EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT REDISTRICTING*
*But Were Afraid To Ask!
AMERICAN CIVIL LIBERTIES UNION VOTING RIGHTS PROJECT APRIL, 2001 TABLE OF CONTENTS
INTRODUCTION ...... 1
I. REDISTRICTING AND REAPPORTIONMENT ...... 2
Q: What is redistricting? ...... 2
Q: Is redistricting different from reapportionment? ...... 2
II. ONE PERSON, ONE VOTE ...... 2
Q: Why bother to redraw district lines? ...... 2
Q: As far as state and local offices are concerned, how does one person, one vote work? . . . . .3
Q: How can a jurisdiction justify a total deviation among districts of greater than 10%? ...... 4
Q: Do the same deviation rules apply to congressional redistricting? ...... 4
Q: How often must a state redistrict? ...... 5
III. MINORITY VOTE DILUTION ...... 6 AMERICAN CIVIL LIBERTIES UNION FND. 2725 HARRIS TOWER Q: What is minority vote 233 PEACHTREE STREET dilution? ...... 6 ATLANTA, GEORGIA 30303 (404) 523-2721 Q: How do some redistricting plans FAX: (404) 653-0331 dilute minority voting strength? . .6
i Q: Is vote dilution prohibited Q: How pervasive must white by the Constitution? ...... 7 bloc voting be to satisfy the third Gingles factor? ...... 12 Q: Does the Voting Rights Act prohibit vote dilution in Q: Can two minority groups, redistricting? ...... 7 such as African-Americans and Hispanics, ever be combined for Q: Who is protected by the purposes of Section 2? ...... 13 Voting Rights Act? ...... 7 Q: Since we have a secret ballot, how is it possible to show racial IV. SECTION 2 OF THE VOTING bloc voting? ...... 13 RIGHTS ACT ...... 8 Q: Is it necessary to prove Q: What does Section 2 provide? . .8 that voters are voting because of race? ...... 14 Q: Why did Congress dispense with the requirement of proving racial Q: Which elections are the most purpose under Section 2? ...... 8 important in proving racial bloc voting and in determining Q: How do you prove a violation of whether it is legally significant? . .14 the results standard of Section 2? . .9 Q: What is “proportionality” Q: How compact must a district and does it play a role in the be to satisfy Section 2 and the Gingles analysis? ...... 15 first Gingles factor? ...... 10 Q: If a plan drawn to remedy Q: What is the test for determining a Section 2 violation would whether a minority is a “majority” necessarily exceed proportionality, in a district? ...... 11 would it for that reason be unacceptable? ...... 15 Q: If a minority is too small to be a majority in a district, can it bring a Q: Does the Gingles analysis Section 2 claim on the ground that also apply to single-member its ability to influence elections has district plans? ...... 16 been diluted? ...... 11
Q: How does a court determine V. SECTION 5 OF THE VOTING whether a minority is politically RIGHTS ACT ...... 16 cohesive within the meaning of the second Gingles factor? ...... 12 Q: How does Section 5 work? . .16
ii iii Q: What states are covered by VI. THE SHAW/MILLER CASES ...... 21 Section 5? ...... 16 Q: What did the Supreme Court Q: What voting changes are hold in Shaw v. Reno? ...... 21 by Section 5? ...... 17 Q: Has the Court limited Shaw Q: Is Section 5 permanent? . . . . .17 type claims to districts that were bizarrely shaped? ...... 21 Q: How is preclearance obtained? ...... 17 Q: Did the Court in the Shaw and Miller cases establish special Q: What if a jurisdiction refuses rules for white voters allowing to submit a voting change for them to challenge majority- preclearance? ...... 18 minority districts? ...... 22
Q: What standard do the District Q: Are the Shaw/Miller cases of Columbia Court and the consistent with the spirit of the Attorney General use in determining Fourteenth Amendment? ...... 22 whether a proposed change has a discriminatory effect? ...... 18 Q: Is it still permissible to draw majority-minority districts? . . . . .23 Q: Can an intervening court decision alter the benchmark for Q: Are majority-minority districts determining retrogression under a form of gerrymandering? . . . . .24 Section 5? ...... 19 Q: Are majority-minority districts Q: What is the standard for a form of affirmative action? . . .24 determining whether a proposed change has a discriminatory Q: Do majority-minority districts purpose under Section 5? ...... 19 segregate voters? ...... 25
Q: Can minorities participate in the Q: Is race simply a stereotype Section 5 preclearance process? . .20 that should be avoided in redistricting? ...... 25 Q: What is the procedure for making a Section 5 comment? . . .20 Q: Do majority-minority districts stigmatize or harm voters? . . . . .26 Q: If a voting change has been precleared under Section 5, can Q: Do majority-minority districts it still be challenged under increase racial tension? ...... 27 Section 2? ...... 20
iv v Q: Have majority-minority VIII. THE 2000 CENSUS ...... 33 districts increased political opportunities for minorities? . . . .27 Q: What is Public Law 94-171 data? ...... 33 Q: Are majority-minority districts still needed? ...... 27 Q: What is the difference between the census enumeration and the Q: Is there any way to avoid a corrected count? ...... 33 Shaw/Miller challenge? ...... 28 Q: Is statistical sampling something Q: Are minorities better off new for the census bureau? . . . . .34 influencing the election of white candidates, rather than Q: What is the basis of the dispute minority candidates whom they concerning use of corrected data? .35 might prefer? ...... 30 Q: Which data – the enumeration Q: Did the creation of majority- or the corrected data – did the minority districts have unintended census bureau decide to release as political consequences by causing PL 94-171 data for redistricting? .36 the Democratic party to lose control of Congress in 1994? ...... 30 Q: Was the enumerated undercount reduced in the 2000 census? . . . .36 Q: Shouldn’t redistricting be color blind? ...... 31 Q: Will the corrected data for the 2000 census be released in the future? ...... 37 VII. PARTISAN GERRYMANDERING . . .32 Q: What impact does the decision Q: Can the party in control enact to release the enumerated data as a plan to limit the political the PL 94-171 have on the opportunities of another party? . .32 redistricting process and on racial minorities in particular? . .37 Q: Have the courts invalidated many redistricting plans on the Q: What impact would future basis that they were partisan release of corrected data have on gerrymanders? ...... 33 the redistricting process? ...... 38
Q: Did the 200 census use multi- racial or multi-ethnic categories? .38
Q: What impact will the new categories likely have on redistricting? . . . .39 vi vii CONCLUSION ...... 39 INTRODUCTION ENDNOTES ...... 40 This pamphlet attempts to answer some APPENDIX A of the questions most frequently asked Organizations that work with about redistricting: thus the question and redistricting and other voting answer format. Several caveats are in rights issues ...... 49 order. The law in the voting area is always evolving and different courts APPENDIX B often interpret the same laws differently. District Maps from Bush v. Vera . .53 If you have a specific question about redistricting or a problem not adequately covered in this pamphlet, you should seek legal advice.
Redistricting is often thought of as being highly technical and something best left to the politicians and the experts. Nothing could be further from the truth. Every voter has a vital stake in redistrict- ing because it determines the composition of districts that elect public officials at every level of government. Given the advances in modern map drawing tech- nology, it is now possible for everyone to participate directly in the redistricting process. But to be an effective player, you need to know the rules of the game.
