’s final ruling that there was no dilution of American Indian voting strength. The case was remanded to the district court.
46 Old Person v. Brown, No. CV-96-00004-PMP (D. Mont. Jan. 24, 2002)
Judge Phillip M. Pro found that no vote dilution had been demonstrated in the Flathead and Blackfeet Reservation districts that were created in the 1992 redistricting plan.
Old Person v. Brown, No. 02-35171 (9th Cir. Dec. 4, 2002)
A three-judge panel of the 9th Circuit affirmed, concluding that “the district court did not clearly err in determining that the totality of circumstances did not establish vote dilution in the districts where plaintiffs resided.”
Nebraska
Day v. Nelson, 240 Neb. 997, 485 N.W.2d 583 (1992)
Madison County citizens challenged in the District Court of Lancaster County the constitutionality of 1991 Neb. Laws. LB 614, which redrew the State’s legislative districts after 1990 federal census. The plaintiffs alleged that LB 614 abolished Madison County as a unitary district and instead divided the county between two preexisting districts, which violated the Nebraska Constitution, Article III, § 5, and Article I, §§ 1 and 3. They pointed out that Lincoln County, which was the only other county in Nebraska that could be a unitary district, was not split between other preexisting districts as Madison County was. Article III, § 5 states, “county lines shall be followed whenever practicable, but other established lines may be followed at the discretion of the Legislature.” Although dismissed by the District Court, the plaintiffs appealed to the Supreme Court of Nebraska, which stated the Legislature had violated Article III, § 5. The judgment was reversed and the cause remanded to the District Court of Lancaster County. Subsequently, the Nebraska Legislature held a special session in 1992 and enacted LB 7 to redraw the district boundaries in Madison County to conform to Day v. Nelson.
Thompson v. Nelson, DOC. 484-091 (Dist. Ct., Lancaster County, dismissed Sep. 9, 1992)
Plaintiffs in Southwest Nebraska challenged the constitutionality of Neb. Laws. LB 614, 1991, based on Article III, § 5 of the Constitution of the State of Nebraska, which requires that any redistricting respect and follow county lines whenever practical. The plaintiffs stated that the Legislature failed to follow and respect established county lines in Red Willow County, which had been included in one multicounty legislative district before the enactment of LB 614. During the second special session held in 1992 to address the district boundaries in Madison County, the Legislature also redrew the district boundaries in Southwest Nebraska and enacted LB 15. After the passage of LB 15, the case was voluntarily dismissed.
47 Hlava v. Nelson, No. S-33-92004 (Dist. Ct., Lancaster County, dismissed Sep. 30, 1992), aff’d 247 Neb. 482, 528 N.W.2d 306 (1995)
Sheridan County had historically been included in one district, District 49. LB 614 divided Sheridan County into two legislative districts: two Gordon City precincts were added to District 43; the rest of Sheridan County remained in District 49. Amendments to LB 614 by LB 7 and LB 15 had no effect on the division of Sheridan County. Plaintiff Hlava filed suit in District Court in Lancaster County alleging that LB 614, as amended, violated Article III, § 5, of the Nebraska Constitution because the Legislature failed to follow county lines where practicable. Hlava requested an injunction against implementation of the statue. Hlava also contested the Legislature’s self-imposed statistical guideline that districts not deviate more than plus or minus two percent from the ideal population of 32,212, arguing that a larger deviation could have allowed Gordon to remain part of District 49. The District Court found that LB 614, as amended, was constitutional and dismissed the case. The Nebraska Supreme Court affirmed.
Carlson v. Nelson, No. CV92-3300 (D. Neb., dismissed Mar. 16, 1993)
Plaintiff Carlson had won the May 1992 primary election as a candidate from District 19. When the Legislature redrew district boundaries in a special session called, in part, to address the Supreme Court decision in Day v. Nelson, the new plan made Carlson a resident of District 40. She sued in U.S. District Court, alleging that the new boundaries made her ineligible in the general election, disenfranchising her and the voters of the former District 19. She also claimed violations of her rights to due process of law and equal protection guaranteed by the Fourteenth Amendment to the U.S. Constitution and her rights to freedom of association and freedom of speech guaranteed by the First Amendment to the U.S. Constitution. Plaintiff’s complaint was dismissed without prejudice.
Nevada
There were no cases.
New Hampshire
McGovern v. Secretary of State, 138 N.H. 128, 635 A.2d 498 (N.H. 1993)
Part II, article 9, of the New Hampshire Constitution provides for equal population of legislative districts by requiring that members of the House of Representatives be apportioned among the towns, wards, and places of the State to provide representation “as equal as circumstances will admit.” No town, ward, or place may be divided in the formation of a House district.
The Legislature enacted an apportionment plan that allocated nine representatives to the districts that comprised the towns of Portsmouth and Newington, even though an exact mathematical
48 allocation would have been 9.71 representatives. The plan allocated 13 representatives to the districts that comprised the towns of Salem and Windham, although their mathematical allocation would have been12.53. The nine members elected from the Portsmouth/Newington districts challenged the plan as violating the State Constitution on the ground that the allocations should have been 10 and 12, rather than 9 and 13.
The Supreme Court of New Hampshire affirmed the order of the Superior Court of Rockingham County dismissing the petition. It found that the Legislature had not abused its discretion in deciding which of the two to round up and which to round down and in considering, as one factor, the presumed population drop in the Portsmouth/Newington area due to the closing of Pease Air Force Base after the 1990 census.
New Jersey
State v. Apportionment Commission, 125 N.J. 375, 593 A.2d 710 (N.J. 1991), consol. with Dorsey v. Florio and County of Essex v. Apportionment Commission
The issue in this declaratory-judgement action was whether the census data received by the Governor on or about January 24 and 30, 1991 from the Census Bureau was the “official decennial census” within the meaning of New Jersey Constitution. Under the State Constitution, the responsibility for drafting a legislative-apportionment plan is vested in a 10-member Apportionment Commission, which must certify to the Secretary of State a plan establishing election districts for the State Legislature “within one month of the receipt by the Governor of the official decennial census of the United States for New Jersey.” N.J. Constitution, Article IV, Section 3, paragraph 1. The appellants argued that the materials received by the Governor were neither “complete” nor “official” because of a disclaimer from the Census Bureau stating that although the data fulfilled the requirements of federal law, the population counts would be subject to possible correction for undercount or overcount and that a decision to correct would be made by July 15, 1991. The appellants noted that if the figures were used to draw district lines for the primary election (held in June), the lines would need to be revised for the general election and if the Apportionment Commission waited until July 15 for possible correction, it would be practically impossible to conduct primary and general elections. The Supreme Court held that the meaning “‘most naturally and plainly convey[ed]’” by the phrase “official decennial census” did embrace the data officially delivered to the Governor by the Census Bureau, and thus that data did constitute the “official decennial census” for purposes of invoking the apportionment provisions of the State Constitution.
Brady v. New Jersey Redistricting Commission, 131 N.J. 594, 622 A.2d 843 ( N.J. 1992), consol. with Save Our Shore District v. New Jersey Redistricting Commission
The State Supreme Court’s ruling in this opinion involved two separate cases. In Save Our Shore District, the plaintiffs had sought an injunction from the Chancery Division barring the implementation of a new congressional redistricting plan on the grounds that the Legislature had
49 no power to delegate its lawmaking authority, i.e. the responsibility of preparing a redistricting plan, to a special commission created for that purpose because federal law required the plan to be voted on by the Legislature and signed by the Governor. The trial court refused to grant the injunction and because of the importance the question, the high court certified it for review. In Brady, the plaintiff petitioned the Supreme Court directly contending that the plan produced by the special commission violated the act that created the commission for many reasons, all of them related to the data submitted by the commission to the Secretary of State as part of the redistricting plan.
After reviewing the Save Our Shore District plaintiff’s arguments, the Court found no indication in federal law that the procedure used to prepare the plan was improper. The court held that the Legislature had the power to delegate the duty to prepare the redistricting plan and validly exercised that power. The delegation of lawmaking authority to a temporary special purpose commission was valid because there were sufficiently detailed guidelines set forth to hem in the exercise of that power, In addition, the Court also noted that temporary commissions for special purposes established by law constitute a specialized form of administrative agency and that congressional redistricting was one of those limited special purposes for which a temporary commission could be established by Article V, Section 4, paragraph 1 of the State Constitution. The Court was also unpersuaded by the Brady plaintiffs’ arguments that uncorrected technical errors in the data originally submitted to the Secretary of State produced a plan that failed to achieve population equality among districts and preserve minority voting rights, and created noncontiguous districts. The Court noted that while the defendant conceded there were technical errors in the original plan, these errors were discovered and corrected within four days after certification by the Secretary of State and that the changes were not significant. As the Court noted: “we cannot imagine that [the Legislature] intended the Act [establishing the commission] to impose the all-or-nothing requirement of a perfect written transposition. The pencil that the Legislature handed to the Commission was doubtless equipped with an eraser.” 131 N.J. at 612, 622 A.2d at 852.
New Mexico
There were no cases.
New York
Fund for Accurate and Informed Representation, Inc. v. Weprin, 796 F. Supp. 662 (N.D. N.Y. 1992) (per curiam) aff’d, 506 U.S. 1017 (1992) (mem.)
The Fund for Accurate and Informed Representation (FAIR) challenged the redistricting plan for the New York Assembly. The complaint alleged that the plan adopted by the Assembly: (1) violated the one-person, one-vote requirement of the Fourteenth Amendment; (2) comprised a partisan gerrymander that discriminated against Republican voters; (3) diluted minority voting
50 strength; and (4) violated the Fourteenth Amendment by fragmenting cohesive communities of interest and political subdivisions between Assembly districts.
After a summary trial, the Court concluded that the “challenges raised in plaintiffs’ complaint are without merit.” However, during the course of the trial the Department of Justice interposed an objection to two Assembly districts in Manhattan. Since the Legislature was unable to adopt a timely remedy, the Court directed the “Special Master to draw new district lines for them and for such contiguous districts as may thereby be affected, to bring those districts into compliance with the Voting Rights Act. With respect to the remaining districts in the Assembly plan and the entire Senate plan, we defer to the legislature’s plan and adopt its apportionment of those districts.”
One Person, One Vote
The maximum population deviation in the Assembly plan, as conceded by the plaintiffs, was 9.43 percent. The Court held that “[t]his concession is fatal to the one person, one vote claim because, absent credible evidence that the maximum deviation exceeds 10 percent, plaintiffs fail to establish a prima facie case of discrimination under that principle sufficient to warrant further analysis by this Court.”
The Court rejected “plaintiffs’ contention that the state must justify an apportionment plan even though it creates a maximum deviation under 10 percent. While plaintiffs’ argument may be correct in the context of state apportionment of Congressional districts . . . it has no application to apportionment of state legislative districts.”
Partisan Gerrymandering
The Court also rejected plaintiffs’ partisan gerrymandering claim. Since Republicans control the New York Senate, Republican voters cannot establish that the “Assembly apportionment plan deprives Republicans of an opportunity to influence New York State’s political process as a whole.”
Intentional Racial Discrimination
Plaintiffs argued that the Assembly plan violated the Fourteenth and Fifteenth Amendments. Although plaintiffs conceded that the Assembly “harbored no design or purpose to discriminate against minorities,” they contended that “a racially discriminatory motive [may be] inferred from an ultimate objective of keeping certain white incumbents in office.”
The Court held that this claim failed for two reasons: (1) “Plaintiffs failed to demonstrate any linkage between the alleged fragmentation of minority communities in Monroe, Nassau, Erie or Westchester Counties, and an alleged intent to preserve the incumbency of certain white incumbents” and, (2) “Examining areas with substantial minority communities elsewhere in the
51 state, we find apportionment that appears to consolidate minority populations - possibly in the interests of maximizing minority influence - rather than discriminatory fragmentation.”
Voting Rights Act
The Court held that the plaintiffs failed to establish a voting rights violation. The Court initially noted that a state’s redistricting law is ordinarily accorded deference as a constitutionally compliant enactment. The plaintiffs argued that the Assembly plan created too few majority-minority districts because it used too high a percentage of minority population to create an effective district. (The Assembly plan included nine districts with Black populations greater than 65 percent). The Court was not convinced that these districts were unlawfully packed.
The plaintiffs also claimed that § 2 of the Voting Rights Act requires that in areas where minorities are not sufficiently numerous to constitute a majority in a district, they should be consolidated into a single district to maximize their ability to influence elections. The Court declined to determine whether § 2 requires the creation of influence districts. Instead, the Court reasoned that even if influence districts are required, plaintiffs failed to sustain their burden of proof on the issue.
