Definitions
Drawing Maps That Will
Stand Up in Court
P Reapportionment
P Redistricting
Peter S. Wattson
Senate Counsel
Secretary of the Senate (Legislative)
State of Minnesota
Providence, Rhode Island
September 26, 2010
2
Why Redistrict?
Congressional
Reapportionment 2010
P Reapportionment of Congressional Seats
+1
+1
-1
-1
-1
+1
-1
-2
+1
-1 -1
-1 -1
+1
+1
+4
-1
Election Data Services, Inc.
3
Why Redistrict?
+1
2008-09 Trend Extended to 2010
December 23, 2009
The Facts of Life
Equal Population
P Population Shifts within State
P Absolute Numbers are Less Important than
Relative Numbers
P Growth Slower than Average
< Area Will Grow
P Growth Faster than Average
< Area Will Shrink
5
6
The Facts of Life
Gerrymandering
P Packing
P Fracturing
P Creating a Gerrymander
8
The Need for Limits
Limits on Gerrymanders
Who Draws the Plans
P Who draws the plans
P Data that may be used
P Review by others
P Districts that result
P No legislators
P No appointees of a legislator
P No public officials
P No politicians
P Minority party represented
P Equal number from majority & minority
P Neutral tie-breaker
9
10
Limits on Gerrymanders
Limits on Gerrymanders
Review by Others
Data that May be Used
P Public hearings
P Preliminary plans
P Judicial review
P Not party registration
P Not election results
P Not socio-economic data
P Not incumbent residences
11
12
Limits on Gerrymanders
The Census
Districts that Result
P Populations equal
P Minorities fairly represented
P Territory contiguous
P Territory compact
P House districts nested in Senate districts
P Political subdivisions not divided
P Communities of interest not divided
P Politically competitive
P Use Official Census Bureau Population
Counts
13
Equal Population
14
Congressional Districts
P Strict Equality
P Unless Necessary to Achieve “Some
Legitimate State Objective”
P Measuring Population Equality Among
Districts
< Ideal Population
< Deviation
< Average Deviation
< Overall Range
< Preserve Political Subdivisions
< Contiguous Territory
< Compact
< Preserve Communities of Interest
< Preserve the Cores of Prior Districts
< Avoid Contests Between Incumbents
15
16
Legislative Districts
Racial and Language
Minorities
P An Overall Range of Less than 10 Percent
< Unless Proof of Intentional Discrimination
P Unless Necessary to Achieve Some
“Rational State Policy”
< Affording Representation to Political Subdivisions
< Other State Policies
17
Voting Rights Act § 2
Data on Race and Language
P Non-Hispanic White
P Non-Hispanic Black + NH Black & White
P NH Asian + NH Asian & White
P NH Amer. Indian + NH Amer. Indian & White
P NH Pacific Islander + NH Pac. Is. & White
P NH Some Other Race
P NH Other Multiple Race
P Hispanic
P No Discriminatory Effect
P Thornburg v. Gingles - Three Preconditions
< Minority Population Sufficiently Large and
Geographically Compact
< Minority is Politically Cohesive
< Bloc Voting by White Majority Usually Defeats
Minority’s Preferred Candidate
19
P Totality of the Circumstances
P Draw Districts the Minority has a Fair Chance
to Win
20
Equal Protection Clause of the
14th Amendment
Voting Rights Act § 5
P “Covered Jurisdictions”
P Preclearance
P You May Consider Race in Drawing Districts
P Avoid Drawing a Racial Gerrymander
< Justice Department
< U.S. District Court for District of Columbia
P Do Not Regress
< Ability to Elect a Candidate of Choice
P Do Not Intend to Discriminate
P You Need Not Maximize the Number of
Minority Districts
21
Racial Gerrymanders
22
North Carolina
Congressional District 12 - 1992
P Don’t Draw Districts With Bizarre Shapes
23
Election
Data
Services
Inc..
24
“Reapportionment is one area in which
appearances do matter.”
Redistricting is one area in which
appearances do matter
North Carolina
Racial Gerrymanders
Congressional District 12 - 1992
P Draw Districts that are “Reasonably
Compact”
Election
Data
Services
Inc..
27
28
Texas
Texas
Congressional District 30 - 1992
Congressional District 30 - 1996
29
30
Texas
Texas
Congressional District 18 - 1992
Congressional District 18 - 1996
31
32
Texas
Texas
Congressional District 29 - 1992
Congressional District 29 - 1996
33
34
Louisiana
Louisiana
Congressional District 4 - 1992
Congressional District 4 - 1994
35
36
Louisiana
Florida
Congressional District 4 - 1996
Congressional District 3 - 1992
37
Election
Data
Services
Inc.
Florida
North Carolina
Congressional District 3 - 1996
Congressional District 12 - 1997
39
40
North Carolina
North Carolina
Congressional District 12 - 1998
Congressional District 12 - 2000 (1997)
41
38
42
Georgia
Racial Gerrymanders
Congressional District 11 - 1992
Atlanta
P Don’t Let Race Be Your Dominant Motive
Augusta
Savannah
43
44
Racial Gerrymanders
Georgia
Congressional District 4 - 1996
P Don’t Use Race as a Proxy for Political
Affiliation
45
46
Strict Scrutiny
Traditional Districting Principles
P Contiguous Territory
P Compact
P Preserve Political Subdivisions
P Preserve Communities of Interest
P Protect Incumbents
P A Compelling Governmental Interest
P Narrowly Tailored to Achieve that Interest
< Remedying Past Discrimination
< Avoiding Retrogression Under VRA § 5
< Avoiding a Violation of VRA § 2
< Preserve Cores of Prior Districts
< Avoid Contests Between Incumbents
P Nest House Districts within Senate Districts
47
48
Illinois
Congressional District 4 - 1992
Partisan Gerrymandering
49
Partisan Gerrymandering
Federalism in Redistricting
P A justiciable Issue
< Davis v. Bandemer (1986)
P Can it Be Proved?
< Vieth v. Jubelier (2004)
< LULAC v. Perry (2006)
51
The Minnesota Experience
P Legislature enacts a legislative plan (1991)
P Federal court enjoins state court (Dec. 5)
P State court corrects the legislative plan Cotlow v. Growe (Dec. 9)
P U.S. Supreme Court vacates federal court’s
injunction (Jan. 10, 1992)
P Federal court enjoins Secretary of State
(Feb. 19, 1992)
P U.S. Supreme Court reverses federal court
53
(1993)
Federalism in Redistricting
P Federal Court Must Defer to State Court
P Federal Court May Not Directly Review State
Court Decision
P Plan Approved by State Court Subject to
Collateral Attack in Federal Court
P Federal Court Must Defer to State Remedies
54
Drawing Maps that Will
Stand Up in Court
Peter S. Wattson
Senate Counsel
Secretary of the Senate (Legislative)
State of Minnesota
www.senate.leg.state.mn.us/departments/scr/REDIST/Draw/Draw.pdf