For more information or assistance in redistricting, contact the ACLU’s Voting Rights Project at the number and address listed on the front of this pamphlet.
viii 1 REDISTRICTING AND equitable thing to do. Historically, many states did not redistrict to reflect shifts REAPPORTIONMENT and growth in their populations. As a consequence, the voting power of resi- Q: What is redistricting? dents of heavily populated areas was often significantly diluted. In Georgia, for Redistricting refers to the process of example, in statewide contests a vote in redrawing the lines of districts from which 45 sparsely populated rural counties had public officials are elected.1 Redistricting 20 times the weight of a vote in urban 4 typically takes place after each census and Fulton County. The voters from the 103 affects all jurisdictions that use districts, smallest counties in the state, which had whether for members of Congress, state only 22% of the population, also elected 5 legislatures, county commissions, city a majority of the members of the house. councils, school boards, etc. In a series of cases in the 1960s, one of which coined the phrase “one person, Q: Is redistricting different from one vote,” the Supreme Court held that the Fourteenth Amendment guaranteed reapportionment? “equality” of voting power and that the electoral systems in states which failed to Technically, yes, but as a practical matter, allocate voting power on the basis of no. Reapportionment in its most narrow, population were unconstitutional.6 technical sense refers to the allocation of representatives to previously established Q: As far as state and local voting areas, as when Congress allocates, offices are concerned, how does or “apportions,” seats in the U.S. House of Representatives to the several states one person, one vote work? following the decennial census.2 But the terms “reapportionment” and “redis- For state and local offices, one person, tricting” are generally used interchange- one vote requires the jurisdiction to make ably and refer to the entire process, at “an honest and good faith effort” to con- whatever level it takes place, of redraw- struct districts which elect representatives ing district lines after the census.3 as nearly of equal population as is practi- cable.7 Population equality is determined by calculating a district’s deviation from ideal district size. Ideal district size is ONE PERSON, ONE VOTE determined by dividing the total popula- tion by the number of seats involved. Q: Why bother to redraw district Deviation is determined by calculating lines? the extent to which an actual district is larger (has a “+” deviation) or smaller The U.S. Constitution and the federal (has a “-” deviation) than the ideal dis- courts require it. It’s also the fair and trict size.
2 3 Plans with a total population deviation Fourteenth Amendment.12 The courts (the sum of the largest plus and minus have interpreted Article I as imposing a deviations) under 10% are regarded as much stricter population equality stan- complying with one person, one vote.8 dard in congressional redistricting. Plans with deviations between 10% and Congressional districts must be “as 16.4% are acceptable only if they can be mathematically equal as reasonably pos- justified “based on legitimate considera- sible.”13 Deviations from ideal district tions incident to the effectuation of a size can in theory be justified by a con- rational state policy.”9 Plans with devia- sistently applied state policy. However, tions greater than 16.4% are regarded in a case from New Jersey, the Supreme as unconstitutional and are probably Court invalidated a congressional plan never justifiable.10 that contained a total deviation of only 0.6984% on the grounds that it was pos- Q: How can a jurisdiction justify a sible to draw a plan with a smaller devi- total deviation among districts of ation and the state’s asserted policy had 14 greater than 10%? not been consistently applied. Given modern technology and the large A state can justify a deviation greater size of congressional districts, it is gen- than 10% based on a rational state poli- erally possible to draw plans that cy, such as drawing districts that are com- accommodate a state’s policies with vir- pact and contiguous (all parts connected tually no deviations at all. A number of and touching), keeping political subdivi- states drew plans after the 1990 census sions intact, protecting incumbents, pre- with a deviation of only one person serving the core of existing districts, and from ideal district size. complying with the Voting Rights Act.11 Given the ease with which districts of Q: How often must a state equal population can be drawn using modern redistricting technology, and the redistrict? fact that a plan with an excessive devia- tion is an invitation to a lawsuit, a juris- As a matter of federal law, redistricting is diction has every incentive to draw a plan required only once a decade, and only with a deviation of less than 10%. then if districts are malapportioned.15 States are free to redistrict more often if Q: Do the same deviation they wish, but there is little incentive for rules apply to congressional them to do so. Redistricting is time con- suming and disruptive. There are general- redistricting? ly no more accurate data available than the preexisting federal census. And No. The duty to reapportion Congress is incumbents are disinclined to change the imposed by Article I, Section 2 of the districts from which they were elected. U.S. Constitution rather than the Indeed, some states have enacted laws
4 5 prohibiting redistricting more frequently tricts.18 All of these techniques may result than once every ten years.16 in a districting plan that violates the Voting Rights Act, as well as the Fourteenth Amendment.19 MINORITY VOTE DILUTION Q: Is vote dilution prohibited by the Q: What is minority vote dilution? Constitution?
Vote dilution, as opposed to vote denial, Yes. A reapportionment plan that dilutes refers to the use of redistricting plans and minority voting strength is unconstitu- other voting practices that minimize or tional if it was conceived or operated as a cancel out the voting strength of racial purposeful device to further racial dis- 20 and other minorities. In the words of the crimination. Race need not be the sole Supreme Court, the essence of a vote or main purpose, but only a motivating 21 dilution claim “is that a certain electoral factor in the decisionmaking process. law, practice, or structure interacts with social and historical conditions to cause Q: Does the Voting Rights an inequality in the opportunities enjoyed Act prohibit vote dilution in by black and white voters to elect their redistricting? preferred representatives.”17 Yes. Two provisions of the Voting Rights Q: What are some of the techniques Act, Section 222 and Section 5,23 prohibit used in redistricting plans to dilute the use of voting practices or procedures, minority voting strength? including redistricting plans, that dilute minority voting strength. Three techniques frequently used to dilute minority voting strength are Q: Who is protected by the Voting “cracking,” “stacking,” and “packing.” Rights Act? “Cracking” refers to fragmenting con- centrations of minority population and When it was first enacted, the Voting dispersing them among other districts to Rights Act prohibited discrimination based ensure that all districts are majority on “race or color.”24 In 1975 Congress white. “Stacking” refers to combining extended the protection of the Act to lan- concentrations of minority population guage minorities, defined as American with greater concentrations of white pop- Indians, Asian-Americans, Alaskan ulation, again to ensure that districts are Natives, and persons of Spanish Heritage.25 majority white. “Packing” refers to con- centrating as many minorities as possible in as few districts as possible to minimize the number of majority-minority dis-
6 7 SECTION 2 OF THE VOTING requirement of proving the subjective motives of a legislative body imposed an RIGHTS ACT “inordinately difficult” burden of proof on minority plaintiffs.27 As Judge John Q: What does Section 2 provide? Minor Wisdom wrote in an early voting case, requiring proof of an unconstitu- Section 2 provides that a voting practice tional legislative purpose was “to burden is unlawful if it “results” in discrimina- the plaintiffs with the necessity of finding tion, i.e., if, based on the totality of cir- the authoritative meaning of an oracle 28 cumstances, it provides minorities with that is Delphic only to the court.” “less opportunity than other members of the electorate to participate in the politi- Q: How do you prove a violation of cal process and to elect representatives of the results standard of Section 2? their choice.”26 Although Section 2 does not require proof of racial purpose, prac- The most important case interpreting tices which were enacted or are being Section 2 is Thornburg v. Gingles,29 in maintained for the purpose of discrimi- which the Supreme Court invalidated nating on the basis of race or language multi-member legislative districts in a minority status would also be unlawful redistricting plan adopted by North under the statute. Carolina after the 1980 census. The Court identified three factors, known as the Q: Why did Congress dispense with “Gingles factors,” that are of primary the requirement of proving racial importance in determining a violation of purpose under Section 2? the statute when the racial makeup of an election district is challenged: (1) whether “the minority group . . . is sufficiently large Congress did not require proof of racial and geographically compact to constitute a purpose for a statutory violation for sev- majority in a single-member district;” (2) eral reasons, the most important of whether “the minority group . . . is politi- which was that, to ask whether public cally cohesive,” i.e., tends to vote as a bloc; officials acted out of bias or intended to and (3) whether “the majority votes suffi- discriminate against a minority group, ciently as a bloc to enable it - in the absence was to ask the “wrong question.” The of special circumstances . . . usually to relevant inquiry, according to Congress, defeat the minority’s preferred candidate.”30 was whether minorities “have equal access to the process of electing their rep- The legislative history further provides resentatives.” The intent requirement that “a variety of factors, depending upon was also “unnecessarily divisive” because the kind of rule, practice, or procedure it required plaintiffs to allege and prove called into question” are also relevant in that local officials, or indeed entire com- determining a violation.31 Typical factors munities, were racists. Finally, the identified in the Senate report include: the