Scaringe v. Marino, No. 92-CV-593 (N.D. N.Y.), consol. with FAIR v. Weprin
Norman v. Cuomo, 796 F. Supp. 654 (N.D. N.Y. 1992) (per curiam) (filed in N.Y. Sup. Ct., Kings County, removed to E.D. N.Y., transferred to N.D. N.Y. and consolidated with FAIR v. Weprin)
Reid v. Marino, No. 9567/92 (N.Y. Sup. Ct., Kings County, June 8, 1992) (congressional plan adopted; later enacted by legislature and precleared by Justice Department)
Wolpoff v. Cuomo, Order, No. 14757-1922 (N.Y. Sup. Ct., Bronx County, May 14, 1992) (removed to federal court), 792 F. Supp. 964 (S.D. N.Y. 1992) (remanded to state court), Order, No. 14757-1922 (N.Y. Sup. Ct., Bronx County, June 12, 1992)
Two separate challenges alleged that the legislative redistricting plan adopted by the New York State Senate violated article III, § 4 of the New York State Constitution. Article III, § 4 provides:
Each senate district shall contain as nearly as may be an equal number of inhabitants, excluding aliens, and may be in as compact form as practicable, and . . . shall at all times consist of contiguous territory, and no county shall be divided in the formation of a senate district except to make two or more senate districts wholly in such county.
52 In Wolpoff v. Cuomo, plaintiffs’ alleged that the redistricting plan “unconstitutionally fragments Bronx County into six separate Senate districts, only two of which are contained wholly within Bronx County, despite the fact that by virtue of population, Bronx County could support four wholly self-contained Senate districts.” In Dixon v. Cuomo, plaintiffs’ contended that the “redistricting plan is a rank partisan and personal-interest gerrymander that unnecessarily fragments counties throughout the State and creates districts that are neither compact nor contiguous.”
The Senate Majority Leader sought to remove the Wolpoff case to federal district court pursuant to 42 U.S.C. § 1443(2). However, the federal district court remanded the case back to the state court. 792 F. Supp. 964 (S.D. N.Y. 1992).
Following argument, the Court struck down the Senate redistricting plan as violative of the State Constitution. The Wolpoff court held that the plan “excessively, gratuitously and without supervening need dictated by federal law, disregards the integrity of county boundaries in the creation of Senatorial districts.”
Wolpoff v. Cuomo, 80 N.Y.2d 70, 587 N.Y.S.2d 560, 600 N.E.2d 191 (1992)
The Senate Majority Leader filed an appeal in the New York Court of Appeals. Although acknowledging that the “Senate redistricting plan technically violates the express language of the State Constitution,” the Court nevertheless declared that the Senate “complied with the State Constitution as far as practicable” and upheld the plan.
State Constitution (Integrity of County Boundaries)
The Court held that the Senate’s plan and all plans submitted by the plaintiff’s technically violated the State Constitution. However, the Court reasoned that plaintiffs must show more than a technical violation of the State Constitution to succeed on their claim. The Court elaborated on the proper standard of review:
[W]e examine the balance struck by the legislature in its effort to harmonize competing Federal and State requirements. The test is whether the legislature has “unduly departed” from the State Constitution’s requirements regarding contiguity, compactness and integrity of counties . . . in its compliance with Federal mandates. It is not our function to determine whether a plan can be worked out that is superior to that set up by [the Legislature]. Our duty is . . . to determine whether the legislative plan substantially complies with the Federal and State Constitutions . . . . A strong presumption of constitutionality attaches to the redistricting plan and we will upset the balance struck by the Legislature and declare the plan unconstitutional “only when it can be shown beyond reasonable doubt that it conflicts with the fundamental law, and that every reasonable mode
53 of reconciliation of the statute with the constitution has been resorted to, and reconciliation has been found impossible.”
The Court initially determined that nearly half of the Senate districts cross county lines and that “for the first time in history, there are four pairs of bi-county districts.” The Senate Majority Leader argued, however, that the districts were drawn in a “good faith effort” to comply with the requirements of one person, one vote and the Voting Rights Act, and not for partisan political reasons. The Senate plan had a maximum population deviation of 4.29 percent and the Department of Justice precleared the portions of the plan subject to § 5 of the Voting Rights Act. The three counties subject to § 5 are Kings, New York, and Bronx.
The Court noted that all the plans submitted by the plaintiffs split fewer counties but contained higher population deviations. According to the Court:
We are here to decide whether in complying with Federal mandates, the Legislature unduly undermined article III, § 4 of the State Constitution. That an alternative plan might have been devised that conflicted less with article III, § 4 but did greater violence to the equal representation principle is no basis for rejecting the Senate plan.
Although continuing to acknowledge the deficiencies in the Senate plan, the Court concluded that the plaintiffs could “not overcome the presumption of constitutionality that attaches to the redistricting plan.” In addition, the Court recognized that “balancing the myriad requirements imposed by both the state and Federal Constitution is a function entrusted to the Legislature. It is not the role of this . . . Court to second-guess the determination of the Legislature . . . in this regard.” Finally the Court determined:
We find that the [Senate Majority Leader] has put forth more than enough evidence to support his argument that any such violation was minimized and that the district lines were drawn as they were in order to comply with federal statutory and constitutional requirements. The Senate plan indeed compromises the integrity of 23 counties . . . . But [the Senate Majority Leader] has countered [plaintiffs’] allegations with a detailed defense of the proposed plan that is grounded in a complex analysis of population trends and voting patterns, and the way in which both must be accommodated in order to comply with federal requirements.
Puerto Rican Legal Defense and Education Fund v. Gantt, 796 F. Supp. 677 (E.D. N.Y. 1992), injunction stayed sub nom. Gantt v. Skelos, 504 U.S. 902 (1992) (mem.)
As a result of the 1990 census and subsequent apportionment, New York was entitled to 31 congressional seats, a loss of 3 seats. Because the New York Legislature appeared unable to timely enact a new congressional redistricting plan, several suits were filed requesting that a
54 court redraw the congressional boundaries. On March 26, 1992, a group of plaintiffs filed suit in the U.S. District Court for the Western District of New York (Waring v. Gantt, No. CV-92-1776). Also on March 26, 1992, another group of plaintiffs filed suit in New York Supreme Court, Kings County (Reid v. Marino, No. 9567/92). Finally on March 31, 1992, this case was filed. Waring was consolidated with this case and a three-judge court was named.
The Assembly defendants requested that the Federal Court abstain and allow the state case to proceed. The Senate defendants, joined by the plaintiffs, argued against abstention and in favor of the Court enjoining the state court proceeding.
The Court declined to abstain and instead enjoined the state court from proceeding. The Court reasoned that only a plan drawn by a federal court could satisfy New York’s election schedule. Under New York law, all congressional candidates were required to file signed petitions by July 16, 1992. In addition, Brooklyn, Manhattan and the Bronx are covered by § 5 of the Voting Rights Act and require preclearance from the Department of Justice before any redistricting plan for these areas is effective. A plan drawn by a federal court, however, is not always subject to the preclearance requirement.
Abstention
In declining to abstain in favor of the state court proceeding, the Court reasoned that there were no disputed state law matters at issue and that adjudicating the dispute in state court would increase the likelihood of delay. A decision by the state court could be appealed to the appellate division, then to the New York Court of Appeals, and then to the U.S. Supreme Court. In contrast, a decision by a three-judge federal court could be appealed directly to the U.S. Supreme Court. Moreover, the Court said that a plan drawn by a federal court did not need to be precleared by the Department of Justice under § 5. The Court concluded that the Assembly defendants had failed to submit any court precedent that would require the Puerto Rican Legal Defense and Education Fund (PRLDEF) court to abstain.
The Court further held that to avoid duplicative litigation, “an injunction of the state redistricting case is both necessary and appropriate to protect our jurisdiction.”
The Assembly defendants appealed the ruling to the U.S. Supreme Court and the U.S. Supreme Court stayed the injunction pending final resolution of the appeal.
Puerto Rican Legal Defense and Education Fund v. Gantt, 796 F. Supp. 681 (E.D. N.Y. 1992)
Following the U.S. Supreme Court decision staying the federal district court’s injunction of the state court’s proceedings, Gantt v. Skelos, 504 U.S. 902 (1992) (mem.), the state court appointed three referees to develop a congressional redistricting plan. Concurrently, the three-judge federal court appointed a Special Master to prepare and recommend a congressional redistricting plan. On May 26, the Special Master presented his proposed plan to the Court. The Court received
55 written objections to the plan and convened a hearing on June 3, 1992, to hear the challenges to the Special Master’s plan. On June 5, 1992, the state court approved the plan that had been prepared by the three referees.
Subsequently, the Legislature adopted the state court’s congressional redistricting plan and the governor signed the legislation. The plan was then submitted to the U.S. Department of Justice for preclearance.
Although the State had adopted a redistricting plan, the federal court proceeded to adopt the Special Master’s plan as the temporary congressional redistricting plan for the State of New York. The Court reasoned that a redistricting plan prepared by a federal court was not subject to the preclearance requirement of § 5 of the Voting Rights Act. Therefore, if preclearance of the State’s plan were denied or delayed, the Special Master’s plan would serve as the congressional redistricting plan for the State of New York. The Court concluded that unless an approved redistricting plan were in place by July 8, 1992, the Special Master’s plan would serve as the congressional redistricting plan for the 1992 elections.
Review of Special Master’s Plan
In reviewing the Special Master’s plan, the Court reasoned that under federal law a redistricting plan must comply with two mandatory criteria, population equality and racial fairness. The Court also noted that the permissive criteria of contiguity, compactness, respect for traditional boundaries, maintenance of communities of interest and encouraging party competition may also be considered.
The Court was satisfied that the Special Master’s plan complied with the mandatory criteria. The plan contained a population deviation of less than .001 percent (two persons separated the largest and smallest district). The plan, according to the Court, fairly reflected minority-voting strength. The Court was satisfied that the African American and Hispanic districts that were created, although comprising less than 60 percent African American or Hispanic population, were sufficient to provide the African American and Hispanic communities, respectively, the opportunity to elect a candidate of their choice.
Preclearance of Federal Court Plan
The Court reasoned that a court-drawn legislative redistricting plan is not subject to preclearance unless the plan reflects the exercise of legislative judgment. As the Court explained, “the essential characteristic of a legislative plan is the exercise of legislative judgment, [i.e.,] a proposal reflecting the policy choices of the elected representatives of the people.”
The Court concluded that the Special Master’s plan does not reflect the exercise of legislative judgment. This conclusion was supported, according to the Court, by “the legislature’s vehement
56 dislike for [the Special Master’s] plan, expressed through their virtually-immediate adoption of the plan drawn by the state court referees.”
Puerto Rican Legal Defense and Education Fund v. Gantt, 796 F. Supp. 698 (E.D. N.Y. 1992), judgment vacated and remanded with instructions to dismiss appeal as moot sub nom. Gantt v. Skelos, 506 U.S. 801 (1992) (mem.)
Following the Court’s decision in 796 F. Supp. 681, the Department of Justice precleared the congressional redistricting plan adopted by the New York Legislature. The Department of Justice declared that “it is satisfied that the redistricting legislation was neither designed to discriminate against minority voters nor does it have a retrogressive effect on their voting rights.”
Notwithstanding preclearance, the PRLDEF plaintiffs asked the Court to enjoin implementation of the State’s congressional redistricting plan and instead impose the plan recommended by the Special Master. The PRLDEF plaintiffs argued that the State’s congressional redistricting plan did not sufficiently remedy prior dilution of the voting rights of Latinos and therefore violated § 2 of the Voting Rights Act. The defendants argued that since a congressional redistricting plan had been adopted and precleared this action was moot. If PRLDEF wished to challenge the congressional redistricting plan, they should file a new action.
The Court declined to grant PRLDEF’s motion for a preliminary injunction and dismissed the action as moot. The Court, however, did not “express or imply any opinion as to the merits of plaintiff’s claim that the state redistricting plan violates section 2 of the Voting Rights Act by diluting the voting power of the New York City Latino community.”
City of New York v. United States Department of Commerce, 822 F. Supp. 906 (E.D. N.Y. 1993) vacated and remanded 34 F.3d 1114 (2nd Cir. Aug. 8, 1994), rev’d sub nom. Wisconsin v. City of New York, 517 U.S. 1 (1996)
The Census Bureau has long acknowledged that its decennial count of the population misses some people. After each recent census, the Bureau has done a postenumeration survey of limited areas designed to determine the degree to which the census may have undercounted the total population. If the undercount were uniform across states and among racial and ethnic groups, it would not present a problem for reapportionment and redistricting, since those tasks are based not on absolute population but on relative population. But the postenumeration surveys have showed that some populations are more likely to be undercounted than others. In particular, they have showed that racial and ethnic minority populations are more likely to be undercounted than the White population.
In anticipation of another “differential undercount” in the 1990 census, the City of New York and several other plaintiffs sued the Department of Commerce, demanding that the Department make a statistical adjustment to the 1990 census count to increase the total population to the number suggested by a postenumeration survey, and also to increase the population within each state,
57 city, precinct, and block. The Department of Commerce agreed to conduct the postenumeration survey and prepared adjusted counts for the entire United States, but declined to adopt the statistically adjusted counts as the official census. The adjusted counts would have caused Wisconsin to lose one congressional seat, which would have been shifted to Arizona. The City of New York challenged the Department’s decision not to adjust, and the State of Wisconsin intervened to support the Department.
