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How to Draw Redistricting Plans That Will Stand up in Court

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How to Draw Redistricting Plans That Will Stand up in Court How to Draw Redistricting Plans That Will Stand Up in Court Peter S. Wattson National Conference of State Legislatures Online Redistricting Seminar DENVER, COLORADO JANUARY 7, 2021 Peter S. Wattson is beginning his sixth decade of redistricting. He served as Senate Counsel to the Minnesota Senate from 1971 to 2011 and as General Counsel to Governor Mark Dayton from January to June 2011. He assisted with drawing, attacking, and defending redistricting plans throughout that time. He served as Staff Chair of the National Conference of State Legislatures’ Reapportionment Task Force in 1989, its Redistricting Task Force in 1999, and its Committee on Redistricting and Elections in 2009. Since retiring in 2011, he has participated in redistricting lawsuits in Arkansas, Kentucky, and Florida, and lectured regularly at NCSL seminars on redistricting. Contents I. Introduction. 1 A. Reapportionment and Redistricting . 1 B. Why Redistrict? . 1 1. Reapportionment of Congressional Seats. 1 2. Population Shifts within a State . 2 C. The Facts of Life . 3 1. Equal Population. 3 2. Gerrymandering . 4 a. Packing. 4 b. Cracking. 4 c. Pairing . 4 d. Kidnapping . 5 e. Creating a Gerrymander . 6 D. The Need for Limits . 7 1. Who Draws the Plans . 7 2. Data that May be Used . 7 3. Review by Others . 7 4. Districts that Result . 8 II. Draw Districts of Equal Population . 8 A. Use Official Census Bureau Population Counts. 8 1. Alternative Population Counts . 8 2. Use of Sampling to Eliminate Undercount . 9 3. Exclusion of Undocumented Aliens. 10 4. Inclusion of Overseas Military Personnel. 10 B. Census Geography . 10 1. Public Law 94-171. 10 2. Statistical . 11 a. Block. 11 b. Block Group . 11 c. Census Tract . 11 d. County . 11 3. Political. 11 a. Precinct, Ward, Election District = VTD . 12 b. City, Town, Village, Unorganized Territory, Other = MCD . 12 c. Place . 12 d. County . 12 C. Measuring Population Equality. 12 D. Congressional Plans . 13 1. “As Nearly Equal in Population As Practicable”. 13 i 2. Unless Necessary to Achieve “Some Legitimate State Objective” . 14 E. Legislative Plans . 15 1. An Overall Range of Less than Ten Percent . 15 2. Unless Necessary to Achieve Some “Rational State Policy” . 16 III. Don’t Discriminate Against Racial or Language Minorities . 18 A. Section 2 of the Voting Rights Act. 18 1. A National Standard. 18 2. Data on Race and Language Minorities . 19 3. No Discriminatory Effect . 20 4. The Three Gingles Preconditions . 21 5. “The Totality of the Circumstances” . 22 6. A Realistic Opportunity to Elect . 22 a. “A Searching Practical Evalution . 23 (1) More Than a Simple Majority. 23 (2) Too Many May be Packing . 24 (3) Less Than a Simple Majority. 24 b. Damned if You Don’t, Damned if You Do . 24 c. Ten Years of Election History . 24 (1) Most Probative – Endogenous Elections. 25 (2) Less Probative – Exogenous Elections . 25 (3) Most Probative – Biracial Contests . 25 (4) Three Analytical Techniques . 26 B. Section 5 of the Voting Rights Act. 26 1. Redistricting Plans No Longer Need to be Precleared . 26 2. You May Retrogress . 27 3. Do Not Intend to Discriminate. 28 4. You Need Not Maximize the Number of Minority Districts . 29 C. Equal Protection Clause of the Fourteenth Amendment . 30 1. You May Consider Race in Drawing Districts. 30 2. Avoid Drawing a Racial Gerrymander. 31 a. Beware of Bizarre Shapes . 31 b. Draw Districts that are Reasonably Compact . 32 c. Beware of Making Race Your Predominant Motive . 36 d. Beware of Using Race as a Proxy for Political Affiliation. 37 e. Follow Traditional Districting Principles . 38 3. Strict Scrutiny is Almost Always Fatal . 39 a. A Compelling Governmental Interest. 39 b. Narrowly Tailored to Achieve that Interest . 39 (1) Remedying Past Discrimination . 39 (2) Avoiding Retrogression Under § 5 . 40 (3) Avoiding a Violation of § 2. 41 IV. Don’t Go Overboard with Partisan Gerrymandering. 43 ii A. Partisan Gerrymandering is No Longer Justiciable in Federal Court . 43 1. It Was Justiciable - Davis v. Bandemer (1986) . 43 2. Three Decades Attempting to Measure It. 45 a. Failure - 1988 to 2006 . 45 b. Success - 2016 to 2019. 46 (1) Fourteenth Amendment Equal Protection . 46 (a) Discriminatory Intent . 46 (b) Discriminatory Effect . 47 (c) Justification . 49 (2) First Amendment . 50 (a) Intent to Burden . 50 (b) Actual Burden . 50 (c) Causation . 51 (3) Article I Right of the People to Elect Their Representatives . 51 3. It is No Longer Justiciable - Rucho v. Common Cause (2019) . 52 B. Beware of State Prohibitions on Partisan Gerrymandering. 52 1. Florida . 53.
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