8 9 extent of any history of discrimination in “eyeball” test, i.e., if a district looks rea- the jurisdiction that touched the right of sonably compact and is similar in shape the members of the minority group to par- to other districts drawn by the jurisdic- ticipate in the democratic process; the tion it is deemed compact within the extent to which the jurisdiction uses meaning of Section 2 and the first devices that may enhance the opportunity Gingles factor.37 Some courts have placed for discrimination, such as majority vote more emphasis on how a district would requirements or anti-single shot provisions; function in the political process, rather whether the members of the minority than on how it looks. The functional group bear the effects of discrimination in approach takes into account such things as such areas as education, employment and transportation networks, media markets, health, which hinder their ability to partic- the existence of recognized neighbor- ipate effectively in the political process; hoods, etc., to determine whether it is pos- whether political campaigns have been sible to organize politically and campaign characterized by overt or subtle racial effectively in the district.38 appeals; and, the extent to which members of the minority group have been elected to Q: What is the test for determining public office in the jurisdiction.32 A court’s if a minority is a “majority” in a ultimate duty is to determine whether in district? light of the Gingles factors and the totali- ty of circumstances a challenged practice Most courts have held that a majority dilutes minority voting strength.33 means that the minority is 50% plus 1 of Q: How compact must a district be the voting age population (VAP) in a dis- trict on the theory that only those of vot- to satisfy Section 2 and the first ing age have the potential to elect candi- Gingles factor? dates of their choice within the meaning of Section 2.39 The Supreme Court, however, The Supreme Court has said that a district hasn’t decided whether total population, need not be the winner “in endless ‘beau- VAP, or some other measure, such as citi- ty contests’” to meet the compactness zen VAP, should be used in determining if standard of Section 2.34 Instead, a district a minority is a majority in a district.40 complies with Section 2 if it “is reasonably compact and regular, taking into account Q: If a minority is too small to be a traditional redistricting principles such as majority in a district, can it bring a maintaining communities of interest and Section 2 claim on the ground that traditional boundaries.”35 its ability to influence elections has There are various social science measures been diluted? of compactness, such as the perimeter measure and the dispersion measure,36 The Supreme Court hasn’t decided that but most courts have applied an intuitive, issue. In Gingles the Court left open the
10 11 question of whether a minority group that significant”) is satisfied if the majority was not sufficiently large and compact to votes sufficiently as a bloc to enable it constitute a majority in a district could “usually” to defeat the minority’s pre- bring a vote dilution claim if it could show ferred candidate.45 The fact that some that its ability “to influence elections” had minority candidates may have been elect- been impaired.41 In a subsequent decision ed does not foreclose a Section 2 claim. the Court assumed, but without deciding, Instead, in the words of the Supreme that a minority could satisfy the first Court, where a challenged scheme “gen- Gingles factor if it was “a sufficiently large erally works to dilute the minority vote, minority to elect their candidate of choice it cannot be defended on the ground that with the assistance of cross-over votes it sporadically and serendipitously bene- from the white majority.”42 fits minority voters.”46
Q: How does a court determine Q: Can two minority groups, such as whether a minority is politically African-Americans and Hispanics, cohesive within the meaning of the ever be combined for purposes of second Gingles factor? Section 2?
The Supreme Court held in Gingles that The Supreme Court hasn’t resolved this political cohesion can be shown by evi- issue,47 but most courts have held that dif- dence “that a significant number of ferent minority groups can be combined minority group members usually vote for provided they satisfy the Gingles factors.48 the same candidates.”43 Elsewhere in the opinion the Court said that racial bloc Q: Since we have a secret ballot, voting and political cohesion could be how is it possible to show racial established “where there is ‘a consistent bloc voting? relationship between [the] race of the voter and the way in which the voter In Gingles the Court approved two wide- votes.’”44 Most courts have applied a common sense rule that if a majority of ly used methods of proving racial bloc minority voters vote for the same candi- voting, extreme case (or homogeneous precinct) analysis, and ecological regres- dates a majority of the time the minority 49 is politically cohesive. sion analysis. Homogeneous precinct analysis looks at precincts predominantly Q: How pervasive must white bloc (usually 90% or more) of one race. If, for example, a black candidate gets most of voting be to satisfy the third Gingles the votes in the predominantly black factor? precincts but few votes in the predomi- nantly white precincts, the voting in The third Gingles factor (also referred to those precincts is necessarily along racial as whether white bloc voting is “legally lines. Ecological regression analysis,
12 13 which is generally performed by experts argued that minority voters were often in the field, looks at all the precincts to able to elect candidates of their choice in determine if there is a correlation white-white contests and that therefore between the racial makeup of the there was no dilution of minority voting precincts and how votes are cast. It gen- strength. The courts have generally erates estimates of the percentages of rejected these arguments on the grounds members of each race who voted for that Section 2’s guarantee of equal oppor- minority candidates. tunity is not met when “candidates favored by blacks can win, but only if the Q: Is it necessary to prove that candidates are white.”53 voters are voting because of race? Q: What is “proportionality” and No. The Supreme Court has held that does it play a role in the Gingles “the reasons black and white voters vote analysis? differently have no relevance to the cen- tral inquiry of § 2. . . . [O]nly the corre- The term “proportionality,” as used by lation between race of voter and selection the Supreme Court, “links the number of of certain candidates, not the causes of majority-minority voting districts to the correlation, matters.”50 minority members’ share of the relevant population.”54 Whether a challenged plan Q: Which elections are the most provides proportionality is a factor to be important in proving racial bloc considered by a court in its totality of cir- voting and in determining whether cumstances analysis under Section 2, but it is legally significant? proportionality does not insulate a plan, or provide it a safe harbor, from a vote dilution challenge. According to the Every election in which a voter votes, e.g., Court, “[n]o single statistic provides a presidential preference primary, a courts with a short-cut to determine statewide contest, a local school board whether a [redistricting plan] unlawfully election, tells us something about voter dilutes minority voting strength.”55 behavior and is therefore theoretically rel- evant in a vote dilution challenge. Q: If a plan drawn to remedy a However, elections for the particular office at issue and those which give the voters a Section 2 violation were to exceed racial choice are generally considered the proportionality, would it for that most important in determining a Section 2 reason be unacceptable? violation.51 In Gingles, for example, the only elections analyzed by the Court were No, particularly where the remedial plan black-white legislative contests.52 has less disparity and more closely approximates proportionality than the Defendants in some voting cases have existing plan. As one court put it,