In Wisconsin v. City of New York, 517 U.S. 1 (1996), the Supreme Court upheld the decision of the Department of Commerce not to make the statistical adjustment. The Court found that, while the Constitution requires that there be a census, the particular mode of conducting the census is delegated to the Congress, which in turn has delegated it to the Secretary of Commerce. The decisions of the Secretary of Commerce on how to conduct the census “need only bear a reasonable relationship” to accomplishing the “actual enumeration” required by article I, section 2, clause 3. The decision of the Secretary not to adjust was based on the Secretary’s determinations that “distributive accuracy” of the census had historically been more important than “numerical accuracy,” that is, that the relative populations of various areas have been more important than their absolute populations; that the unadjusted census data would be most “distributively” accurate; and that an adjustment based on the postenumeration survey would not improve the “distributive” accuracy of the census. The Court found these bases were reasonable and well within the Secretary’s discretion.
Torres v. Cuomo, No. 92 Civ. 5811 (JSM), 1993 WL 33639 (S.D. N.Y. Feb. 3, 1993) (motion to dismiss challenge to 1992 congressional plan denied)
Diaz v. Silver, 932 F. Supp. 462 (E.D. N.Y. 1996)
Following the 1990 census and congressional reapportionment, New York was apportioned 31 congressional districts - a decrease of three seats. The Republican-controlled New York State Senate and Democratic-controlled New York State Assembly were unable to timely reach agreement on a new congressional redistricting plan. As a result, suits were filed in federal and state court requesting that the courts develop a congressional redistricting plan. Subsequently, a three-judge federal district court and a state court each developed its own redistricting plan.
The primary difference between the competing court-drawn plans concerned their treatment of minority districts and incumbents. Under the existing plan, African American voters were a majority in five districts, Latino voters were a majority in one district. The federal court plan created two majority-Latino districts, reduced the number of majority-African-American districts to four and declined to consider incumbency in the development of the plan. The state court plan, on the other hand, created one majority-Latino district, retained the five majority-African-American districts and sought to preserve the core of existing congressional districts and protect incumbents, to the extent possible, by avoiding placing more than one incumbent in a district.
58 The state court’s plan, drawn by a panel of three referees, was adopted on June 5, 1992. Reid v.Marino, No. 9567-92 (N.Y. Sup. Ct. Kings Cty. 1992). Subsequently, the federal court issued an order declaring that, unless any alternative redistricting plan were precleared by the Department of Justice under Section 5 of the Voting Rights Act by July 8, 1992, the federal court plan would serve as the redistricting plan for the 1992 elections. To avoid the possibility of the federal court plan taking effect, the Legislature then enacted the state court plan. The plan was precleared by the Department of Justice under Section 5 of the Voting Rights Act on July 2, 1992.
New York Congressional District 12 - 1992
Source: 978 F. Supp. 132, Appendix A.
In 1996, several Latino and African American voters residing in the new Latino-majority 12th Congressional District filed suit challenging the constitutionality of the district. The plaintiffs alleged that race was the predominant motive for the boundaries of the district and the State did not have a compelling justification or state interest to disregard traditional districting principles, nor was the 12th District narrowly tailored to further any asserted state interest. As a result, according to the plaintiffs, the “extraordinarily contorted, irregular and bizarre” shaped district was an unconstitutional racial gerrymander in violation of the 14th amendment. The plaintiffs sought to enjoin the use of the present plan for the 1996 elections.
59 The three-judge federal court assumed for purposes of a motion for a preliminary injunction that the plaintiffs had shown both irreparable harm and a likelihood of success on the merits, but denied the motion because it would “adversely affect the public interest.” The adverse effect was because there was not sufficient time to create a new plan in the few months between the proposed preliminary injunction in July and the fall elections. Plaintiffs had not presented an alternative plan that met the requirements of the Voting Rights Act, there was not sufficient time for the Legislature to draw a new plan, and the court was reluctant to impose a plan without providing the Legislature an opportunity to develop a remedial plan.
Diaz v. Silver, 978 F. Supp. 96 (E.D. N.Y.1997), aff’d sub nom. Silver v. Diaz, 118 S. Ct. 36 (1997) (No. 96-1680), Acosta v. Diaz, (No. 96-1904), Lau v. Diaz, (No. 96-2008) (mem.)
Following the 1996 election, plaintiffs and defendant-intervenor Puerto Rican Legal Defense and Education Fund (“PRLDEF”) moved for summary judgment. PRLDEF argued that, although the state court referees who drew the plan might have intended to segregate the districts by race and might have drawn districts that were not compact, the predominant motive of the Legislature was not racial but rather to protect incumbents and to embody communities of interest. They also argued that the several noncompact districts included in previous legislative and congressional plans showed that compactness was not a traditional districting principle in the State of New York.
Applicability of Strict Scrutiny
To succeed on a racial gerrymandering claim, plaintiffs must first prove that “race was the predominant factor motivating the legislature’s redistricting decision.” If plaintiffs satisfy this burden-- i.e. that all other legitimate redistricting principles were subordinated to race-- then the application of the strict scrutiny standard of judicial review is appropriate. Under strict scrutiny, the State is required to prove that the use of racial classifications in the challenged legislation was narrowly tailored to further a compelling state interest. Strict scrutiny imposes a very heavy burden on a jurisdiction; a burden few, if any, jurisdictions can ever satisfy.
Since the redistricting plan was drafted by the state court, the federal court reviewed the record of the state court proceeding, including the testimony and reports of the court’s experts, to determine whether race was the motivating factor for the boundaries of the 12th District. Following this review, the court held that the plaintiffs satisfied their initial burden--that race was the predominant factor in the state court’s creation of the plan. The court also reasoned that in addition to the state court record and testimony of the state court’s experts, the irregular or bizarre shape of the 12th Congressional District “is perhaps the most telling evidence of the predominant role of race in the formulation [of] the district’s lines.”
The court rejected the Legislature’s argument that because non-racial considerations, particularly incumbency protection, motivated the Legislature’s acceptance of the state court plan, the Legislature is not bound by the fact that race was the predominant factor in the creation of the
60 12th District by the state court. The court found, however, that based on statements by legislators during the legislative debate for the redistricting plan, the alternative plans and recommendations submitted to the courts by the Legislature and the preclearance submission to the Department of Justice, race was also paramount in the Legislature’s enactment of the plan. Nonetheless, even if race were not the motivating factor for the Legislature, the “Legislature must bear responsibility for the constitutional violations in its plans, even if the actions were a consequence of pressure imposed by the Department of Justice [or a state court’s] erroneous interpretation of the Voting Rights Act.”
The court held that “while incumbency took priority over all other traditional criteria in the creation of the districts, nevertheless it was at all times secondary to race.” Furthermore, “the need to comply with the perceived requirement of maximization of majority-minority districts was the predominant motive in the Legislature’s adoption of the [state court] plan, overriding any other concern including incumbency.” The plaintiffs, therefore, satisfied their initial burden and the burden shifted to the State to prove that the 12th District was narrowly tailored to further a compelling state interest.
Compelling State Interest
The defendants argued that compliance with Sections 2 and 5 of the Voting Rights Act was a compelling state interest that justified the use of racial classifications. The court, relying on the Supreme Court decision in Vera v. Bush, determined that a “majority of the [Supreme Court] justices support the position that compliance with the Voting Rights Act is a compelling state interest.” The court, therefore, assumed for the purpose of the pending summary judgment motion that compliance with the Voting Rights Act is a compelling state interest.
The court then reviewed whether the district was narrowly tailored to further the compelling state interest.
Narrowly Tailored
Section 2 of the Voting Rights Act. To establish that a district is narrowly tailored to satisfy the compelling state interest of complying with Section 2, the court held that the state must satisfy the three factors established by the U.S. Supreme Court in Thornburg v. Gingles:
! the minority group must be able to establish that it is sufficiently large and geographically compact to constitute a majority in a single-member district;
! the minority group must be able to show that it is politically cohesive; and
! the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it in the absence of special circumstances . . . to defeat the minority’s preferred candidate.
61 The court held that since the 12th District is not geographically compact and does not satisfy the first Gingles factor, “there was no legal justification for creating the 12th district to avoid a VRA Section 2 violation.” Unless a reasonably compact majority minority district can be created, Section 2 does not require a majority-minority district.
The court reasoned that “no one looking at a map of the 12th district could reasonably suggest that the district contains a geographically compact population of any race.” In reaching this conclusion, the court rejected the argument that for the purpose of the first prong of Gingles, “the compactness of the district in question must be compared to the average compactness of the state’s [other] districts to determine if there is a substantial deviation.” The court held that “the fact that New York, in general, is guilty of having non-compact districts does not abrogate the gross non-compactness of the 12th district for Gingles purposes. The court also noted that the state failed to offer any substantive evidence that the Latino voters of the 12th District satisfied the first prong of Gingles.
The 12th District was not, therefore, narrowly tailored to further the compelling state interest of complying with Section 2 of the Voting Rights Act.
Section 5 of the Voting Rights Act. The court also rejected the argument that the 12th district was narrowly tailored to comply with Section 5 of the Voting Rights Act. In order to obtain preclearance under Section 5, a State must show that its redistricting plan does not have a retrogressive impact on minority voters. To measure if a redistricting plan is retrogressive, courts have generally relied upon the number of majority-minority districts in the current and the previous plan. If the new plan does not decrease the number of majority-minority districts, the plan is not retrogressive and is entitled to preclearance.
Since the prior plan contained five majority-African-American districts and one majority-Latino district, “there would have been no retrogression, and thus no section 5 violation, had the legislature created only 6 majority minority districts rather than the 7 they did create.” The 12th District was not, therefore, narrowly tailored to further the compelling state interest of complying with Section 5 of the Voting Rights Act.
Conclusion
In granting summary judgment to the plaintiffs, the court determined that race was the predominant motivating factor for the creation of the 12th District. The court found that the 12th District was not compact, “probably violates the compactness criterion of New York law,” did not contain a community of interest, was not required under the Voting Rights Act and was drawn solely to elect a minority representative.
Although the State did have a compelling state interest to comply with the Voting Rights Act, the 12th District was not narrowly tailored to meet this compelling interest. The court ordered the State to develop a new congressional redistricting plan before July 30, 1997. The State complied.
62 North Carolina
The 12th Congressional District in North Carolina, as put in place for the 1992 election, is perhaps America’s best known congressional district. (The original Massachusetts “gerrymander” in 1812 may be more famous, but it was a legislative district.) North Carolina’s Congressional District 12 - 1992
12th was a kind of in vitro offspring of an unromantic union: Father was the 1980s/1990s judicial and administrative decisions under the Voting Rights Act, and Mother was the partisan and personal politics that have traditionally been at redistricting’s core. The laboratory that made this birth possible was the computer technology that became available for the 1990s redistricting cycle. The progeny won no Beautiful Baby contests. A Wall Street Journal editorial described the 12th as “political pornography.” Known as the “I-85 district,” the12th stretched 160 miles across the central Piedmont region of the State, for part of its length no wider than the freeway right-of-way.
The 1991 North Carolina General Assembly originally enacted a congressional plan with one minority district, the 1st, in the northeastern part of the State where demographics make a compact Black district easier to draw, especially if joined with the Black precincts of nearby Durham. That plan was disapproved by the U.S. Justice Department under the Voting Rights Act because of alleged lack of minority representation. (North Carolina’s Black population amounts to 22 percent of the total population. One district is only 8 percent of 12 districts. Two of 12 is 16 percent.) The General Assembly, then controlled by Democrats, responded in early 1992 by enacting the famous 12th. Republican legislators had proposed several plans that contained two
63 minority districts; in drawing the 12th, the Democratic leaders simply picked one of those plans and retooled it to be friendlier to Democrats.
In drawing the 12th in 1992, the General Assembly made use of the politically powerful Black community of Durham, removing it from the one minority district of the rejected 1991 plan. The 1st district in the 1992 plan was a predominantly Black district that, without Durham, was less compact. The State would later defend the two minority districts of 1992 as based on demographics other than race, with the 12th an urban Piedmont district and the 1st a rural eastern district.
North Carolina had been the center of redistricting litigation in the 1980s, with the challenge to its legislative districts in Gingles v.Edmisten, (later Thornburg v. Gingles) providing the occasion for the Supreme Court’s test for when minority districts were required. In its turn, the 1990s redistricting drew several challenges. The 12th Congressional District was not the only target, but it was the most notable one and the one that triggered redistricting law’s major innovation of the 1990s, the “Shaw Doctrine.”
Pope v. Blue, 809 F. Supp. 392 (W.D. N.C. 1992), aff’d mem. 113 S. Ct. 30 (1992)
Several Republican plaintiffs challenged the 1992 congressional plan on the grounds that it lacked compactness and lacked respect for communities of interest. The case was dismissed for failing to state a claim on which relief could be granted. That judgment was affirmed by the U.S. Supreme Court in September 1992.
Shaw v. Barr, 808 F. Supp. 461 (W.D. N.C. 1992), rev’d sub nom. Shaw v. Reno, 509 U.S. 630 (1993)
A different set of plaintiffs challenged the 1992 congressional plan, and specifically the 12th District, on the ground that it failed to respect communities of interest. The plaintiff’s attorney, Robinson O. Everett, was a Democrat, a Duke University Law Professor, and former Chief Justice of the U.S. Military Court of Appeals. (The State Republican Party later joined as a plaintiff-intervenor.) Mr. Everett alleged in the lawsuit, among other things, that Mr. Barr, the U.S. Attorney General, had misinterpreted the Voting Rights Act by, in effect, requiring racial quotas in redistricting as a standard for approval under Section 5. In April 1992, a three-judge federal panel in the Eastern District of North Carolina dismissed the lawsuit as failing to state a claim on which relief could be granted. The panel also ruled that it had no jurisdiction over a claim against the U.S. Attorney General. The plaintiffs appealed to the U.S. Supreme Court.
