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SENATE BILL 25 ORIGINALSENATOR MCPHERSON
March 22, 2011
Traditional Districting Principles
NCSL. Redistricting Law. 2010. Pages 105-106.
1. Compactness -Shaw v. Reno (Shaw I); Bush v. Vera; DeWitt v. Wilson
2. Contiguity - Shaw v. Reno
3. Preservation of Counties and Other Political Subdivisions - Shaw v. Reno;
Abrams v. Johnson
4. Preservation of Communities of Interest - Miller v. Johnson; Abrams v. Johnson
5. Preservation of Cores of Prior Districts - Abrams v. Johnson
6. Protection of Incumbents - Abrams v. Johnson
7. Compliance with Section 2 of the Voting Rights Act - Shaw v. Hunt (Shaw II)
Complying with Section 2 of the Voting Rights Act
NCSL. Redistricting Law. 2010. Page 76.
A claimed violation of Section 2 of the Voting Rights Act could provide the
compelling governmental interest the state needs to create a race-based
district.
“To prevail on such a claim, a plaintiff must prove that the minority group is
‘sufficiently large and geographically compact to constitute a majority in a
single-member district;’ and that the minority group is ‘politically cohesive;’ and
that ‘the white majority votes sufficiently as a bloc to enable it…usually to
defeat the minority’s preferred candidate’.” – Thornburg v. Gingles
Complying with Section 5 of the Voting Rights Act
NCSL. Redistricting Law. 2010. Page 77.
The Supreme court, after lengthy consideration of the role the Department of
Justice played in these cases, made it clear that the test for Section 5, as
decided in Beer v. United States (425 U.S. 130 (1976)), was non retrogression, not
maximization of minority districts as urged by the Department of Justice.
“We do not accept the contention that the State has a compelling interest in
complying with whatever preclearance mandates the Justice Department
issues.” – Miller v. Johnson
“There is no indication Congress intended such a far reaching application of
Section 5, so we reject the Justice Department’s interpretation of the statute
and avoid the constitutional problems that interpretation raises’.” – Id. At 927
The Foundation of a Defensible Plan
NCSL. Redistricting Law. 2010. Page 113.
What does this mean for the 2010 round of redistricting?
Now more than ever, identifying and using traditional race-neutral
districting principles is key. In racial gerrymandering cases, courts are
willing to pierce the veil of claimed traditional districting principles to
see if they really were used; it is a highly fact-based inquiry.
“That the legislature addressed these interests does not in any
way refute the fact that race was the legislature's predominate
consideration.”– Shaw II
You Need Not Maximize the Number of Minority Districts
Wattson, Peter. “How to Draw Redistricting Plans that Will Stand Up in Court.” National Redistricting Seminar. NCSL. September
26,2010. Pages 22-23.
Notwithstanding anything you might have been told by the Justice
Department in the 1990’s you are not required to maximize the
number of majority-minority districts.
The Justice Department’s policy of pressuring states to maximize the
number of majority-minority districts was not based on a correct
reading of the Voting Rights Act.
You Need Not Maximize the Number of Minority Districtscontinued…
Wattson, Peter. “How to Draw Redistricting Plans that Will Stand Up in Court.” National Redistricting Seminar. NCSL. September
26,2010. Page 23.
Section 2 included a proviso, added through the efforts of Senator Dole
in 1982, that ‘”nothing in this section establishes a right to have
members of a protected class elected in numbers equal to their
proportion in the population.” - 42 U.S.C. § 1973 (b).
In other words, § 2 did not mandate proportional representation. So,
how could it be construed by the Justice Department to require that a
minority group be given the maximum number of elected
representatives?
Wattson, Peter. “How to Draw Redistricting Plans that Will Stand Up in Court.” National Redistricting Seminar. NCSL. September
26,2010. Page 23.
The Court refused to draw a bright line giving plan drafters a safe harbor if they
created minority districts in proportion to the minority population. That, the Court
said, would ignore the clear command of the statue that the question of whether
minority voters have been given an equal opportunity to elect representatives of
their choice must be decided based on the “totality of circumstances,” rather than
any single test. It would encourage drafters to draw majority-minority districts to
achieve proportionality even when they were not otherwise necessary and would
foreclose consideration of possible fragmentation of minority populations among
other districts where they were not given a majority. - 512 U.S. at 1017-21 (slip op.
at 20-24).
You Need Not Maximize the Number of Minority Districtscontinued…
Wattson, Peter. “How to Draw Redistricting Plans that Will Stand Up in Court.” National Redistricting Seminar. NCSL. September
26,2010. Page 24.
When a state creates a majority-minority district without regard to
“traditional districting principles,” the district will be subject to strict
scrutiny and probably struck down. – Shaw v. Reno, Miller v. Johnson and Bush v. Vera
Avoid Drawing a Racial Gerrymander
Wattson, Peter. “How to Draw Redistricting Plans that Will Stand Up in Court.” National Redistricting Seminar. NCSL. September
26,2010. Page 25.
As Justice O’Conner said, “[R]eapportionment is one area in which appearances
do matter.” - 509 U.S. at 647 (slip op. at 15).
A reapportionment plan that includes in one district individuals who belong to the same
race, but who are otherwise widely separated by geographical and political boundaries, and
who may have little in common with one another but the color of their skin, bears an
uncomfortable resemblance to political apartheid. It reinforces the perception that
members of the same racial group – regardless of their age, education, economic status, or
the community in which they live – think alike, share the same political interests, and will
prefer the same candidates at the polls…By perpetuating such notions, a racial gerrymander
may exacerbate the very patterns of racial bloc voting that majority - minority districting is
sometimes said to counteract. – 509 U.S. at 647-48 (slip op. at 15-16).
Avoid Drawing a Racial GerrymanderContinued…
Wattson, Peter. “How to Draw Redistricting Plans that Will Stand Up in Court.” National Redistricting Seminar. NCSL. September
26,2010. Page 32.
If you do choose to subordinate traditional districting principles to race
in order to create a majority-minority district, be aware that it is
unlikely your district will stand up in court. A racial gerrymander is
subject to strict scrutiny under the Equal Protection clause of the 14th
Amendment. To survive strict scrutiny, a racial classification must be
narrowly tailored to serve a compelling government interest. – Shaw v. Reno
Follow Traditional Redistricting Principles
Wattson, Peter. “How to Draw Redistricting Plans that Will Stand Up in Court.” National Redistricting Seminar. NCSL. September
26,2010. Page 33.
What may qualify as a “compelling governmental interest?”
So far, the Supreme Court has considered remedying past discrimination,
avoiding retrogression in violation of § 5 of the Voting Rights Act, and
avoiding a violation of § 2 of the Voting Rights Act to be possible compelling
governmental interests.
A Compelling Governmental Interest
Wattson, Peter. “How to Draw Redistricting Plans that Will Stand Up in Court.” National Redistricting Seminar. NCSL. September
26,2010. Page 33.
During the 1990s and 2000s, however, no racial gerrymander was
explicitly found by the Supreme Court to have been sufficiently
narrowly tailored to achieve any of these compelling governmental
Interests.
See, Shaw v. Reno, Miller v. Johnson, Bush v. Vera, League of United
Latin American Citizens v. Perry, contra, King v. State Board of Elections,
King v. Illinois Board of Elections.
Don’t assume that yours will be the first!
Narrowly Tailored to Achieve that Interest
Put the Genie Back in the Bottle!
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