14 15 “[t]here is no reason why the . . . minor- of seven others (California, Florida, ity in this case should continue to bear Michigan, New Hampshire, New York, the burden of under-representation under North Carolina, and South Dakota). the current scheme while the white majority enjoys over-representation.”56 Q: What voting changes are covered by Section 5? Q: Does the Gingles analysis also apply to single-member The courts have interpreted Section 5 district plans? broadly to cover practices that alter the election laws of a covered jurisdiction in Yes. The Court has held that the analysis even a minor way.59 Covered changes in Gingles applies to single-member have run the gamut from redistricting redistricting plans as well as multi-mem- plans,60 to annexations,61 to setting the ber plans and at-large elections.57 date for a special election,62 to moving a polling place.63 SECTION 5 OF THE VOTING Q: Is Section 5 permanent? RIGHTS ACT No. Unlike Section 2, Section 5 was orig- inally enacted as a temporary, five-year Q: How does Section 5 work? measure.64 Section 5 was extended and expanded by amendments in 1970, 1975, 65 Section 5 requires certain “covered” and 1982, and is currently scheduled to 66 states, i.e., those which used discrimina- expire in 2007. tory tests for voting and had low levels of voter participation, to get federal Q: How is preclearance obtained? approval, or preclearance, of their new voting laws or practices before they can Preclearance can only be granted by the be implemented.58 Section 5 was designed United States District Court for the to prohibit states from replacing their District of Columbia in a lawsuit, or by discriminatory tests for voting with other, the U.S. Attorney General in an adminis- equally discriminatory voting practices. trative submission. Local federal courts have the power, and duty, to enjoin the Q: What states are covered by use of unprecleared voting practices, but Section 5? they have no jurisdiction to determine whether a change should be approved.67 That decision is reserved exclusively for Section 5 covers nine states in their the District of Columbia court or the entirety (Alabama, Alaska, Arizona, Attorney General. Section 5 also places Georgia, Louisiana, Mississippi, South the burden of proof on the jurisdiction to Carolina, Texas, and Virginia) and parts show that a proposed voting change does
16 17 not have a discriminatory purpose or Q: Can an intervening court decision effect.68 The statute was thus designed to alter the benchmark for determining shift the advantages of inertia and the retrogression under Section 5? delay associated with litigation from the victims of discrimination to the jurisdic- tions which practiced it. Yes. In the event that the existing practice or plan were held to be unconstitutional, Q: What if a jurisdiction refuses the benchmark for determining retrogres- sion of any proposed legislative plan to submit a voting change for would normally be the last legally enforce- preclearance? able practice or plan used by the jurisdic- tion.75 However, a court decision imple- Congress placed the initial burden of menting a remedial redistricting plan “voluntary” compliance with the statute would itself become the benchmark for on the covered jurisdictions,69 but it also determining retrogression in a subsequent authorized the Attorney General and pri- Section 5 submission rather than the last vate citizens to bring suit in local federal legally enforceable legislative plan.76 court to block the use of unprecleared voting practices.70 It also made it a crime Q: What is the standard for to fail to comply with the statute.71 determining whether a proposed change has a discriminatory Q: What standard do the District purpose under Section 5? of Columbia Court and the Attorney General use in determining As with the effect standard, the Supreme whether a proposed change has a Court has construed the purpose stan- discriminatory effect? dard of Section 5 narrowly to mean a purpose to retrogress. Thus, a voting The Supreme Court has construed the change enacted with the express purpose discriminatory effect standard of Section of abridging minority voting strength 5 narrowly to mean retrogression.72 That would be objectionable only if the juris- is, only those voting changes that make diction intended to make minorities minorities worse off than they were worse off than they were before.77 Such a under the preexisting practice or system restrictive interpretation of the statute is (known as the “benchmark” for deter- wholly at odds with the stated purpose of mining retrogression)73 are objectionable Congress in enacting the Voting Rights under the effect standard. The Court has Act, which was to “banish the blight of even held that if a voting change clearly racial discrimination in voting.”78 violates the results standard of Section 2, it would not be objectionable under Section 5 unless it caused a retrogression in minority voting strength.74
18 19 Q: Can minorities participate in the THE SHAW/MILLER CASES Section 5 preclearance process? Q: What did the Supreme Court hold Yes. The Attorney General’s regulations in Shaw v. Reno? allow, and encourage, minorities to par-
ticipate in the preclearance process and 80 submit information concerning the possi- In Shaw v. Reno, decided in 1993, the ble discriminatory purpose or effect of Court held that white voters who alleged voting changes. In practice, the Attorney that North Carolina’s two majority black General is heavily dependent on informa- congressional districts were so bizarre in tion received from citizens in the commu- shape that they could only be understood nities affected by proposed voting as an attempt to assign or segregate vot- changes in administering the statute. ers on the basis of race, stated a claim under the equal protection clause of the Q: What is the procedure for making Fourteenth Amendment. a Section 5 comment? Q: Has the Court limited Shaw type claims to districts that were Section 5 comment letters can be mailed to Chief, Voting Section, Civil Rights bizarrely shaped? Division, P.O. Box 66128, Department of Justice, Washington, D.C. 20035- No. In Miller v. Johnson,81 the Court held 6128. Comments can also be made by that Georgia’s majority black Eleventh phone by calling 1-800-253-3931 or Congressional District was unconstitu- (202) 307-2767. To learn more about tional, not because of its shape, but the Section 5 process, you can log because race was the “predominant” fac- on the voting section’s website at tor in drawing district lines and the state www.usdoj.gov/crt/voting. “subordinated” its traditional redistrict- ing principles to race without having a Q: If a voting change has been pre- compelling reason for doing so, such as cleared under Section 5 can it still remedying or avoiding a violation of fed- eral law. According to the Court, a be challenged under Section 2? bizarre shape was not required for an equal protection challenge but was sim- Yes. Even if a redistricting plan has been ply one way of proving a predominant precleared under Section 5, it can still be racial motive and subordination of tradi- challenged under Section 2 by a lawsuit tional redistricting principles. in the local federal district court.79
20 21 Q: Did the Court in the Shaw and against racial minorities,87 to one that can Miller cases establish special now be used to challenge majority- rules for white voters allowing minority districts and allow whites to seek to maximize their control of the them to challenge majority-minority redistricting process. That this was done districts? in the name of “equal protection” is one of the great ironies of the Court’s modern Yes. First, the Shaw/Miller cases allow redistricting cases. white voters to challenge majority- minority districts based solely on their Q: Is it still permissible to draw shape. Prior to Shaw the Court had held majority-minority districts? that a regular district shape was not a 82 federal constitutional requirement. Yes. The Court has invalidated majority Second, in voting cases brought by black and Hispanic districts in some blacks the Court has required the plain- states,88 but it has rejected challenges to tiffs to prove that a challenged practice such districts in others.89 States are not was adopted or was being maintained only permitted to draw majority-minor- with a discriminatory purpose to estab- 83 ity districts, but may be required to do lish a constitutional violation. In the so to comply with the Voting Rights Act. Shaw/Miller cases, the plaintiffs did not attempt to prove, or even claim, that the According to the Court, a legislature state’s redistricting plans were enacted “will . . . almost always be aware of for the purpose of discriminating against 84 racial demographics,” but it may not them or other white voters. Third, in allow race to predominate in the redis- civil rights cases brought by blacks the tricting process.90 A state “is free to rec- Court had held that the plaintiffs were ognize communities that have a particu- required to show a personal, concrete 85 lar racial makeup, provided its action is injury. In the Shaw/Miller cases, how- directed toward some common thread of ever, the Court dispensed with any relevant interest.”91 Redistricting may be requirement that the plaintiffs allege or performed “with consciousness of prove that the challenged plans had race.”92 Indeed, it would be “irresponsi- diluted their voting strength or person- 86 ble” for a state to disregard the racial ally injured them in any way. fairness provisions of the Voting Rights Act.93 A state may therefore “create a Q: Are the Shaw/Miller cases majority-minority district without await- consistent with the spirit of the ing judicial findings” if it has a strong Fourteenth Amendment? basis in evidence for avoiding a Voting Rights Act violation.94 Admittedly, it may No. They have transformed the be difficult to steer a median course Fourteenth Amendment from a law between these competing principles artic- designed to prohibit discrimination ulated by the Court, but it is clear that
22 23 the Court has not banned the use of Q: Do majority-minority districts majority-minority districts. segregate voters?