Shaw v. Reno, 509 U.S. 630 (1993)
On appeal as Shaw v. Reno, the legal theory on which the attack was based was endorsed by the Supreme Court. The Supreme Court did not actually rule that the plan was invalid. It only ruled that a racial gerrymander may, in some circumstances, violate the Equal Protection Clause. The
64 case was remanded to the district court to determine whether the districts had been drawn on the basis of race and, if so, whether the racial gerrymander that resulted was “narrowly tailored to further a compelling governmental interest.” 509 U.S. at 658.
The five-to-four majority opined that “reapportionment is one area in which appearances do matter.” 509 U.S. at 647. As Justice O’Connor said in her opinion for the Court:
A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls . . . . By perpetuating such notions, a racial gerrymander may exacerbate the very patterns of racial bloc voting that majority-minority districting is sometimes said to counteract. 509 U.S. at 648.
The Court said that a redistricting plan that is so bizarre on its face that it is unexplainable on grounds other than race demands the same strict scrutiny given to other state laws that classify citizens by race. 509 U.S. at 644.
The Court did not say that race-based redistricting is always unconstitutional. The Court recognized that:
[R]edistricting differs from other kinds of state decisionmaking in that the legislature is always aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors. That sort of race consciousness does not lead inevitably to impermissible race discrimination. . . . [W]hen members of a racial group live together in one community, a reapportionment plan that concentrates members of the group in one district and excludes them from others may reflect wholly legitimate purposes. The district lines may be drawn, for example, to provide for compact districts of contiguous territory, or to maintain the integrity of political subdivisions.
509 U.S. at 646.
But, when a State concentrates a dispersed minority population in a single district by disregarding “traditional districting principles such as compactness, contiguity, and respect for political subdivisions” the State is drawing a racial gerrymander that is subject to strict scrutiny. 509 U.S. at 647.
65 To survive strict scrutiny, a racial classification must be narrowly tailored to serve a compelling governmental interest. The Court acknowledged that eradicating the effects of past racial discrimination was a compelling governmental interest. But the Court warned that the State must have “a strong basis in evidence for concluding that remedial action is necessary,” 509 U.S. at 656, and that “race-based districting, as a response to racially polarized voting, is constitutionally permissible only when the State employs sound districting principles, and only when the affected racial group’s residential patterns afford the opportunity of creating districts in which they will be in the majority.” 509 U.S. at 657 (internal citations and quotations omitted). The Court anticipated that the State might assert on remand that complying with § 5 of the Voting Rights Act was a compelling governmental interest that justified the creation of District 12. But the Court warned that “A reapportionment plan would not be narrowly tailored to the goal of avoiding retrogression if the State went beyond what was reasonably necessary to avoid retrogression.” 509 U.S. at 655. The Court also noted that the State had asserted that the race-based district was necessary to comply with § 2 of the Voting Rights Act, but left the arguments on that question open for consideration on remand. 509 U.S. at 655-56.
In dissent, Justice White criticized the majority for focusing on the district’s shape, rather than on the political impact it would have. He chastised them for failing to adhere to the requirements he had enunciated in Davis v. Bandemer, 478 U.S. 109 (1986), for striking down a partisan political gerrymander under the Equal Protection Clause: that the plan have both a discriminatory purpose and a discriminatory effect on an identifiable group of voters. Since the plaintiffs had not alleged that the plan discriminated against either Blacks or Whites, Justice White would have affirmed the decision of the district court dismissing the claim. 509 U.S. at 658-75.
Justice Stevens pointed out that the Court already knew that the North Carolina Legislature had drawn the I-85 district to include a majority of African American residents. The Court didn’t need to examine the shape of the district to find that out. But, since the purpose of drawing the district was to enhance the minority’s electoral strength, rather than to diminish it, he saw no equal protection violation. Indeed, he found it “perverse” that the Court was using the Equal Protection Clause to deny African Americans, the people for whom the Equal Protection Clause was written, an improvement in their electoral representation. 509 U.S. at 679.
Shaw v. Hunt, 861 F. Supp. 408 (E.D. N.C. 1994), rev’d 116 S. Ct. 1894 (1996)
On remand, the federal district court found that the Legislature had intentionally drawn the plan to create two districts where blacks were an effective voting majority. 861 F. Supp. at 473-74. The Court then applied strict scrutiny to the plan and found that it was narrowly tailored to achieve a compelling state interest. Eradicating the effects of past racial discrimination was not a compelling state interest in this case, because that was not actually the reason the State created District 12. But complying with § 5 and § 2 of the Voting Rights Act were compelling state interests, and the district court found the plan was necessary to comply with both of those sections.
66 Shaw v. Hunt, 517 U.S. 899 (1996)
On the plan’s third trip to the Supreme Court, the Supreme Court reversed the district court for a second time. In an opinion by Chief Justice Rehnquist, the Supreme Court again assumed without deciding that complying with § 5 and § 2 was a compelling state interest, but found that the plan was not narrowly tailored to achieve that interest.
North Carolina had not previously had any Black-majority districts. The first plan drawn by the State had included one Black-majority district. A second Black-majority district was not necessary in order to avoid retrogression under § 5. 517 U.S. at 912.
To make out a violation of § 2, a plaintiff must show that a minority population is “sufficiently large and geographically compact to constitute a majority in a single-member district.” The Court noted that District 12 had been called “the least geographically compact district in the Nation.” 517 U.S. at 906. There may have been a place in North Carolina where a geographically compact minority population existed, but the shape of District 12 showed that District 12 was not that place. Since District 12 did not encompass any “geographically compact” minority population, there was no legal wrong for which it could be said to provide the remedy. 517 U.S. at 916.
The Supreme Court’s decision striking down the North Carolina plan was announced June 13, 1996. But the federal district court took no action to draw new districts for the 1996 election. Rather, the court referred the plan to the North Carolina Legislature, with instructions that it draw a new plan for use in the 1998 election. The Legislature met that deadline.
Congressional District 12 - 1997
67 The plan it enacted in 1997 pruned the ends and fattened the middle of the 12th Congressional District. It made the 1st and surrounding districts more compact. The plan quickly received Voting Rights Act preclearance. The Court essentially dismissed the Shaw lawsuit as moot, leaving room for a new case to be filed.
Cromartie v. Hunt, 34 F. Supp. 2d 1029 (E.D. N.C. 1998)
Shortly after the 1996 Supreme Court decision in Shaw, Robinson Everett filed a complaint against the 1st Congressional District on behalf of Martin Cromartie.
After the enactment of the 1997 plan, Mr. Everett amended the Cromartie complaint, challenging both new 1st and 12th districts in the 1997 plan. The amended complaint alleged that the new 1st and 12th congressional districts are unjustified racial gerrymanders. The new 12th, he argued, was “fruit of the poisonous tree”—the poisonous tree being the old 12th and the poison being its racially gerrymandered origins. The State argued in defense that strict scrutiny under Shaw should not apply to the 12th of 1997 because it was not a majority-minority district: Its total population was actually 51.59 percent White.
In April 1998, a three-judge federal panel in Eastern District of North Carolina granted Mr. Everett summary judgment in the case of the 12th District and a permanent injunction halting the 1998 congressional districts because of that district. (Candidate filing had ended two months before and the primary was a month ahead.) Although the opinion did not mention “fruit of the poisonous tree,” it did say that the 12th of 1997 was noncompact and showed evidence that race was the predominant factor in its design. The Court noted that as the district wound through certain counties and towns, the deciding factor in which precincts it picked up along the way seemed to be race rather than party. The State’s argument that the 12th was not quite a majority-minority district went unmentioned by the Court. The Court noted that the 1st district was not nearly so irregular as the 12th, and therefore did not justify summary judgment or injunctive relief.
The Court gave the Legislature a month and a half to revise the 1997 plan for a special congressional primary in September. The Legislature met the deadline, further pruning and fattening the 12th.
68 Congressional District 12 - 1998
The plan was used for the 1998 election while the district court’s decision was pending appeal to the U.S. Supreme Court. The legislation included a proviso that, if the appeal were successful, the 1998 plan would no longer be used and would be replaced by the 1997 plan.
(It was noted by some observers that the three-judge panel in the Shaw case consisted of two judges appointed by Democratic Presidents and one by a Republican President. In Shaw, that panel ruled against Mr. Everett’s clients three times to uphold a plan or the use of a plan. Each time the Republican appointee dissented. In the Cromartie case, however, the panel consisted of two Republican appointees and one Democratic appointee. That panel ruled 2-1 for Mr. Everett’s clients, with the Democratic appointee dissenting.)
Daly v. Leake, No. ______(E.D. N.C., 2nd amended complaint filed Oct. 8, 1997)
In July 1996, Jack Daly, a law student and Republican activist, and other plaintiffs filed a complaint against several congressional and legislative districts. They alleged racial gerrymanders under the Shaw doctrine. In October 1997, Daly amended his complaint to add plaintiffs with standing to challenge six congressional districts, seven state Senate districts, and eight state House districts. Some of the challenged legislative districts were majority-minority districts whose minority percentages the State had increased in 1992 because first-round Section 5 preclearance had been denied. Others were overwhelmingly White districts surrounding those
69 minority districts. A few others were majority-White districts not adjacent to minority districts. In those, Daly alleged that race was used as a proxy for party to create a partisan gerrymander.
In April 1998, the same three-judge panel that had a week earlier granted injunctive relief in Cromartie denied a preliminary injunction in Daly. The Court noted that Daly had waited seven months after filing his complaint before serving it on the defendants and had waited another 13 months before filing a motion for a preliminary injunction. Moreover, the Court noted he had presented no evidence other than a memo from himself as an expert witness, without demonstrating why he was qualified to be one. Such a record, the Court said, did not entitle Daly to emergency relief.
Hunt v. Cromartie, 526 U.S. 541 (1999)
On the congressional plan’s fourth trip to the Supreme Court (the third time it had been fully argued), the Supreme Court again reversed the district court. Justice Thomas spoke for all members of the Court in saying that it was error for the district court to have granted summary judgment for the plaintiffs that the plan was a racial gerrymander when defendants had submitted evidence that the motivation of the North Carolina General Assembly in drawing the plan was partisan rather than racial: to protect incumbents and to preserve the existing partisan balance in the State’s congressional delegation. Justice Stevens, on behalf of four members of the Court, concurred in the judgment and further noted that a “bizarre configuration is the traditional hallmark of a political gerrymander,” and that the most loyal Democrats living near the borders of District 12 happened to be black Democrats.
Cromartie v. Hunt, No. 4:96-CV-104-BO(3) (E.D. N.C. Mar. 7, 2000)
On remand, the district court held a three-day trial, after which the court concluded that both the 12th district and the 1st district boundaries had been drawn along racial lines for a predominantly racial motive. With regard to the 1st district, however, the court found that it was narrowly tailored to achieve the State’s compelling governmental interest in complying with § 2 of the Voting Rights Act and thus survived strict scrutiny. It enjoined further use of the 1997 plan’s 12th district, while permitting the continued use of the 1st district.
Easley v. Cromartie, 532 U.S. 234 (2001)
The U.S. Supreme Court stayed the March 7, 2000, order of the district court, thus allowing the 1997 plan to be used for the 2000 election. On June 26, 2000, the Supreme Court noted probable jurisdiction of the appeals. On April 18, 2001, it reversed. Writing for the five-justice majority, Justice Breyer said that “The evidence . . . does not show that racial considerations predominated in the drawing of District 12's boundaries. That is because race in this case correlates closely with political behavior.” Slip op. at 22. Justice Thomas, writing for the four dissenters, said the lower court ruling that the district was unlawfully based on race was not clearly erroneous and should not be overturned.
70 North Dakota
Grinnell v. Sinner, No. A1-92-066 (D. N.D.)
Native American plaintiffs alleged that the redistricting plan adopted by the 1991 Legislative Assembly of North Dakota violated the Voting Rights Act of 1965, the Fourteenth Amendment to the United States Constitution, and the Fifteenth Amendment to the United States Constitution. The plaintiffs alleged that the creation of a legislative district encompassing the Fort Berthold Indian Reservation and the at-large election for representatives from that district unlawfully diluted the voting strength of Native American voters on or near the Fort Berthold Indian Reservation. The federal district court dismissed the action based upon the plaintiffs’ inability to create a house subdistrict having a majority Native American population in the district, thus being unable to meet the first test set forth in Thornburg v. Gingles, 478 U.S. 30 (1986).
