EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT
EVERYTHING YOU ALWAYS WANTED TO KNOWABOUT REDISTRICTINGBUT WERE AFRAID TO ASKAMERICAN CIVIL LIBERTIES UNION FOUNDATIONVOTING RIGHTS PROJECT230 Peachtree Street, NWAtlanta, Georgia 30303T/ 404.523.2721F/ 404.653.0331www.aclu.org/voting-rights2010
TABLE OF CONTENTSINTRODUCTION. 6I.REDISTRICTING AND REAPPORTIONMENT. 7Q: What is redistricting?.7Q: Is redistricting different from reapportionment?.7II.ONE PERSON, ONE VOTE. 8Q: Why bother to redraw district lines?.8Q: Who draws district lines?.8Q: As far as state and local offices are concerned, how does one person,one vote work?.8Q: How can a jurisdiction justify a total deviation among districts ofgreater than 10%?.9Q: Do the same deviation rules apply to congressional redistricting?.9Q: What other factors are considered when drawing districts?.9Q: How often must a state redistrict?.10Q: How does the Census Bureau count people? .10III.MINORITY VOTE DILUTION. 11Q: What is minority vote dilution?.11Q: What are some of the techniques used in redistricting plans to diluteminority voting strength?.11Q: Is vote dilution prohibited by the Constitution?.11Q: Does the Voting Rights Act prohibit vote dilutionin redistricting?.11Q: Who is protected by the Voting Rights Act?.12IV.SECTION 2 OF THE VOTING RIGHTS ACT. 13Q: What does Section 2 provide?.13Q: Why did Congress dispense with the requirement of provingracial purpose under Section 2?.13
Q: How do you prove a violation under the results standard of Section 2?.13Q: How compact must a district be to satisfy Section 2 and thefirst Gingles factor?.14Q: What is the test for determining if a minority is a “majority” in a district?.15Q: If a minority population is too small to be a majority, but large enoughto elect candidates of choice with help from voters who are membersof the majority, does Section 2 require the drawing of such“crossover” or “coalition” districts?.15Q: How does a court determine whether a minority is politically cohesivewithin the meaning of the second Gingles factor?.15Q: How pervasive must white bloc voting be to satisfy thethird Gingles factor?.15Q: Can two minority groups, such as African-Americans and Hispanics,ever be combined for purposes of Section 2?.15Q: Since we have a secret ballot, how is it possible to showracial bloc voting?.15Q: Is it necessary to prove that voters are voting because of race?.16Q: Which elections are the most important in proving racial bloc votingand in determining whether it is legally significant?.16Q: What is “proportionality” and does it play a role in the Gingles analysis?.16Q: If a plan drawn to remedy a Section 2 violation were to exceedproportionality, would it for that reason be unacceptable? .17Q: Does the Gingles analysis also apply to challenging existing singlemember district plans?.17V.SECTION 5 OF THE VOTING RIGHTS ACT. 18Q: How does Section 5 work?.18Q: What states are covered by Section 5?.18Q: What voting changes are covered by Section 5?.18Q: Is Section 5 permanent?.18Q: Can jurisdictions “bail out” from Section 5 coverage? .18Q: Do we still need Section 5? .19Q: How is preclearance obtained?.19Q: What if a jurisdiction refuses to submit a voting changefor preclearance?.19
Q: What standards do the District of Columbia Court and theAttorney General use in determining whether a proposed changehas a discriminatory effect?.20Q: Can an intervening court decision alter the benchmark fordetermining retrogression under Section 5?.20Q: What is the standard for determining whether a proposed changehas a discriminatory purpose under Section 5?.20Q: Can minorities participate in the Section 5 preclearance process?.21Q: What is the procedure for making a Section 5 comment?.21Q: If a voting change has been precleared under Section 5 can it still bechallenged under Section 2?.21VI.THE SHAW/MILLER CASES of the 1990’s. 22Q: What was the significance of the Shaw/Miller Cases?.22Q: Is it still permissible to draw majority-minority districts?.22Q: Are majority-minority districts a suspect form of gerrymandering?.23Q: Do majority-minority districts segregate voters?.23Q: Is race simply a stereotype that should be avoided in redistricting?.23Q: Do majority-minority districts stigmatize or harm voters?.24Q: Have majority-minority districts increased political opportunitiesfor minorities?.24Q: Are majority-minority districts still needed?.24Q: Is there any way to avoid a Shaw/Miller challenge?.25Q: Are minorities better off influencing the election of white candidates,rather than electing minority candidates whom they might prefer?.26Q: Shouldn’t redistricting be color blind?.26VII.PARTISAN GERRYMANDERING. 27Q: Can the party in control enact a plan to limit the political opportunities ofanother party?.27Q: Have the courts invalidated many redistricting plans on the basisthat they were partisan gerrymanders?.27Q: Are there any judicially manageable standards to adjudicate partisangerrymandering claims?.27
VIII.THE 2010 CENSUS. 28Q: Why do we need a fair and accurate count? .28Q: What has The Census Bureau done to ensure a fair and accurate count? .28Q: What is Public Law 94-171 data?.28Q: What is The American Community Survey?.29Q: Can a jurisdiction redistrict using data other than the census data?.29Q: What can we do to ensure fairness in redistricting?.29ENDNOTES. 30APPENDIX AOrganizations that work with redistricting and other voting rights issues.35APPENDIX BDistrict Maps from Bush v. Vera.40