Q: Are majority-minority districts a No. The majority-minority districts in the suspect form of gerrymandering? South created after the 1990 census, far from being segregated, were the most No. Majority black or Hispanic districts racially integrated districts in the country. are no more “gerrymandered” than They contained an average of 45% of majority white districts. One leading non-black voters. No one familiar with expert has said that “[a]ll districting is Jim Crow could ever confuse the highly ‘gerrymandering.’”95 Indeed, districts are integrated redistricting plans of the 1990s always designed to give, or try to give, an with racial segregation under which advantage to somebody, some group, or blacks were not allowed to vote or run some interest, and to that extent can be for office. Moreover, the notion that called “gerrymandered.” Incumbents try majority black districts are “segregated,” to “gerrymander” districts in which they and that the only integrated districts are can get elected, Democrats try to “gerry- those in which whites are the majority, is mander” districts that protect their party, itself a racist concept. A constitutional suburbanites try to “gerrymander” dis- doctrine that can tolerate only what is tricts to include the suburbs, and so on. majority white in redistricting is surely a As the Court noted in Davis v. perversion of the equal protection stan- Bandemer,96 “[a]n intent to discriminate dard of the Fourteenth Amendment. in this sense may be present whenever redistricting occurs.” Q: Is race simply a stereotype that should be avoided in redistricting? Q: Are majority-minority districts a form of affirmative action? Race is not a scientific or genetic fact, but race remains an important social and No. There is a fundamental distinction political fact. Most scientists and social between the race conscious allocation of scientists today recognize that race is a limited employment or contractual oppor- social construct – that is, a way of look- tunities and the far different task of ing at people based on tradition, custom, achieving fair representation for political, prevailing attitudes, and the law. Various ethnic, racial, and other minority groups groups of individuals in this country have in the redistricting process.97 Providing been singled out at one time or another minorities with an effective political voice for discriminatory treatment because of involves equal, not preferential, treatment. their skin color or their ancestry, for example the Irish and the Chinese. But discrimination against blacks, including slavery, Jim Crow, and political disfran- chisement, has been particularly harsh
24 25 and persistent. In the states where major- Q: Do majority-minority districts ity-minority districts were challenged, increase racial tension? race was not just an “assumption” or “stereotype,” as the Supreme Court There is no evidence that they do. The maintained. Race, or more precisely evidence tends to show, if anything, that racial discrimination, was real. the creation of highly integrated majori- ty-minority districts has helped reduce In the congressional case from Georgia, white fears of minority office holding, for example, Miller v. Johnson, racial dis- and as a result may have had a dampen- crimination in every aspect of life in the ing effect on racial bloc voting. state was so apparent that the trial court took judicial notice of it and dispensed Q: Have majority-minority districts with any requirement that it be proved. The lower court also acknowledged that, increased political opportunities on the basis of existing state-wide racial for minorities? bloc voting patterns, the Voting Rights Act required the creation of a majority Yes. In 1964 there were only about 300 black congressional district in the Atlanta black elected officials nationwide. By metropolitan area. 1998 the number had grown to more than 8,858.99 This increase is the direct Q: Do majority-minority districts result of the increase in majority-minori- stigmatize or harm voters? ty districts since passage of the Voting Rights Act in 1965.100 No. There is no empirical evidence that majority-minority districts have in fact Q: Are majority-minority districts stigmatized voters or caused them harm. still needed? The witnesses in the Georgia case testi- fied at trial without contradiction that Yes. Although some black incumbents the challenged plan had not increased drawn into new majority white districts racial tension, caused segregation, as a result of the Shaw cases were imposed a racial stigma, deprived anyone reelected, e.g., Cynthia McKinney and of representation, caused harm, or guar- Sanford Bishop in Georgia, voting in anteed blacks congressional seats. The their elections was still racially polar- district court concluded that “the 1992 ized.101 McKinney herself has credited congressional redistricting plans had no her victory to incumbency and the adverse consequences for . . . white vot- opportunity of running initially in a ers.”98 None of the plaintiffs in the Shaw majority black district.102 Nationwide, type cases argued that they were directly more than 90% of incumbent house harmed by the challenged plans. Their members who sought reelection in 1996 claimed injury was entirely theoretical won. Non-incumbent blacks, by con- and abstract. trast, who ran in majority white con-
26 27 gressional districts in 1996 in Arkansas, who are disgruntled over being put in a Mississippi, and Texas all lost.103 majority-minority district and who will be willing to go to court to challenge the Before the 1996 elections, the only black plan. But there are things a legislative candidate in this century to win a seat in body can do to defeat a Shaw/Miller chal- Congress from a majority white district in lenge if one is brought. They include: the deep South states of Virginia, North drawing districts that are reasonably com- Carolina, South Carolina, Georgia, pact; observing traditional redistricting Florida, Alabama, Mississippi, Louisiana, principles; and establishing a record show- and Texas was Andrew Young. He was ing that the minority community has com- elected in 1972 from the Fifth District in mon interests, needs, and concerns. metropolitan Atlanta, in which blacks were 44% of the population. A pattern of A jurisdiction can also draw majority- minority office holding similar to that in minority districts if it has a reasonable Congress exists for southern state legisla- basis in evidence for avoiding a Section 2 tures. Throughout the 1970s and 1980s, violation. That evidence would consist of only about 1% of majority white districts the factors identified in Gingles and the elected a black. As late as 1988 no blacks legislative history of Section 2: geograph- were elected from majority white districts ic compactness; political cohesion; legally in Alabama, Arkansas, Louisiana, significant white bloc voting; a history of Mississippi, or South Carolina.104 The discrimination; the use of devices that number of blacks elected to state legisla- enhance the opportunity for discrimina- tures increased after the 1990 redistricting, tion, such as majority vote requirements but the increase was the result of the or anti-single shot provisions; whether increase in the number of majority black the minority bears the effects of discrimi- districts.105 Given the persistent patterns of nation in such areas as education, racial bloc voting over time in the South, employment and health, which hinders the destruction of majority-minority dis- its ability to participate effectively in the tricts, whether at the congressional or state political process; whether political cam- and local levels, would inevitably lead to a paigns have been characterized by overt decline in the number of minority office or subtle racial appeals; and the extent to holders. It is premature to claim that the which minorities have been elected to electorate is suddenly color-blind or that public office in the jurisdiction. majority-minority districts are no longer necessary to counter the effects of racial A jurisdiction should make it clear, more- bloc voting. over, that it considered these factors at the time it adopted its redistricting plan. Q: Is there any way to avoid a After-the-fact attempts to establish a Shaw/Miller challenge? basis in evidence for complying with Section 2 might be dismissed as being Probably not. There will always be voters unrelated to the decisionmaking process.
28 29 Q: Are minorities better off majority-minority districts at about a influencing the election of white dozen seats in the house.107 Given the fact candidates, rather than minority that Democrats lost a total of 54 house seats in 1994 and that 24 were in states candidates whom they might where there are no majority-minority dis- prefer? tricts, the party’s loss of control of the house cannot be laid at the doorstep of When it amended Section 2 of the Voting majority-minority congressional districts. Rights Act in 1982, Congress provided Democrats lost control of the U.S. Senate that the right protected by the statute was after the 1994 election, but since senators the equal right of minorities “to elect” are elected statewide, congressional redis- candidates of their choice.106 As Congress tricting could not have been the cause of recognized, a system in which the major- the loss. ity can freely elect candidates of its choice but in which blacks and other minorities The decline in fortunes of Democrats can can only influence the outcome of elec- be traced to the growing defection of tions is not a true democracy. conservative whites that began during the early days of the civil rights movement in Touting minority influence as a substitute the 1950s. Republicans, capitalizing on for equal voting power is also paternalis- white southern opposition to desegrega- tic, for it assumes that minorities are bet- tion, made significant inroads on ter off being represented by officials Democratic control of southern house (mainly white) chosen from white major- seats following the presidential elections ity districts. If influence were such a great involving popular conservative idea, whites would certainly promote the Republican candidates in 1952 creation of as many districts as possible (Eisenhower), 1964 (Goldwater), and in which they were the minority so that 1972 (Nixon). At the time of the election they could maximize their influence over of Ronald Reagan to a second term in elections. But the whites who have chal- 1984, the Republicans gained control of lenged majority-minority districts would 37% of southern house seats. The Solid scoff at such a suggestion. Democratic South ceased to exist long before the 1990s round of congressional Q: Did the creation of majority- line drawing. minority districts have unintended political consequences by causing Q: Shouldn’t redistricting be the Democratic party to lose control color blind? of Congress in 1994? In an ideal world where people didn’t vote on the basis of race, perhaps. In the No. Most social science studies place the real world, states may and should consid- actual cost to Democrats of creating er race in redistricting for a variety of rea-
30 31 sons – to overcome the effects of prior Q: Have the courts invalidated many and continuing discrimination, to comply redistricting plans on the basis that with the Fourteenth Amendment and the they were partisan gerrymanders? Voting Rights Act, or simply to recognize communities that have a particular racial or ethnic makeup to account for their No. As a practical matter, the standard of common, shared interests. The Supreme proof announced by the Court has Court has acknowledged that legislators proved to be almost impossible to meet. are always aware of racial information Only one reported case has invalidated and the relationship between race and an election plan on the basis that it was a partisan gerrymander, a plan involving voting behavior.108 judicial elections in North Carolina.111 It is far more honest to discuss and consid- er race openly than to pretend it is not a THE 2000 CENSUS factor in reapportionment decisionmaking. Q: What is Public Law 94-171 data?