Ohio
Voinovich v. Ferguson, 63 Ohio St.3d 198 (1992)
The Ohio Supreme Court in a per curium decision found the challenged Senate District 22 to be constitutional. In Ohio, each senate district is comprised of three house of representatives districts. Each senate or house of representatives district ideally represents equal populations; a ratio of representation between the legislator and the number of persons in the district. Section 4, Article XI of the Ohio Constitution prohibits creation of a district containing less than 95 percent of the ideal senate ratio of representation, and the district in question deviated further, containing only 93.99 percent of the ideal senate ratio. Section 9 of Article XI of the Ohio Constitution provides that where the population of a county is at least 90 percent of a house of representatives ratio of representation, “reasonable effort shall be made to create a house district consisting of the whole county.” Section 11 provides that “counties having less than one senate ratio of representation, but at least one house of representatives ratio of representation shall be part of only one senate district.” The Ohio Supreme Court held that Sections 4, 9, and 11 of Article XI of the Ohio Constitution are coequal. When these provisions are irreconcilable, the Ohio Apportionment Board has the duty to choose the proper course, and the Ohio Supreme Court declined to require the Apportionment Board to correct one constitutional violation by committing another.
Quilter v. Voinovich, 794 F. Supp. 695 (N.D. Ohio 1992)
The District Court held that section 2 of the Voting Rights Act of 1965 (hereafter “the Voting Rights Act”) does not mandate the drawing of majority-minority districts wherever there is a concentration of Black voters. Because the Apportionment Board failed to conduct an adequate totality of the circumstances analysis as is required by the Voting Rights Act, the Apportionment
71 Board made no reliable finding of a past violation that would support the creation of majority-minority districts. The District Court ordered the Apportionment Board to reconsider the legislative apportionment plan. Unless the Apportionment Board could show justification for the plan under the totality of the circumstances test, the District Court would require the Board to submit a revised plan.
Quilter v. Voinovich, 794 F. Supp. 756 (N.D. Ohio 1992)
After the Apportionment Board submitted additional documentation and a revised plan, the District Court held that the Apportionment Board failed to justify its wholesale creation of majority-minority districts and so violated the Voting Rights Act. The District Court ordered a special master be appointed to draw a constitutional apportionment plan and enjoined any election for the Ohio General Assembly until the special master drew a constitutional plan and the plan was approved by the District Court. The District Court ordered that the 1992 primary election be moved from May 5, 1992, to June 5, 1992.
Voinovich v. Quilter, 503 U.S. 979 (1992)
The United States Supreme Court stayed the 794 F. Supp. 756 District Court order, pending final disposition of the appeal of the District Court’s judgment to the United States Supreme Court.
Quilter v. Voinovich, 794 F. Supp. 760 (N.D. Ohio Mar. 31, 1992)
The District Court rescheduled the 1992 primary date to September 8, 1992.
Quilter v. Voinovich, 794 F. Supp. 760 (N.D. Ohio May 5, 1992)
In this opinion, the District Court had to determine what legislative districts Ohio should use for the 1992 elections. The District Court held that the changes in the Apportionment Board’s revised plan were so extensive that it constituted a new plan (hereafter “the 1992 plan”). The special master had submitted a plan that, because of the pending appeal to the United States Supreme Court, was sealed but not reviewed. The District Court concluded that the 1981 districts, the districts under the 1991 plan, and the districts under the 1992 plan were all inadequate. The District Court held that Ohio should use the 1992 plan until a legally flawless plan could be found. The District Court ordered elections officials to truncate the deadlines in the Elections Laws as needed to conduct the 1992 primary election using June 2, 1992, as the primary date.
Voinovich v. Quilter, 507 U.S. 146 (1993)
The United States Supreme Court held that the 1991 plan did not violate section 2 of the Voting Rights Act. The District Court erred in failing to determine the consequences of the plan before ruling on its validity. The District Court also erred in placing the burden of proving the validity
72 of the 1991 plan on the proponents of the plan. The Voting Rights Act places this burden on the opponents of the plan. While federal courts cannot order the creation of majority-minority districts without a Voting Rights Act violation, this prohibition does not apply to the states. The District Court’s holding that the 1991 plan violated the Fifteenth Amendment to the United States Constitution is erroneous; the preference of the drafter of the plan for federal law over state law when the two appeared to conflict demonstrated obedience to the Supremacy Clause. Although the plaintiffs had established a prima facie case that the disparity among the districts violated the Equal Protection Clause of the Fourteenth Amendment, the District Court used an improper standard for determining whether the deviation from equal population violated Equal Protection guarantees. The Supreme Court remanded the case to determine whether the disparity is justified under the appropriate standard.
Quilter v. Voinovich, 857 F. Supp. 579 (N.D. Ohio 1994)
On remand, the District Court found that the population variations were justified under established constitutional standards. The District Court noted that whether a prima facie case of an Equal Protection violation is established depends principally on deviation from mathematical equality among legislative districts. A deviation of 0 percent to 10 percent is de minimis and no prima facie case of an Equal Protection violation exists. When the deviation exceeds 10 percent, there is a prima facie case of an Equal Protection violation, and the state must justify the legislative districts by: (1) articulating a rational state policy justifying the deviations, (2) explaining how the apportionment plan rationally advances the state policy, and (3) showing that the deviation does not exceed constitutional limits. The District Court concluded that the 1991 plan did not violate the one-person, one-vote guarantee of the Equal Protection Clause, as a genuine, rational state policy of preserving county lines was advanced to justify deviation from population equality among districts. The 1991 plan reasonably furthered that policy, particularly as all whole counties within applicable population limits had been preserved, and total deviation of 13.81 percent for house districts and 10.54 percent for senate districts fell within constitutional limits.
Quilter v. Voinovich, 157 F.R.D. 36 (N.D. Ohio 1994)
On the same day as the court issued the preceding opinion, the District Court granted the plaintiffs’ motion to file a second amended complaint, noting that the plaintiffs may have a meritorious constitutional claim under Shaw v. Reno, 509 U.S. 630 (1993).
Quilter v. Voinovich, 912 F. Supp. 1006 (N.D. Ohio 1995)
The District Court noted that under Shaw v. Reno, 509 U.S. 630 (1993), a plaintiff challenging an apportionment plan under the Equal Protection Clause may state a claim of racial gerrymandering by alleging that the plan, although race-neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification. An apportionment plan will be subjected to strict
73 scrutiny if the plaintiff shows that race was the predominant factor motivating the legislature’s decision to place a large number of voters within or without a legislative district and that the legislature subordinated traditional race-neutral districting principles (compactness, contiguity, and respect for political subdivisions) to racial considerations by either violating or abandoning traditional districting principles in favor of racial motivations or by substantially complying with traditional districting principles but giving them less weight than racial considerations. Although a state does not have to await a judicial finding that it has committed racial discrimination before it voluntarily takes remedial action to eradicate the discrimination, it must have a strong basis in evidence for its conclusion that remedial action was necessary. The District Court considered whether the 1991 plan, in creating “majority-minority” or “packed” districts, created more “majority-minority” districts than reasonably necessary to comply with the Voting Rights Act and whether the “majority-minority” districts contained substantially larger concentrations of minority voters than reasonably necessary to give minority voters a realistic opportunity to elect representatives of their choice in those districts. The District Court concluded that the “majority-minority” districts contained in the 1991 plan contained unnecessarily large concentrations of minority voters and that the 1991 plan had the reciprocal effect of reducing minority influence in other districts. Because the state failed to provide a legally cognizable justification for the “packing” of minorities in the “majority-minority” districts, the 1991 plan failed strict scrutiny analysis. The District Court ordered the “majority-minority” districts to be redrawn.
Voinovich v. Quilter, ___ U.S. ___, 116 S.Ct. 2542, 135 L.Ed.2d 1064 (1996)
The Supreme Court vacated the judgment of the District Court located at 912 F. Supp. 1006 and remanded the case for further consideration in light of Bush v. Vera, ___ U.S. ___, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996), and Shaw v. Hunt, ___ U.S. ___, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996).
Quilter v. Voinovich, ___ F. Supp. ___, 1997 U.S. Dist. LEXIS 17251, 1997 WL 687725 (N.D. Ohio Aug. 22, 1997)
On remand, the District Court held that the plaintiffs, including plaintiffs who were members of the Apportionment Board, did not have standing to challenge a number of the 1991 plan’s districts because the plaintiffs neither resided in those districts nor produced specific evidence that they personally had been subjected to a racial classification in relation to the drawing of those districts. For the remaining districts, the District Court applied the analysis derived from Shaw v. Reno, 509 U.S. 630 (1993); Miller v. Johnson, 515 U.S. 900 (1995); Shaw v. Hunt, ___ U.S. ___, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996); and Bush v. Vera, ___ U.S. ___, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996), and found that, although race was a substantial factor in drawing the challenged districts, it was not a dominant and controlling rationale to which traditional districting principles (compactness, contiguity, and respect for political subdivisions) were subordinated. Race was a factor that was considered within the constraints of traditional districting principles, and so strict scrutiny of the challenged districts was not appropriate. Under
74 rational basis scrutiny, the Apportionment Board had a rational basis for creating the challenged districts, and so there was no violation of the Equal Protection Clause.
Oklahoma
There were no cases.
Oregon
Ater v. Keisling, 312 Or. 207, 819 P.2d 296 (1991), consol. with Bugas v. Keisling and Paulk v. Keisling
The Oregon Constitution requires the Secretary of State to prepare a state legislative redistricting plan if the Legislature fails to enact a plan by July 1 of the year following the census. The 1991 Oregon Legislature did not enact a plan by the deadline; therefore, the Secretary did so and filed the plan with the Oregon Supreme Court in August 1991. Five petitioners challenged the Secretary of State’s plan. The Oregon Supreme Court consolidated the cases for review. In dismissing three of the petitions, the Court held that: (1) the Secretary’s decision to adopt a plus-or-minus one percent deviation standard was not irrational or contrary to the redistricting provisions of the Oregon Constitution; and (2) the Secretary’s adoption of the deviation standard did not show that the Secretary failed to give consideration to other statutory redistricting criteria. Two petitions alleged technical errors in the Secretary’s plan. The Secretary conceded that some census blocks were assigned to districts to which they were not contiguous due to errors made by the United States Census Bureau and due to errors in the Secretary’s computer program. The Court voided the Secretary’s plan and directed the Secretary to submit a corrected redistricting plan to the Court on or before December 1, 1991.
Linder v. Keisling, 312 Or. 316, 821 P.2d 1089 (1991)
In Ater, the Oregon Supreme Court had directed the Oregon Secretary of State to make corrections in the Secretary’s state legislative redistricting plan. The Secretary of State made corrections in the plan and filed the corrected plan with the Oregon Supreme Court on November 18, 1991. The Court noted that the corrections described in Ater had been made and approved the redistricting plan. The plan became operative on December 15, 1991.
Berkman v. Roberts, No. 91-775 RE (D. Ore. 1991)
The 1991 Oregon Legislature did not enact a congressional redistricting plan before it adjourned. Following adjournment of the Legislature, a special joint legislative committee drafted a congressional redistricting plan. However, the Legislature was not called into special session (either by the Governor or by a majority of both houses) to consider adoption of the plan.
75 Therefore, in December 1991, the Federal District Court in Portland adopted the congressional redistricting plan drafted by the special legislative committee.
Republican Party of Oregon v. Keisling, 959 F.2d 144 (9th Cir. 1992), cert. denied, 504 U.S. 914 (1992).
The Oregon Constitution requires the Secretary of State to prepare a state legislative redistricting plan if the Legislature fails to enact a plan by July 1 of the year following the census. The 1991 Oregon Legislature did not enact a plan by the deadline; therefore, the Secretary did so and filed the plan with the Oregon Supreme Court in August 1991. The Court approved the plan in December 1991. The Secretary’s plan assigned incumbent State Senators to newly drawn districts. The Oregon Legislature has 30 Senators, one-half of whom are elected every two years. As a result of the assignment of incumbent Senators to new districts, some voters who were formerly represented by Senators whose terms were to expire in January 1993 wound up being represented by Senators whose terms would not expire until January 1995. Therefore, those voters would have to wait six years to vote for a Senator instead of four years like most other voters. The Oregon Republican Party contended that requiring these voters to wait an additional two years for their next vote violated the First Amendment rights of the affected voters. The Ninth Circuit Court rejected the Republican Party’s challenge and held that: (1) there is no First Amendment right to vote for State Representatives on a particular schedule; and (2) in the context of reapportionment, a temporary dilution of voting power (resulting from having to wait six years instead of four years to vote) that does not unduly burden a particular group does not violate the Equal Protection Clause of the Fourteenth Amendment.
Pennsylvania
In re 1991 Pennsylvania Legislative Reapportionment Commission, 530 Pa. 335, 609 A.2d 132 (1992), cert. denied sub nom. Walker v. Pennsylvania Legislative Reapportionment Commission, 504 U.S. 921 ( 1992), and Pecora v. Pennsylvania Legislative Reapportionment Commission, 505 U.S. 1207 (1992), and Loeper v. Pennsylvania Legislative Reapportionment Commission, 506 U.S. 819 (1992)
Plaintiffs challenged the legislative apportionment plan adopted by the Legislative Reapportionment Commission on the grounds that it violated the state constitutional requirement for compactness and contiguity and equality of population and the state constitutional prohibition against dividing political subdivisions unless absolutely necessary, that it violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, that it was a partisan political gerrymander, that it violated the Voting Rights Act, and that it had various other infirmities.