INTRODUCTIONThis is the second edition of our pamphlet which attempts to answer some of the questionsmost frequently asked about redistricting. The law in the voting area is always evolving anddifferent courts often interpret the same laws differently. If you have a specific questionabout redistricting or a problem not adequately covered in this pamphlet, you should seeklegal advice.Redistricting is not something best left to the politicians and the experts. Every voter hasa vital stake in redistricting because it determines the composition of districts that electpublic officials at every level of government. Given the advances in modern map drawing technology, it is now possible for everyone to participate directly in the redistrictingprocess. But to be an effective player, you need to know the rules of the game which arediscussed in this pamphlet.For more information or assistance in redistricting, contact the ACLU’s Voting RightsProject or the other organizations listed in the appendix at the end of this pamphlet.REDISTRICTING MANUAL6ACLU VOTING RIGHTS PROJECT
I. REDISTRICTING AND REAPPORTIONMENTQ: What is redistricting?Redistricting refers to the process of redrawing the lines of districts from which public officials are elected.1 Redistricting typically takes place after each census and affects all jurisdictions that use districts, whether for members of Congress, state legislatures, countycommissions, city councils, school boards, etc.Q: Is redistricting different from reapportionment?Technically, yes, but as a practical matter, no. Reapportionment in its most narrow, technical sense refers to the allocation of representatives to previously established voting areas,as when Congress allocates, or “apportions,” seats in the U.S. House of Representativesto the several states following the decennial census.2 But the terms reapportionment andredistricting are generally used interchangeably and refer to the entire process, at whatever level it takes place, of redrawing district lines after the census.3REDISTRICTING MANUAL7ACLU VOTING RIGHTS PROJECT
II. ONE PERSON, ONE VOTEQ: Why bother to redraw district lines?The U.S. Constitution and the federal courts require it. It’s also the fair and equitable thingto do. Historically many states did not redistrict to reflect shifts and growth in their populations. As a consequence, the voting power of residents of heavily populated areas wasoften significantly diluted. In Georgia statewide contests, for example, a vote in 45 sparselypopulated rural counties had 45 times the weight of a vote in urban Fulton County.4 Thevoters from the 103 smallest counties in the state, which had only 22% of the population, also elected a majority of the members of the house.5 In a series of cases in the1960s, one of which coined the phrase “one person, one vote,” the Supreme Court held thatthe Fourteenth Amendment guaranteed “equality” of voting power and that the electoralsystems in states which failed to allocate voting power on the basis of population wereunconstitutional.6Q: Who draws district lines?In most states the state legislature is responsible for drawing district lines. However, 13states (Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Idaho, Missouri, Montana,New Jersey, Ohio, Pennsylvania, Washington) use special redistricting commissions todraw state legislative districts. Six of these states (Arizona, Hawaii, Idaho, Montana, NewJersey, Washington) also use a board or commission to draw congressional plans, whileseven states (Maine, Vermont, Connecticut, Illinois, Mississippi, Oklahoma, Texas) use anadvisory or remedial commission in the event the legislature is unable to pass new plans.Iowa is different from all others in that district plans are developed by nonpartisan legislative staff with limited criteria for developing plans.7 In some instances commissions arenot entirely independent since they may be composed of elected and/or appointed officials.California, however, created the first fully independent redistricting commission with passage of Proposition 11 in 2008.8Q: As far as state and local offices are concerned, how does one person, onevote work?For state and local offices one person, one vote requires the jurisdiction to make “an honest and good faith effort” to construct districts with as near to equal population as is practicable.9 Population equality is determined by calculating a district’s deviation from idealdistrict size. Ideal district size is determined by dividing the total population by the numberof seats involved. Deviation is determined by calculating the extent to which an actual district is larger (has a “ ” deviation) or smaller (has a “-” deviation) than the ideal districtREDISTRICTING MANUAL8ACLU VOTING RIGHTS PROJECT