PARTISAN In 1975 Congress enacted Public Law 94- 171 which allowed states to provide the GERRYMANDERING census with physical descriptions of geo- graphic areas, such as voting precincts, Q: Can the party in control enact that they intended to use in drawing dis- a plan to limit the political trict lines.112 The PL 94-171 data make it opportunities of another party? easier for states to comply with one per- son, one vote and minimizes the need to In theory, no. The Supreme Court held split precincts when drawing district for the first time in 1986 that a plan lines. The Census Bureau is required to which discriminated against a political provide states this information, which party could be challenged under the includes data on voting age population Fourteenth Amendment.109 Although the and race at the bloc level, by April 1 of Court rejected the plaintiffs’ claim, it the year following the census. indicated that a violation could be estab- lished by proof of intentional discrimina- Q: What is the difference between tion, an actual discriminatory effect, and the census enumeration and the that the system would “consistently corrected count? degrade” the group’s influence on the political process as a whole.110 The enumeration is the initial head count the census takes using mailed question- naires and followup by enumerators on the ground. Not surprisingly, the head
32 33 count always misses a lot of people. The sampling, the corrected data must be census bureau has documented back to accompanied by a companion set of 1940 that the census not only under- unadjusted data. counted the actual population by millions of people, but disproportionately missed Q: What is the basis of the dispute racial minorities. The bureau estimates concerning use of corrected data? that in 1990 it counted 99.3% of whites but missed 4.4% of African-Americans, One of the concerns is over which data 5% of Hispanics, and 12.2% of Native are more accurate, the enumeration or 113 Americans living on reservations. In an the adjusted count. There are other dis- effort to increase the accuracy and com- putes involving interpretation of what pleteness of the census the bureau has the Constitution and the Census Act developed a technique for adjusting the require. But the overriding dispute has enumeration statistically through “sam- always been one of partisan advantage. pling.” The “corrected count” refers to In 1997 the chairman of the Republican the enumeration adjusted by sampling. National Committee wrote to all state chairman warning that the Democratic Q: Is statistical sampling something administration’s plan to correct the cen- new for the census bureau? sus data “will add nearly four and one- half million Democrats to the nation’s No. The census has used sampling tech- population.”117 Republicans have spon- niques since 1940. For instance, it sends sored legislation barring use of the cor- the “long form” to only a small percent- rected count on the assumption that age of the population to generate esti- those who will be missed in the enumer- mates of socio-economic conditions, ation, but who will be captured by the which are relied upon to distribute feder- corrected count, would likely vote al dollars to state and local government. Democratic and that excluding such Congress authorized sampling as early as individuals from the redistricting data- 1957,114 and in 1964 removed the base would confer an advantage on the requirement that enumerators obtain Republican party. Partisan interests, “every item of information” by personal however, have never been held to trump visit to each household.115 In 1998, the one person, one vote requirement. In Congress authorized the Secretary of addition, any effort by one party to Commerce, who oversees the census, to “consistently degrade” another party’s use sampling to correct the enumeration influence on the political process would “if he considers it feasible.”116 Congress be subject to challenge as an unconstitu- further provided that if the secretary tional political gerrymander.118 decides to correct the census through
34 35 Q: Which data–-the enumeration Q: Will the corrected data for or the corrected data-–did the the 2000 census be released in census bureau decide to release as the future? PL 94-171 data for redistricting? The corrected data for the 1990 census On March 1, 2001 the census bureau was eventually released because of announced that it would release the enu- requests made under the Freedom of meration data, and not the corrected Information Act, and that may happen count. This decision was the result of a again. It is also possible that the census study performed by senior census bureau may decide to release the correct- bureau officials to determine which set ed data, particularly if further study leads of data was more accurate.119 The com- it to conclude with confidence that the mittee announced that it was “unable to corrected data is indeed more accurate conclude, based on the information than the enumeration data. The Secretary available at this time, that the adjusted of Commerce did not rule out releasing Census 2000 data are more accurate for corrected data for other purposes, which redistricting.”120 includes distributing billions of dollars in federal funds. Q: Was the enumerated undercount reduced in the 2000 census? Q: What impact does the decision to release the enumerated data According to the census bureau, improve- as the PL 94-171 have on the ments were made both in reducing the redistricting process and on racial overall undercount and in the differential minorities in particular? among races. The overall undercount was reduced from 1.61% to 1.18%. The The estimated three million persons undercount of whites remained almost missed by the census will affect many identical at 0.7%. The African-American redistricting decisions and may result in undercount was reduced to 2.17% and undetected one person, one vote viola- Hispanic to 2.85%. But the census tions. Using data that significantly and bureau also estimates that the under- disproportionately undercounted minori- count of Native Americans on reserva- ties could violate the result standard of tions, which was 12.22% in 1990, Section 2 and the retrogression standard remained the highest of any group at of Section 5 of the Voting Rights Act. For 121 4.75% in 2000. example, using figures that dispropor- tionately undercounted minorities would lower the benchmark for determining whether a state’s redistricting plan which reduced the number of majority-minority districts was retrogressive and/or resulted