The Supreme Court of Pennsylvania upheld the plan against all challenges. It found that dividing some political subdivisions was necessary to achieve equality of population and that the Commission had acted properly in making equality of population the overriding objective. It
76 rejected the claim that the plan was a political gerrymander because the plaintiffs, two candidates seeking to run against incumbents, submitted no evidence that they were part of an identifiable group suffering a history of disenfranchisement or lack of political power. The Court rejected the claim that the plan violated the Voting Rights Act because the Black-majority districts it created had Black voting age populations of less than 65 percent. The Court found that Black voting age populations of 56 to 58 percent were sufficient to give Black voters an opportunity to elect representatives of their choice in four of the seven Senate districts in Philadelphia, which was an increase over the three Black-majority districts under the former plan.
Harrison v. Pennsylvania Legislative Reapportionment Commission, No. 92-0603, 1992 WL 95909 (E.D. Pa. Apr. 21, 1992)
Following the final order of the Supreme Court of Pennsylvania upholding the legislative plan, plaintiffs attacked it in federal court as a violation of § 2 of the Voting Rights Act because none of the four Black-majority districts in Philadelphia had a total Black population of at least 65 percent. The single-judge court rejected the challenge, refusing to adopt 65 percent as a hard and fast requirement and finding that the percentage of African Americans in each district was sufficient to ensure that they could both nominate and elect candidates of their choice. The Court found that there was a substantial percentage of crossover voting by white voters for African American candidates, that the adopted plan had the unanimous support of all minority organizations, and that no minority organization was supporting plaintiffs’ challenge.
Donatelli v. Casey, 826 F. Supp. 131 (E.D. Pa. 1993), aff’d sub nom. Donatelli v. Mitchell, 2 F.3d 508 (3rd Cir. 1993)
As part of its new legislative plan, the Legislative Reapportionment Commission had collapsed the old Senate District 44 in Allegheny and Westmoreland counties in western Pennsylvania into the old District 43 and had created a new District 44 in eastern Pennsylvania from parts of the counties of Berks, Chester, Lehigh, and Montgomery. Pennsylvania senators serve staggered terms, and while the senators from odd-numbered districts were scheduled to be elected at the 1992 general election, senators from even-numbered districts were not scheduled to be elected until 1994. Senator Pecora, who had previously been elected from the old District 44 but moved his residence east to reside in the new District 44, continued to represent the 44th district, even after it had been moved 250 miles across the state to a region where none of the voters in the new district had had an opportunity to vote for or against him. The Senate considered the question of whether a vacancy had been created in District 44 and resolved that it had not. Plaintiff voters in the new 44th district brought an action under 42 U.S.C. § 1983 alleging a violation of the Equal Protection Clause and demanding that an election be held in District 44 “as soon as possible.”
A single-judge federal district court evaluated the equal protection challenge using the rational basis test and found that the substantial population shift within the State justified the creation of a new district in the east and that the disenfranchisement of the voters in District 44 was temporary—until the 1994 election. The Court of Appeals affirmed.
77 Mellow v. Mitchell, 530 Pa. 44, 607 A.2d 204 (1992), cert. denied sub nom. Loeper v. Mitchell, 506 U.S. 828 (1992)
The 1991 reapportionment of seats in Congress caused the number of Pennsylvania’s congressional seats to decrease by two, from 23 to 21. The Pennsylvania Legislature failed to enact a 21-seat redistricting plan. Plaintiffs asked the Commonwealth Court to declare the 23- seat plan invalid and to adopt a plan if the Legislature failed to enact a constitutional plan by a deadline set by the Court. The Supreme Court of Pennsylvania took plenary jurisdiction of the matter and appointed a Commonwealth Court judge as Master to hold hearings and draw a plan. This the Master did, selecting a plan submitted by one of the parties that had a higher population deviation than two other plans but also split fewer counties, localities, and precincts than they did, increased the number of African-American-majority districts from one to two, and best preserved communities of interest.
The Supreme Court of Pennsylvania upheld the plan against an equal-population challenge, holding that the “total maximum deviation” of .0111 percent was “fully justified by the policy of preserving the boundaries of municipalities and precincts.” The Court also upheld the plan against a challenge based on § 2 of the Voting Rights Act, since it was the only plan that increased the number of African-American-majority districts. The Court found that total African American populations of 52.4 percent and 62.242 percent were sufficient to allow African American voters to elect candidates of their choice, since African American participation in Democratic primary elections in Philadelphia was actually higher than that of whites and there was significant white crossover voting in favor of Democratic African American candidates in Philadelphia.
Valenti v. Mitchell, 790 F. Supp. 534 (E.D. Pa. 1992) (state court’s candidate filing deadline enjoined); 790 F. Sup. 551 (E.D. Pa. 1992) (further injunction denied); 790 F. Supp. 555 (injunction denied), aff’d, 962 F.2d 288 (3rd Cir. 1992)
In its order of March 10, 1992, adopting a congressional redistricting plan, the Supreme Court of Pennsylvania had established a revised schedule for candidates to collect signatures and file petitions to be placed on the ballot for the April 28, 1992 primary election. Since the congressional plan was the last piece of the redistricting puzzle to be put into place, the revised schedule covered, not only candidates for Congress, but also candidates for the Legislature, for President, and for delegate to the party conventions. March 10 was made the first day to collect signatures, and March 19 was the deadline for filing the petitions. Several candidates petitioned the federal district court to enjoin officials of the Commonwealth of Pennsylvania from refusing to accept petitions filed after the deadline, on the ground that the deadline was unreasonably short and thus denied them their First Amendment right of freedom of association and denied them their right under the Fourteenth Amendment to equal protection of the laws.
The federal district court, in a series of orders, held that the Rooker-Feldman doctrine prevented it from reviewing the orders of a state court as to parties who had been given a “realistic
78 opportunity to fully and fairly litigate” their claims in state court, at least to the extent that the order of the state court was an “adjudicative act,” i.e., the application of existing law to specific facts and parties. It denied relief to petitioners who had been parties to the state court action or who had petitioned the state court for relief from its scheduling order. It granted injunctions and a delay of the filing deadline until April 6 as to candidates who had not been parties to the state court action and who had made diligent efforts to gather signatures by the deadline, based on the Court’s conclusion that the schedule adopted by the state court denied the petitioners their First Amendment rights. The Court held that review of the revised election schedule was not precluded by the Rooker-Feldman doctrine, since the order adopting the schedule was a “nonadjudicative act,” i.e., it promulgated a general rule applicable to as-yet-unidentified parties. The Court found no Equal Protection Clause violations.
The Court of Appeals affirmed. It declined to decide whether the revised election schedule was an adjudicative or a nonadjudicative act and instead based its decision on the fact that the petitioners to whom injunctions were granted had not been parties to the state court proceeding and thus would not barred by the Rooker-Feldman doctrine even if the order adopting the schedule were construed to be an adjudicative act.
Nerch v. Mitchell, No. 3:CV-92-0095, (M.D. Pa. Aug. 13, 1992) (per curiam)
Plaintiffs filed three suits in federal district court that paralleled the suit in state court seeking to have the 1982 congressional plan invalidated and, in the absence of legislative action, a new plan drawn by the court. The three-judge federal court stayed its own proceedings pending the outcome of the state court proceedings.
After the Supreme Court of Pennsylvania adopted its congressional plan, the Nerch, Barness, and Ryan plaintiffs challenged it on the grounds that its overall range of 57 persons violated the Equal Protection Clause of the Fourteenth Amendment and that the reduction of the African American population in District 2 (Philadelphia) and District 14 (Pittsburgh) violated § 2 of the Voting Rights Act and the Fifteenth Amendment to the U.S. Constitution. Some of the plaintiffs had participated in the state court action and some had not. None of the plaintiffs in the state court action were African Americans entitled to vote in either of the districts challenged under § 2.
The Court dismissed the complaints of the parties who had participated in the state court action on the basis of the Rooker-Feldman doctrine. It found that none of the parties to the state court action had had standing to raise the § 2 claims, since none were African Americans entitled to vote in either of the challenged districts, and that it was therefore proper for the federal court to consider those claims when brought by African American voters in those districts.
The Court dismissed the equal-population challenge. It found that the adoption by the state court of a policy to avoid splitting political subdivisions was “the functional equivalent of a similar
79 legislative or constitutional declaration,” and that each deviation from the ideal population was necessary to avoid splitting a political subdivision or precinct.
The Court likewise dismissed the § 2 challenge. It found the drop in African American population of District 14 (Pittsburgh) from 23.86 percent to 17.811 percent was accompanied by no evidence of discriminatory intent. And it found the plaintiffs had failed to prove it would have a discriminatory effect, especially since there was no evidence that the African American population was sufficiently large and geographically compact to constitute a majority of in district. The drop in African American population of District 2 (Philadelphia) from 81 percent to 62 percent, without more, was not proof of discriminatory effect.
In the absence of proof of intentional discrimination, the Court dismissed the Fifteenth Amendment challenge.
Barness v. Mitchell, No. ______(E.D. Pa.) consol. with Nerch v. Mitchell
Ryan v. Mitchell, No. 1:CV-92-0166 (M.D. Pa.) consol. with Nerch v. Mitchell
Rhode Island
There were no cases.
South Carolina
Burton v. Sheheen, 793 F. Supp. 1329 (D. S.C. 1992), vacated and remanded sub nom. Statewide Reapportionment Advisory Committee v. Theodore, 508 U.S. 968 (1993) (mem.), and Campbell v. Theodore, 508 U.S. 968 (mem.)
Plaintiffs brought suit alleging that the State had failed to enact new congressional and state legislative redistricting plans and that the existing plans violated one person, one vote and Section 2 of the Voting Rights Act. The General Assembly subsequently passed new state legislative plans, but the Governor vetoed them and the General Assembly was unable to override the veto. The General Assembly was unable to agree on a congressional redistricting plan. The parties then stipulated that the legislative process was at an impasse and that the existing plans violated one person, one vote. The court then drew its own plans, which were used in the 1992 elections. The Supreme Court vacated the lower court’s judgment and remanded for further consideration in light of the argument of the United States that the lower court had, inter alia, failed to perform a plenary analysis of whether its plans complied with Section 2. The Court did not, however, set aside the 1992 elections. Following the remand, the General Assembly passed and obtained preclearance of new congressional and state legislative plans. The Court then dismissed the case. The plaintiffs sought attorneys’ fees, but the court denied their request.
80 The Fourth Circuit affirmed the denial of attorneys’ fees, and the Supreme Court denied certiorari.
Smith v. Beasley, 946 F. Supp. 1174 (D. S.C. 1996)
Plaintiffs challenged the state legislative plans drawn by the General Assembly following the remand in Statewide Reapportionment Advisory Committee v. Theodore, supra. These plans created more Black-majority districts than the plans drawn by the Burton court. Plaintiffs alleged that nine State House districts and three State Senate districts violated Shaw v. Reno and Miller v. Johnson. The trial court held six House districts and three Senate districts unconstitutional on the grounds that race was the predominant factor in the drawing of these districts and that the districts were not narrowly tailored to achieve a compelling government interest. The court also held that the 1996 elections could go forward using the unconstitutional plans but that special elections would have to be held in 1997 in any districts that had to be redrawn as a result of the court’s ruling. After the 1996 elections, the General Assembly passed new state legislative plans. The Attorney General precleared the House plan, and plaintiffs challenged two of the new House districts, arguing that they were still unconstitutional. The trial court rejected the plaintiffs’ challenge. The Attorney General objected to the new Senate plan, and the trial court drew a plan of its own for the Senate.
Leonard v. Beasley, Civil No. 3:96-CV-3640 (D. S.C.)
Plaintiffs challenged the constitutionality of South Carolina’s 6th Congressional District, a Black-majority district drawn in 1994 after the remand in Statewide Reapportionment Advisory Committee v. Theodore, supra. Plaintiffs alleged that race was the predominant factor in the drawing of this district and that it was not narrowly tailored to serve any compelling governmental interest. Before trial, the case was settled. Under the settlement agreement, plaintiffs agreed to dismiss their action without prejudice and not to reinstate it until after the end of the year 2000 session of the General Assembly, in order to give the General Assembly time to address congressional redistricting. The parties further agreed that if the plaintiffs reinstated their action, the parties would stipulate that traditional redistricting principles were subordinated to racial considerations in the drawing of the current 6th District, that the State has a compelling interest in drawing a Black-majority congressional district of at least 50 percent Black voting age population (BVAP), and that several different configurations of such a district could be drawn that would be narrowly tailored.
South Dakota
In the Matter of the Construction of Article III, § 5, of the South Dakota Constitution, 464 N.W.2d 825 (S.D. 1991)
A question was presented by the Governor to the justices of the Supreme Court. The Supreme Court held that, under constitutional amendments governing legislative apportionment, which
81 eliminated any role of the Governor in the redistricting process, an opinion on whether senatorial districts had to be uniformly split into single-member house districts would be an advisory opinion to the redistricting preparation committee of the Legislature, which was outside the authority of the Supreme Court.
Tennessee
Langsdon v. Millsaps, 836 F. Supp. 447 (W.D. Tenn. 1993) aff’d sub nom. Millsaps v. Langsdon, 510 U.S. 1160 (1994)(mem.)