size. Plans with a total population deviation (the sum of the largest plus and minus deviations) under 10% are presumptively regarded as complying with one person, one vote.10Plans with deviations between 10% and 16.4% are acceptable only if they can be justified“based on legitimate considerations incident to the effectuation of a rational state policy.”11Plans with deviations greater than 16.4% are regarded as unconstitutional and are probably never justifiable.12Q: How can a jurisdiction justify a total deviation among districts of greaterthan 10%?A state can justify a deviation greater than 10% based on a rational state policy, such asdrawing districts that are compact and contiguous (all parts connected and touching),keeping political subdivisions intact, protecting incumbents, preserving the core of existingdistricts, and complying with the Voting Rights Act.13 Given the ease with which districts ofequal population can be drawn using modern redistricting technology, and the fact that aplan with an excessive deviation is an invitation to a lawsuit, a jurisdiction has every incentive to draw a plan with a deviation of less than 10%.Q: Do the same deviation rules apply to congressional redistricting?No. The duty to reapportion Congress is imposed by Article I, Section 2 of the U.S. Constitutionrather than the Fourteenth Amendment.14 The courts have interpreted Article I as imposinga much stricter population equality standard in congressional redistricting. Congressionaldistricts must be “as mathematically equal as reasonably possible.”15 Deviations from idealdistrict size can in theory be justified by a consistently applied state policy. However, in acase from New Jersey, the Supreme Court invalidated a congressional plan that containeda total deviation of only 0.6984% on the grounds that it was possible to draw a plan with asmaller deviation and the state’s asserted policy had not been consistently applied.16Given modern technology and the large size of congressional districts, it is generally possible to draw plans that accommodate a state’s policies with virtually no deviations at all. Anumber of states drew plans after the 1990 and 2000 censuses with a deviation of only oneperson from ideal district size.Q: What other factors are considered when drawing districts?Aside from population equality, jurisdictions are required to comply with the provisions ofthe Voting Rights Act and the Constitution prohibiting discrimination. Jurisdictions alsoapply “traditional redistricting principles” which include: compactness (related to districtshape), contiguity (all parts of a district touching or connected), preservation of countyand municipal lines, maintaining communities of interest (specific groups with sharedREDISTRICTING MANUAL9ACLU VOTING RIGHTS PROJECT
interests/identity), maintaining cores of existing districts, and incumbency protection orcompetitiveness. States may add to or prioritize the traditional redistricting principles.17Q: How often must a state redistrict?As a matter of federal law, redistricting is required only once a decade following releaseof the census, and only then if districts are malapportioned.18 States are free to redistrictmore often if they wish. As the Supreme Court has held: “With respect to a mid-decaderedistricting to change districts drawn earlier in conformance with a decennial census,the Constitution and Congress state no explicit prohibition.”19 Mid-decade redistricting hasoften been driven by partisanship or to protect a shift in political power, but in generalredistricting is time consuming, disruptive, and incumbents are disinclined to change thedistricts from which they were elected. Indeed, some states have enacted laws prohibitingredistricting more frequently than once every ten years.20Q: How does the Census Bureau count people?The Census Bureau counts persons based on a “usual residence” rule, which has beendefined as the place where the person lives and sleeps most of the time. Thus, incarceratedpersons, members of the military, students, and persons in other institutions are countedas members of the population where their institutions are located.21 Many, however, contend that this practice provides an unfair advantage in redistricting to such communities byinflating their populations with individuals likely to return to their actual home areas uponrelease from prison, the military, or other institution.22REDISTRICTING MANUAL10ACLU VOTING RIGHTS PROJECT
III. MINORITY VOTE DILUTIONQ: What is minority vote dilution?Vote dilution, as opposed to vote denial, refers to the use of redistricting plans and othervoting practices that minimize or cancel out the voting strength of racial and other minorities. In the words of the Supreme Court, the essence of a vote dilution claim “is that acertain electoral law, practice, or structure interacts with social and historical conditionsto cause an inequality in the opportunities enjoyed by black and white voters to elect theirpreferred representatives.”23Q: What are some of the techniques used in redistricting plans to diluteminority voting strength?Three techniques frequently used to dilute minority voting strength are “cracking,” “stacking,” and “packing.” “Cracking” refers to fragmenting concentrations of minority population and dispersing them among other districts to ensure that all districts are majoritywhite. “Stacking” refers to combining concentrations of minority population with greater concentrations of white population, again to ensure that districts are majority white.“Packing” refers to concentratin
EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT REDISTRICTING BUT WERE AFRAID TO ASK AMERICAN CIVIL LIBERTIES UNION FOUNDATION VOTING RIGHTS PROJECT 230 Peachtree Street, NW . But to be an effective player, you need to know the rules of the game which are discussed in this pamphlet. For more in
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