36 37 in the dilution of minority voting Q: What impact will the new cate- strength. However, we will not even gories likely have on redistricting? know of such effects unless the corrected data is released. It will probably vary from area to area. In areas where few people checked a multi- Q: What impact would future racial category, the impact of the new cat- release of corrected data have on egories will be minimal. Where a signifi- the redistricting process? cant number of people checked one or more of the new racial categories, it That is difficult to say, since many state could have an impact on the determina- and local governments may have com- tion whether a given minority is suffi- pleted their redistricting process before ciently large and geographically compact the corrected data is released. But if it is to constitute a majority in one or more promptly released individual states may single member districts. choose to use it. The new multi-racial categories could Additionally, the Department of Justice also have an impact on determining previously stated that it will use any data whether a minority group is politically released by the census is evaluating sub- cohesive, which must be shown to estab- missions under Section 5, and that its lish a violation of Section 2, and on deter- review “will not be restricted by [a mining the benchmark for retrogression state’s] redistricting process.”122 Thus, if under Section 5. both adjusted and unadjusted data are released, the department will presumably In any case, the impact of the new racial look at both in determining the presence categories will have to be evaluated and of any racial purpose or effect. dealt with on a jurisdiction-by-jurisdic- tion basis. And the impact will largely Q: Did the 2000 census use multi- depend on what courts decide is the racial or multi-ethnic categories? appropriate method of allocating the multiple categories into groups in deter- mining the size of a minority. Yes. For the first time the 2000 census used multi-racial or multi-ethnic cate- gories. Respondents to the census ques- tionnaire were able to choose among six CONCLUSION single-race categories, plus 57 varieties of multi-racial groups. Redistricting is everyone’s business. Given the availability of new mapping technolo- gy, the accessibility of census data, and the existence of numerous groups and organizations with expertise in the voting
38 39 area who can lend a hand, no community 12 Article I, Sec. 2 provides that need sit on the sidelines and watch the “Representatives . . . shall be appor- redistricting process from afar. Everyone tioned among the several states . . . can, and should, be a player. according to their respective num- bers.” 13 White v. Weiser, 412 U.S. 783, 790 ENDNOTES (1973); Karcher v. Daggett, 462 U.S. 725, 730 (1983). 14 1 Karcher v. Daggett, 462 U.S. at 729, Johnson v. Miller, 929 F.Supp. 1529, 741. 1534 n.12 (S.D.Ga. 1996). 15 2 Reynolds v. Sims, 377 U.S. at 583-84. See U.S. Constitution, Article I, Section 16 See, e.g., South Dakota Constitution, 2 (“Representatives . . . shall be Article III, Section 5 (prohibiting apportioned among the several redistricting by the legislature except states . . . according to their “by December first of the year in respective numbers”). 3 which apportionment is required”). Kilgarlin v. Martin, 252 F.Supp. 252 17 Thornburg v. Gingles, 478 U.S. 30, 47 F.Supp. 404, 410 n.1 (S.D.Tex. (1986). 1966); Johnson v. Miller, 929 18 For a discussion of these techniques, F.Supp. at 1534 n.12. 4 see Frank R. Parker, “Racial South v. Peters, 339 U.S. 276, 278 Gerrymandering and Legislative (1950) (Douglas, J., dissenting). 5 Reapportionment,” in Minority Toombs v. Fortson, 205 F.Supp. 248, Vote Dilution (C. Davidson ed. 251 (N.D.Ga. 1962). 6 1984). Gray v. Sanders, 372 U.S. 368, 380-81 19 See Major v. Treen, 574 F.Supp. 325 (1963); Reynolds v. Sims, 377 U.S. (E.D.La. 1983); Voinovich v. 533 (1964). 7 Quilter, 507 U.S. 146, 153-54 Reynolds v. Sims, 377 U.S. at 577; (1993); Jeffers v. Clinton, 730 Brown v. Thomson, 462 U.S. 835, F.Supp. 196 (E.D.Ark. 1990). 842 (1983). 20 8 Rogers v. Lodge, 458 U.S. 613 (1982). White v. Regester, 412 U.S. 755, 764 21 Hunter v. Underwood, 471 U.S. 222 (1973); Brown v. Thomson, 462 (1985). U.S. at 842-43. 22 9 42 U.S.C. § 1973. Mahan v. Howell, 410 U.S. 315, 325 23 42 U.S.C. § 1973c. (1973). 24 10 42 U.S.C. § 1973. Connor v. Finch, 413 U.S. 407, 420 25 42 U.S.C. § 1973aa-1a(e). (1977). But see Brown v. Thomson, 26 42 U.S.C. § 1973(b). and Gorin v. Karpan, 775 F.Supp. 27 S.Rep. No. 417, 97th Cong., 2d Sess. 1430 (D.Wyo. 1991). 11 36 (1982). See Thornburg v. Mahan v. Howell, 410 U.S. at 325; Gingles, 478 U.S. at 43-4 & n.8. DeWitt v. Wilson, 856 F.Supp. 1409, 28 Nevett v. Sides, 571 F.2d 209, 238 1415 (1994).
40 41 (5th Cir. 1978). voting power. 29 478 U.S. 30 (1986). 41 478 U.S. at 46 n.12. 30 Id. at 50-1. 42 Voinovich v. Quilter, 507 U.S. 146, 31 S.Rep. No. 417 at 28-9. 158 (1993). 32 Thornburg v. Gingles, 478 U.S. at 43 Thornburg v. Gingles, 478 U.S. at 56. 36-7. 44 Id. at 53 n.21. 33 Johnson v. De Grandy, 512 U.S. 997 45 Id. at 51, 56. (1994). 46 Id. at 76. 34 Bush v. Vera, 517 U.S. 952, 977 47 Growe v. Emison, 507 U.S. 25, 41 (1996); See also Clark v. Calhoun (1993). County, Miss., 21 F.3d 92, 95 (5th 48 See Nixon v. Kent County, 76 F.3d Cir. 1994) (Gingles “does not 1381, 1393 (6th Cir. 1996); Campos require some aesthetic ideal of com- v. City of Baytown, 840 F.2d 1240, pactness”). 1244 (5th Cir. 1988). 35 Bush v. Vera, 517 U.S. at 977. 49 478 U.S. at 52-3. 36 See, e.g., Richard H. Pildes & Richard 50 Id. at 63. G. Niemi, “Expressive Harms, 51 Clark v. Calhoun County, 21 F.3d at ‘Bizarre Districts,’ and Voting 97 (“elections involving the particu- Rights: Evaluating Election-District lar office at issue will be more rele- Appearances After Shaw v. Reno,” vant than elections involving other 92 Mich.L.Rev. 483, 554 & n.200, offices”); RWTAAAC v. Sundquist, 555 & n.203 (1993). 29 F.Supp.2d 448, 457 (W.D.Tenn. 37 See, e.g., Houston v. Lafayette County, 1998) (“[b]ecause of the prevalence 56 F.3d 606, 611 (5th Cir. 1995); of endogenous [legislative] data, the Cuthair v. Montezuma-Cortez, court does not find the exogenous Colorado School Dist., 7 F.Supp. [county] elections to be particularly 1152, 1167 (D.Col. 1998). useful or necessary”). 38 See, e.g., Clark v. Calhoun County, 21 52 478 U.S. at 80-2. F.3d at 95; Sanchez v. State of 53 Smith v. Clinton, 687 F.Supp. 1310, Colorado, 97 F.3d 1303, 1312 (10th 1318 (E.D.Ark. 1988); Clarke v. Cir. 1996). City of Cincinnati, 40 F.3d 807, 812 39 See, e.g., McNeil v. Springfield Park (6th Cir. 1994); RWTAAAC v. District, 851 F.2d 937 (7th Cir. Sundquist, 29 F.Supp.2d at 456. 1988); Magnolia Bar Ass’n, Inc. v. Contra, Lewis v. Alamance County, Lee, 994 F.2d 1143, 1150 (5th Cir. 99 F.3d 600 (4th Cir. 1996); 1993). Solomon v. Liberty County, 221 40 See Johnson v. De Grandy, 512 U.S. at F.2d 1218 (11th Cir. 2000) (en 1008-09. As noted earlier, the relat- banc). ed concept of one person, one vote 54 Johnson v. De Grandy, 512 U.S. at relies upon total population rather 1014 n.11. than VAP in determining equality of 55 Id. at 1020-21.