The plaintiffs challenged the 1992 House of Representatives redistricting plan as unconstitutional under the “one person, one vote” standards of the Fourteenth Amendment, as an illegal partisan gerrymander, and as a violation of Section 2 of the Voting Rights Act. The three-judge panel in the district court declared the House Plan to be unconstitutional under the “one person, one vote” standard of the Equal Protection Clause. The state had argued that, due to a state constitutional prohibition on splitting counties and an earlier decision of the State Supreme Court (State ex rel. Lockert v. Crowell, 656 S.W.2d 836 (Tenn. 1983)) allowing a total variance up to 14 percent, the state plan with a variance of 13.9 percent should be allowed as necessary to comply with the state constitutional prohibition on splitting counties. The plaintiffs submitted a plan that split fewer counties than the House Plan with a total variance of less than ten percent. The court held “It is patently unreasonable to justify a 14 percent variance on the basis of not splitting county lines when fewer counties may be split while simultaneously decreasing that variance below the 10 percent goal.”
Rural West Tennessee African-American Affairs Council, Inc. v. Mcwherter, 836 F. Supp. 453 (W.D. Tenn. 1993), vacated and remanded, 512 U.S. 1248 (1994)(mem)
In Rural West I, the three-judge panel held that the Senate Plan violated Section 2 of the Voting Rights Act and that the Senate must draw a new plan with one additional majority-minority district to attain substantial statewide proportionality. The court defined a 55 percent voting age majority necessary to constitute a majority-minority district.
Rural West Tennessee African-American Affairs Council, Inc. v. Mcwherter, 877 F. Supp. 1096 (W.D. Tenn 1994), aff’d sub nom. Rural West Tennessee African-American Affairs Council, Inc. v. Sundquist, 116 S. Ct. 42 (1995)(mem.)
On remand in Rural West II, the court found that the Senate Plan did not violate Section 2 of the Voting Rights Act due to the inclusion of three influence districts (defined as 25 percent - 55 percent voting age minority population) in the “totality of the circumstances” analysis. When the influence districts were included, the court considered there to be substantial proportionality. Expressing a reluctance to interfere with the political judgments made by the legislature if substantial proportionality exists, the three-judge panel then upheld the Senate Plan.
82 Langsdon v. Darnell, 9 F. Supp.2d 880 (W.D. Tenn. 1998)
The Tennessee General Assembly enacted Chapter 536 of the Public Acts of 1994, which included alternative redistricting plans for the Tennessee House of Representatives. The three- judge panel found that Plan A was in accord with one person, one vote but delayed further consideration pending the Supreme Court's decision in Rural West I and II. After the Supreme Court affirmed Rural West II, the plaintiffs filed an amended complaint challenging Plan A on § 2 grounds only, i.e. that Plan A dilutes minority voting strength in rural west Tennessee. Having no constitutional claims at issue, the three-judge panel disbanded and the action was continued before a single judge.
On cross-motions for summary judgment, the district court concluded that the statistics of the area challenged, not another region or the entire state, guide the court in assessing a voter dilution claim. In addition, the court opined that the plaintiffs could narrow the area of dispute and that the Gingles preconditions operated to eliminate overly narrow claims. In denying summary judgment, the court noted that the record did not include a detailed analysis of the two most recent legislative elections held in rural west Tennessee since the 1994 plan was adopted and, in the absence of such an analysis, summary judgment was inappropriate.
Rural West Tennessee African-American Affairs Council v. Sundquist, 29 F. Supp.2d 448 (W.D. Tenn. 1998), aff’d 209 F.3d 835 (6th Cir. 2000), cert. denied, ___ S.Ct. ___, 2000 WL 1201466, 69 USLW 3156 (U.S. Oct 16, 2000) (NO. 00-254)
After a trial on the merits, the district court concluded that in evaluating the third Gingles precondition, i.e. whether the white majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate, greater weight may be given to black-white elections than white-white elections. In addition, the district court accorded greater weight to legislative elections than other countywide races. The district court found Plan A in violation of § 2 of the Voting Rights Act in that, under the totality of circumstances, Plan A diluted minority voting strength in rural west Tennessee. By terms of Chapter 536, alternate Plan B, which included an additional minority-majority district in rural west Tennessee, became effective upon constitutional invalidation of Plan A.
Texas
Mena v. Richards, No. C-454-91-F (332nd Dist. Ct., Hidalgo County, complaint filed 1991) (originally a challenge to use of census, later amended to challenge legislative redistricting plans; served as vehicle for Senate, House settlements)
Quiroz v. Richards, No. C-4395-91-F (332nd Dist. Ct., Hidalgo County, complaint filed 1991) (vehicle for Senate settlement)
Terrazas v. Ramirez, 829 S.W.2d 712 (Tex. 1991)
83 This was an original proceeding brought in the Texas Supreme Court to challenge settlements for the state Senate reached in district court in Hidalgo County in Mena v. Richards and Quiroz v. Richards. A fractured Supreme Court found that the State’s Attorney General did have the power to enter a settlement agreement in redistricting litigation on behalf of the State. However, the Supreme Court found that the district court erred when approving the settlement as it did not provide an opportunity for other interested parties to intervene and be heard. Accordingly, the Supreme Court vacated the district court’s order approving the settlement and found that further proceedings in the district court must allow for other interested parties to intervene and be heard and for deference to the legislative branch in remedying any constitutional defects in redistricting plans. Further litigation in Mena was essentially preempted by the federal district court in Terrazas v. Slagle.
Craddick v. Richards, No. A-38,899 (238th Dist. Ct., Midland County, complaint filed Jan. 8, 1992, case not prosecuted and dismissed 1995) (challenge to house and senate plans)
Terrazas v. Slagle, 789 F. Supp. 828 (W.D. Tex. 1991), aff’d sub nom. Richards v. Terrazas, 112 S. Ct. 3019 (1992) (mem.) and Slagle v. Terrrazas, 113 S. Ct. 29 (1992) (mem.)
This was a proceeding brought against state legislative and congressional districts as violating the Fourteenth and Fifteenth Amendments to the U.S. Constitution and § 2 of the Voting Rights Act. A three-judge federal panel found the congressional plan legal. At the time the court decided this case, there were no plans enacted by the State for the state House and Senate that would be effective in time for the primary election. The Court imposed court-drawn plans for 1992.
Terrazas v. Slagle, 821 F. Supp. 1154 (W.D. Tex. 1992)
The three-judge federal panel ruled that the State must use the court-ordered plan for the state Senate for 1992 general election, even though the state-enacted plan was then effective because primaries had already been held under the court-ordered plan and the State’s scheme to substitute the state-enacted plan for the general election had not received preclearance.
Terrazas v. Slagle, 821 F. Supp. 1162 (W.D. Tex 1993) (per curiam)
The three-judge federal panel granted summary judgment for the State on a challenge to the House redistricting plan because the current plan had not been challenged on any grounds. The State was also granted summary judgment on the Senate plan on partisan gerrymandering and § 2 challenges. The finding on the § 2 challenge was unusual because an earlier version of the same panel found sua sponte that the Senate plan did violate § 2. The Court concluded that the previous conclusory finding was not necessary in the context of the order that it accompanied. Finally, the State was granted summary judgment on both § 2 and partisan gerrymandering challenges to its congressional plan. The opinion contains a useful discussion on summary judgment in the context of a partisan gerrymandering case.
84 Texas v. Mosbacher, 783 F. Supp. 308 (S.D. Tex. 1992) (motion denied to dismiss challenge to refusal to adjust population count)
Texas v. United States, 785 F. Supp. 201 (D. D.C. 1992)
The State brought a proceeding in federal district court for the District of Columbia for preclearance of House, Senate, congressional, and State Board of Education plans. Only the Senate plan was contested. The Court held that earlier preclearance of the Mena settlement plan did not act as preclearance for the later legislative-enacted version of the same plan. The Court noted that in the meantime the Terrazas court had ordered a plan and that the legislative version of Mena had to be compared to the court-ordered plan.
Texas v. United States, 802 F. Supp. 481 (D. D.C. 1992)
The Court granted the State’s motion for summary judgment preclearing the Senate plan. The Department of Justice did not oppose this motion, but interveners in the case did. Interveners argued that the plan was not entitled to preclearance because the Terrazas panel had found that it violated § 2. The Court found that it was not bound by the Terrazas finding because the issue had not been litigated in the Terrazas case and the finding was not essential to resolving the case before the Terrazas panel. Summary affirmance of the Terrazas decision by the U.S. Supreme Court only affirmed the judgment and not the specific statements of the decision.
Vera v. Richards, 861 F. Supp. 1304 (S.D. Tex.1994), aff’d sub nom. Bush v. Vera, 116 S. Ct. 1941 (1996)
Congressional District 30 Congressional District 29 Congressional District 18
Under the 1990 reapportionment of seats in Congress, Texas was entitled to three additional congressional districts. The Texas Legislature decided to draw one new Hispanic-majority
85 district in South Texas, one new African-American-majority district in Dallas County (District 30), and one new Hispanic-majority district in the Houston area (District 29). In addition, the Legislature decided to reconfigure a district in the Houston area (District 18) to increase its percentage of African Americans. The Texas Legislature had developed a state-of-the-art computer system that allowed it to draw congressional districts using racial data at the census block level. Working closely with the Texas congressional delegation and various members of the Legislature who intended to run for Congress, the Texas Legislature took great care to draw three new districts and reconfigure a district that the chosen candidates could win.
The Justice Department precleared the plan under § 5 of the Voting Rights Act and it was used in the 1992 election.
Plaintiffs challenged 24 of the state’s 30 congressional districts as racial gerrymanders. The federal district court struck down three, Districts 18, 29, and 30, but the decision was stayed pending appeal, so the plan continued in use for the 1994 election.
Bush v. Vera, 116 S. Ct. 1941 (1996)
In June of 1996, the Supreme Court affirmed the district court’s decision throwing out those three districts. The Court, in a plurality opinion written by Justice O’Connor, found that the plan was subject to strict scrutiny. She repeated what the Court had said in Shaw v. Reno, 509 U.S. 630 (1993), that strict scrutiny does not apply merely because redistricting is performed with consciousness of race. She added that strict scrutiny does not apply in all cases of intentional creation of majority-minority districts, such as the compact districts created by a state court in California. But strict scrutiny does apply where race was the predominant factor in drawing district lines and traditional, race-neutral districting principles were subordinated to race. 116 S. Ct. at 1951.
The State argued that the bizarre shape of District 30 in Dallas County was explained by the drafters’ desire to unite urban communities of interest and that the bizarre shape of all three districts was attributable to the Legislature’s efforts to protect incumbents of old districts while designing the new ones. The Supreme Court upheld the district court’s finding to the contrary, holding that race was the predominant factor. 116 S. Ct. at 1959-60.
The Court again assumed without deciding that complying with § 2 of the Voting Rights Act was a compelling state interest, 116 S. Ct. 1960, (in her separate concurring opinion, Justice O’Connor said that it is a compelling state interest), but found that the districts were not narrowly tailored to comply with § 2 because all three districts were bizarrely shaped and far from compact as a result of racial manipulation. To the extent there was political manipulation, race was used as a proxy for political affiliation. It was race that predominated. 116 S. Ct. at 1961.
86 Justice O’Connor further noted that:
[B]izarre shape and noncompactness cause constitutional harm insofar as they convey the message that political identity is, or should be, predominantly racial. . . . [C]utting across pre-existing precinct lines and other natural or traditional divisions, is not merely evidentially significant; it is part of the constitutional problem insofar as it disrupts nonracial bases of identity and thus intensifies the emphasis on race.
116 S. Ct. at 1962.
The court pointed out that, if the minority population is not sufficiently compact to draw a compact district, there is no violation of § 2; if the minority population is sufficiently compact to draw a compact district, nothing in § 2 requires the creation of a race-based district that is far from compact. 116 S. Ct. at 1961.
How compact must a race-based district be? Reasonably compact.
A § 2 district that is reasonably compact and regular, taking into account traditional districting principles such as maintaining communities of interest and traditional boundaries, may pass strict scrutiny without having to defeat rival compact districts designed by plaintiffs’ experts in endless “beauty contests.”
116 S. Ct. at 1960.
The Court found that the district lines were not justified as an attempt to remedy the effects of past discrimination, since there was no evidence of present discrimination other than racially polarized voting. Since racially polarized voting only served to make a case for a violation of § 2, and the plan was not narrowly tailored to remedy a § 2 violation, the bizarre shapes were not justified.
The Court found that creation of District 18, the reconfigured African American district in the Houston area, was not justified as an attempt to avoid retrogression under § 5, since it actually increased the African American voting population from 40.8 percent to 50.9 percent.
Vera v. Bush, 933 F. Supp. 1341 (S.D. Tex. Aug. 6, 1996)
On remand, after being notified by the Governor that he did not intend to call a special session to redraw the invalid districts in time for the 1996 election, the district court redrew both the offending districts and the districts adjoining them to be more compact. It ordered the voters in the 13 affected congressional districts to participate in a special open primary election to be held the same day as the general election, with a runoff election to be held
87 December 10, 1996, if no candidate in a district received a majority of the votes cast in the primary. The Court denominated its plan an interim one, to govern the 1996 election only, and directed the Texas Legislature to draft a plan to govern future elections by June 30, 1997.
1996 Congressional District 30 Congressional District 29 Congressional District 18
Vera v. Bush, 980 F. Supp. 251; 980 F. Supp. 254 (S.D. Tex. 1997)
When the Legislature failed to enact a permanent plan by the June 30, 1997, deadline, the Court ordered the 1996 interim plan to remain in place indefinitely, despite population deviations among the districts. The Court relied on Abrams v. Johnson, 117 S. Ct. 1925 (1997), in finding that “equitable considerations disfavor engaging in yet another redistricting effort to correct minuscule population deviations in this Court’s 1996 interim plan.”
Thomas v. Bush, No. A-95-CV-186-SS (W.D. Tex. ______, 1995) (filed in Southern District as No. H-95-0237, but transferred to Western District on motion to change venue)
This was a Shaw challenge to House and Senate district lines. The parties reached a settlement for the 1996 elections. The Legislature adopted the plans in 1997 and the challenge was dismissed.
Armbrister v. Morales, 943 S.W.2d 202 (Tex. App.-- Austin, 1997)
Senators, who serve staggered four-year terms, sought a declaratory judgment that the Legislature’s enactment of the court-ordered plan used in the previous election was not a new apportionment of the Senate within the meaning of the constitutional provision requiring all senators to run for election following a new apportionment and then draw lots to determine who serves a two-year term and who serves a four-year term. The trial court held that enactment of a court-ordered plan was a new apportionment. The appellate court reversed and rendered a decision for the senators.
88 Utah
There were no cases.
Vermont
In Re Reapportionment Towns of Hartland, 160 Vt. 9, 624 A.2d 323 (1993)
Following the 1992 reapportionment of the Vermont General Assembly, six petitions were filed with the Vermont Supreme Court. Five of the petitions challenged districts created under the House plan; one challenge involved a Senate district. The challenge to the Senate plan and four of the challenges to the House plan were dismissed by the court. The fifth house petition, however, resulted in remand of the House plan for consideration of the nonnumerical criteria and determination of whether one of the towns within the district could be placed in a district with which it shared a greater community of interest without creating constitutional or statutory violations elsewhere in the state.
Among the six petitions, the petitioners raised and the court addressed the following issues, among others: the deviation; geographical compactness and contiguity; adherence to town and county boundaries; the role of the statutory requirement that towns within a district share common interests; political gerrymandering; and incumbency.
In Re Reapportionment of Town of Montgomery, 162 Vt. 617, 647 A.2d 1013 (1994)
On remand, the General Assembly reconsidered the disputed district and determined that the constitutional and statutory criteria would not be better served by an alternate plan. The court deferred to the legislature’s judgment and upheld the House plan.
Virginia
Republican Party of Virginia v. Wilder, 774 F. Supp. 400 (W.D. Va. 1991)
The Republican Party and a number of Republican members of the House of Delegates and voters challenged the 1991 redistricting plan for the House as a partisan gerrymander. The gist of the complaint was that the plan paired 14 Republican incumbents with each other and one Republican with an Independent incumbent. Only two Democrat incumbents were paired under the challenged plan. The three-judge panel of the District Court denied plaintiffs’ motion for a preliminary injunction to halt the 1991 election for the House on the ground that the plaintiffs had not met the Bandemer burden of proof. While plaintiffs showed intentional discrimination against Republicans, plaintiffs failed to show the requisite discriminatory effect. No elections had been held under the plan and the effect on the paired incumbents did
89 not meet Bandemer standards. The panel refused to enjoin the November 1991 elections, and plaintiffs did not pursue the litigation.
Jamerson v. Womack, 244 Va. 506, 423 S.E.2d 180 (Va. 1992)
Residents of two South side Virginia Senate districts sued for declaratory relief that the General Assembly’s Senate redistricting plan violated the compactness and contiguity requirements of article II, section 6 of the Constitution of Virginia. The challenged 18th District stretched from Portsmouth in the east approximately 165 miles to Halifax County in the west and combined urban tidewater and rural agricultural areas. The Court upheld the plan and a chancellor’s finding that the plan met constitutional compactness requirements. He had found that the General Assembly had considered compactness and had honored competing interests (equal population, the Voting Rights Act requirements) in drawing the Senate districts. The Court gave deference to the chancellor’s findings and the Legislature’s responsibility for redistricting. With regard to the constitutional compactness requirement, the Court stated that the requirement refers to territory and not to communities of interest and rejected the plaintiffs’ contention that compactness covered both the form and content of the district.
Moon v. Meadows, 952 F. Supp. 1141 (E.D. Va. 1997); aff’d sub nom. Meadows v. Moon, 117 S. CT. 2501 (1997) (mem.) and Harris v. Moon, 117 S. Ct. 2501 (1997) (mem.)
Residents of Virginia’s Third Congressional District filed a Shaw/Bush challenge in 1995 to the Commonwealth’s first majority-minority congressional district. In February 1997, the three-judge panel of the District Court ruled that the Third District was an unconstitutional racial gerrymander and violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Court enjoined future elections from the Third District until the General Assembly enacted a new and lawful plan. The panel found first that race was the predominant motive in the drawing of the Third District. Second, the panel discounted the Commonwealth’s argument that there was a compelling state interest at stake in avoiding liability under Section 2 of the federal Voting Rights Act. The panel found that the threat of a Section 2 violation was not “very credible.” Specifically, the panel held that the defendants did not prove the third Gingles element and that plaintiffs’ expert testimony prevailed to show “that white bloc voting does not prevent blacks from electing their candidates of choice.” The panel noted that the defendant’s showing on the first Gingles prong, that there is a minority group residing “in a geographically compact area” was “doubtful at best.” The Supreme Court affirmed without opinion.
The 1998 General Assembly redrew the Third District and four surrounding congressional districts and Governor Gilmore signed the legislation as Chapter 1 of the 1998 Acts of Assembly on February 11, 1998. On February 13, the Commonwealth delivered submission documentation for review by the Department of Justice under Section 5 of the Voting Rights Act. The revised plan reunites eight split jurisdictions, splits one locality, improves the
90 compactness of the affected districts, and maintains the core areas of the existing districts. The 11-member congressional delegation endorsed Chapter 1. The new plan reduces the minority portion of the Third District voting age population from 61.60 to 50.47 percent.
The question remains unanswered whether a court challenge to Chapter 1 will be filed.
Washington
There were no cases.
West Virginia
Damron v. Hechler, No. ______(S.D. W.Va., complaint filed Mar. 13, 1991) (challenge to congressional plan)
Stone v. Hechler, 782 F. Supp. 1116 (W.D. W.Va. 1992)
Plaintiff registered voters challenged the congressional redistricting plan enacted by the Legislature on the grounds that it neither provided for districts of equal population nor adequately justified the population deviation among the districts. The difference in population between the largest and the smallest of the three districts (the “overall range”) was 556 persons, or .09 percent. Seventeen other plans considered by the Legislature had a lower overall range than the plan enacted. The State justified these population deviations on the grounds that they were necessary to preserve the cores of prior districts and to make the districts compact.
A three-judge federal district court held that, although the plan deviated from the standard of population equality established by the U.S. Supreme Court in Karcher v. Daggett, 462 U.S. 725 (1983), the State had shown that the deviations were necessary to achieve legitimate state goals. It found that the enacted plan preserved the cores of prior districts better than any of the plans with lower population variances. It found that the enacted plan was more compact than plaintiffs’ preferred plan using two of the three measures of compactness considered by the Legislature and by the parties, and that it was compact within the meaning of the state constitutional requirement that districts be “formed of contiguous counties, and be compact.” The complaint was dismissed.
Anthony v. Hechler, No. 92-0021-W(S) (N.D. W.Va., complaint filed Jan. 21, 1992) (challenge to House districts in Ohio County for alleged unequal populations, excessive division of county, and partisan gerrymander)
Holloway v. Hechler, 817 F. Supp. 617 (S.D. W.Va. 1992), aff’d 507 U.S. 956 (1993) (mem.)
91 Plaintiff registered voters challenged the redistricting plans for the state Senate and House of Delegates under the First and Fourteenth Amendments to the U.S. Constitution. They alleged that the House plan violated the Equal Protection Clause of the Fourteenth Amendment because it had an overall range of population deviations between the largest and the smallest districts of 9.97 percent. They alleged that two of the multimember districts in the House plan denied them equal protection because they included a proviso that no more than three- fourths of the delegates elected from one district and four-fifths of the delegates elected from the other district be residents of the same county. And they alleged that the Democratic leadership in the Legislature had used a combination of 23 multimember districts and 33 single-member districts to create a partisan gerrymander that unfairly diluted the voting strength of Republican voters. The basis for the challenge to the Senate plan is not set forth in the reported decision, it having been dismissed by an earlier unpublished order of the Court.
A three-judge federal district court held that the House plan’s overall range of 9.97 percent was not prima facie a denial of equal protection and that multimember districts are not unconstitutional per se. The Court held that the so-called “proviso” districts were merely a kind of residency requirement and did not violate the Equal Protection Clause. Since voters in all counties in the district had an equal right to vote for all the candidates from any county, their votes were not unequal.
With regard to the partisan gerrymandering claim, the Court observed that the districts were “compact in shape and . . . present no grotesquery in their configurations.” The Court found that the districts had been drawn to enhance the reelection prospects of incumbents and to minimize contests between incumbents, but held that “recognition of incumbency concerns is not unconstitutional per se.” The Court found that plaintiffs had failed to prove either “intentional discrimination against an identifiable political group . . . [or] an actual discriminatory effect on that group.”
Martin v. Jones, No. 20868 (W.Va. 1992)
Stone v. Burdette
Wisconsin
Prosser v. State Board of Elections, 793 F. Supp. 859 (W.D. Wis. 1992).
Following the failure of the legislature and the governor to agree upon a legislative redistricting plan based on the 1990 census, a three-judge federal panel issued an order promulgating state senate and assembly districts to govern the 1992 legislative elections. The boundaries established by the court have not been superceded by the legislature and have governed all elections held since June 2, 1992.
92 Wyoming
Gorin v. Karpan, 775 F. Supp. 1430 (D. Wyo. 1991)
The Wyoming Constitution, Art. III, § 3, mandates that each county shall constitute a senatorial and representative district and that each county shall have at least one senator and one representative . In the 1960s, this provision was held unconstitutional as applied to reapportionment in the state Senate. Schaefer v. Thomson, 240 F. Supp. 247 (D. Wyo. 1964), supplemental, 251 F. Supp. (D. Wyo. 1956), aff’d per curiam sub. nom. Harrison v. Schaefer, 383 U.S. 269 (1966). The Legislature continued to provide each county with at least one representative regardless of how small the county population was. Thus, the less populous counties had more than their fair share of voting power in the Legislature.
In 1991, the Wyoming Legislature enacted a plan following Art. III, § 3, allocating one representative to each county regardless of county population. The remaining house seats were then allocated among the 15 more populous counties. The ideal ratio of citizens is calculated by dividing the state population by the number of house seats available. Under this calculation, the range of deviation from the ideal for house seats was from 65 percent overrepresentation to 18 percent under representation. Senate reapportionment demonstrated lower but still significant deviations.
Under the federal case law, the general rule is that of “one person, one vote,” with each vote having equal weight. Deviations from this ideal may not exceed 10 percent without sufficient justification by the State. With respect to both the House and the Senate, the Court held that the plan violated the equal protection clause of the Fourteenth Amendment of the U.S. Constitution and the Legislature must disregard the state constitutional provision requiring each county be represented by at least one representative because of its inconsistency with the one-person, one-vote principle.
With a house maximum population deviation of approximately 83 percent and a senate maximum population deviation of approximately 58 percent, the Court found that these population inequalities were substantially in excess of the 10 percent threshold. The burden then shifted to the State to demonstrate that the Legislature fulfilled its good faith obligation to achieve substantial voter equality.
The Court found the reapportionment plan was facially invalid because the deviations created population inequalities that exceeded the limits of equal protection. Further, the deviations were avoidable, because the Legislature had prepared several plans that were better in terms of voter equality. The Court found:
1. The plan’s intrusion on the one-person, one-vote principle was significant; 70 percent of the State’s citizens were under represented in the House, 68 percent in the Senate.
93 2. The Legislature’s justifications for adopting the plan were unpersuasive. The policy of county representation was carried to the extreme and was unjustified on the basis of Wyoming’s uniqueness. The fact that the 1991 plan was statistically indistinguishable from the State’s previous court-approved, county-based reapportionment plans was irrelevant under the case law.
3. While the plan furthered the policy of preserving the integrity of county boundaries, the Legislature allowed this policy to intrude impermissibly on the “one-person, one-vote” principle.
4. Other plans were offered that would have furthered state goals and simultaneously reduced inequality in voting power.
The Court’s clear guidance was that the Legislature must make substantial population equality its overriding objective, and the State would need to have a rational policy supported by legitimate considerations to exceed the de minimus 10 percent deviation.
Gorin v. Karpan, 788 F. Supp. 1199 (D. Wyo. 1992)
In response to the District Court’s 1991 decision, the Legislature enacted a new plan in 1992. The Court upheld that plan.
The 1992 Act was a “nested” plan wherein each Senate district was formed by combining two adjacent House districts. The range of relative population deviation for each house of the Legislature was less than 10 percent, and therefore fell below the de minimus threshold. Thus, the Court concluded the act met the overriding objective of substantial equality of population among various legislative districts.
94