42 43 56 Stabler v. County of Thurston, 129 69 Perkins v. Matthews, 400 U.S. at 396. F.3d 1015, 1022 (8th Cir. 1997). See 70 42 U.S.C. §§ 1973j(d) and (f). also Harvell v. Blythville School 71 42 U.S.C. § 1973j(a). Despite Dist. # 5, 71 F.3d 1382, 1389 (8th numerous court decisions finding Cir. 1995) (“the white majority has that Section 5 had been violated, no right under Section 2 to ensure no one has ever been charged with that a minority group has absolutely the crime of failing to comply with no opportunity to achieve greater the act. than proportional representation in 72 Beer v. United States, 425 U.S. at 141. any given race”). 73 Holder v. Hall, 512 U.S. 874, 883-84 57 Voinovich v. Quilter, 507 U.S. at 158. (1994) (the baseline for comparison 58 42 U.S.C. § 1973c. The determination in determining retrogression “is the of Section 5 coverage is made by the existing status”). Attorney General and the Director 74 Reno v. Bossier Parish School Bd., 520 of the Census. 42 U.S.C. § U.S. 471, 485 (1997). 1973b(b). 75 Abrams v. Johnson, 521 U.S. 74, 97 59 Allen v. State Board of Elections, 393 (1997). U.S. 544, 566-67 (1969). 76 Texas v. United States, 785 F.Supp. 60 Beer v. United States, 425 U.S. 130 201, 205 (D.D.C. 1992). (1976). 77 Reno v. Bossier Parish School Bd., 120 61 City of Richmond v. United States, S.Ct. 866, 871 (2000). 422 U.S. 358 (1975). 78 South Carolina v. Katzenbach, 383 62 Henderson v. Harris, 804 F.Supp. 288 U.S. 301, 308 (1966). (M.D.Ala. 1992). 79 Thornburg v. Gingles; Major v. Treen. 63 Perkins v. Matthews, 400 U.S. 379, 80 509 U.S. 630 (1993). 387-90 (1971). 81 515 U.S. 900, 919-20 (1995). 64 S.Rep. No. 295, 94th Cong., 2d Sess. 82 Gaffney v. Cummings, 412 U.S. 735, 12 (1975). 752 n.18 (1973) (“compactness or 65 28 C.F.R. § 51 Appendix. attractiveness has never been held to 66 42 U.S.C. § 1973b(a). Jurisdictions constitute an independent federal can escape or “bail out” from constitutional requirement for State Section 5 coverage prior to its expi- legislative districts”). ration, but the standards for doing 83 City of Mobile v. Bolden, 446 U.S. 55 so require complete compliance with (1980). the Act for 10 years, and as a result 84 Shaw v. Reno, 509 U.S. at 641-42. few jurisdictions have bothered to 85 Allen v. Wright, 468 U.S. 737, 754, try. 756 (1984). 67 Allen v. State Board of Elections, 393 86 Shaw v. Reno, 509 U.S. at 641. U.S. at 555-56 n.19. 87 The Slaughter-House Cases, 83 U.S. 68 McCain v. Lybrand, 465 U.S. 236 (16 Wall) 36, 81 (1872) (the (1984). Fourteenth Amendment was
44 45 adopted to remedy “discrimination Grofman, “The Impact of the against the negroes as a class, or on Voting Rights Act on Minority account of their race”). Representation: Black Officeholding 88 I.e., Districts 2 and 11 in Georgia in Southern State Legislatures and (Miller v. Johnson, Abrams v. Congressional Delegations,” in Johnson), District 12 in North Quiet Revolution in the South 335 Carolina (Shaw v. Hunt, 517 U.S. (Chandler Davidson & Bernard 899 (1996)), and Districts 18, 29, Grofman, eds. 1994) (“the increase and 30 in Texas (Bush v. Vera, 517 in the number of blacks elected to U.S. 952 (1996)). office in the South is a product of 89 I.e., in California (DeWitt v. Wilson, the increase in the number of major- 515 U.S. 1170 (1995), affirming, ity-black districts”). 856 F.Supp. 1409 (E.D.Cal. 1994)), 101 David Bositis, “The Persistence of and in Illinois (King v. Illinois Board Racially Polarized Voting in the of Election, 118 S.Ct. 877 (1998), 1996 Elections,” Voting Rights affirming, 979 F.Supp. 582, 619 Review 5 (Southern Regional (N.D.Ill. 1996)). In Lawyer v. Council, Atlanta, GA, Summer Department of Justice, 521 U.S. 567 1997). (1997), the Court rejected a Shaw 102 Cynthia McKinney, “A Product of the challenge to a majority black and Voting Rights Act,” The Washington Hispanic state legislative district in Post, Nov. 26, 1996, p. A15. Florida. 103 Bositis 6 (1997). 90 Miller v. Johnson, 515 U.S. at 916. 104 Lisa Handley & Bernard Grofman, 91 Id. at 920. “The Impact of the Voting Rights 92 Bush v. Vera, 517 U.S. at 958. Act on Minority Representation: 93 Id. at 991 (O’Connor, J., concurring). Black Officeholding in Southern 94 Id. at 994. State Legislatures and Congressional 95 Robert G. Dixon, Jr., Democratic Delegations,” in Quiet Revolution Representation: Reapportionment in at 336-37. Law and Politics 462 (1968). 105 David Bositis, Redistricting and 96 478 U.S. 109, 164 (1986). Representation: The Creation of 97 Davis v. Bandemer, 478 U.S. at 147 Majority-Minority Districts and the (O’Connor, J., concurring). Evolving Party System in the South 98 Johnson v. Miller, 864 F.Supp. 1354, 46 (Joint Center for Political and 1370 (S.D.Ga. 1994). Economic Studies, 1995). 99 Joint Center for Political and 106 42 U.S.C. § 1973. Economic Studies, Number of Black 107 Bernard Grofman & Lisa Handley, Elected Officials in the United “1990s Issues in Voting Rights,” 65 States, by State and Office, January Miss. L. J. 205, 264 (1995). 1998. 108 United Jewish Organizations of 100 See Lisa Handley & Bernard Williamsburg, Inc. v. Carey, 430
46 47 U.S. 144, 176 n.4 (1977) (“[i]t Recommendation, p. 1. The would be naive to suppose that committee stated that “the analysis racial considerations do not enter indicated an overall improvement in into apportionment decisions”). accuracy from adjustment,” but 109 Davis v. Bandemer. 478 U.S. 109 because its analysis revealed (1986). concerns that were “potentially 110 Id., 478 U.S. at 132. indicative of undetected problems..., 111 Republican Party of North Carolina [it was] unable to conclude at this v. Hunt, 841 F.Supp. 722 (E.D.N.C. time that the adjusted data are 1994). superior because further research on 112 13 U.S.C. § 141(c). these concerns could reverse the 113 Kenneth Prewitt, Director, U.S. finding of the adjusted data’s Bureau of the Census, “Accuracy superior accuracy.” Id. at iii. and Coverage Evaluation,” June 121 “Report of the Executive Steering 2000, pp. 4, 6. Committee for Accuracy and 114 Department of Commerce v. United Coverage Evaluation Policy,” Id. at States House of Representatives, 4-5. 525 U.S. 316, 337 (1999). 122 Letter from Joseph D. Rich, Acting 115 78 Stat. 737. Chief, Voting Section, Civil Rights 116 13 U.S.C. § 195. Division, U.S. Dept. of Justice, to 117 Memorandum from Jim Nicholson, Jane Dee Hull, Governor of Chairman, Republican National Arizona, March 24, 2000, p. 2; FR Committee, May 20, 1997 “Re: the Doc. 01-1488, filed 1-17-01. Clinton Census.” 118 See Davis v. Bandemer, 478 U.S. at 132. APPENDIX A 119 The committee’s makeup and its duties were established by federal regulation. 15 C.F.R. 101.1, 101.2 There are more than a dozen national or (effective Nov. 6, 2000), published regional organizations that may be able in 65 Fed. Reg. 59,713 (2000). to help you with redistricting and other 120 Bureau of the Census, U.S. Dept. of voting rights issues. Many of them have Commerce, “Report of the state and local offices as well. Executive Steering Committee for Accuracy and Coverage Evaluation Advancement Project Policy, Recommendation 1100 17th Street NW, Suite 604 Concerning the Methodology to be Washington, DC 20036 Used in Producing the Tabulations (202)728-9557 of Population Reported to States and Localities Pursuant to 13 U.S.C. § 191(c)” (March 1, 2001),
48 49 American Civil Liberties Union Mexican American Legal Defense 125 Broad Street and Educational Fund New York, NY 10004-2400 634 South Spring Street
50 51 National Association for the APPENDIX B Advancement of Colored People 4805 Mt. Hope Drive Baltimore, MD 21215 The following maps come from the Bush
Native American Rights Fund 1506 Broadway Boulder, CO 80302
Puerto Rican Legal Defense and Education Fund 99 Hudson Street, 14th Floor New York, NY 10013 (212)219-3360
Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36014
Southwest Voter Registration Education Project 403 E. Commerce, Suite 220 San Antonio, TX 78205
52 53 The maps on this page come from the dissenting opinion of Justice Stevens:
TEXAS CONGRESSIONAL DISTRICT 6 Majority White and Constitutional
TEXAS CONGRESSIONAL DISTRICT 25 Majority White and Constitutional
54