Shifting Sands of Redistricting Law

Shifting Sands of Redistricting Law

The 2000 redistricting cycle began unofficially in early 2001 when the United States Census Bureau began delivering what is known as the PL 94-171 data to state legislatures. The primary reason for taking the census is to comply with the U.S. Constitutional mandate for data needed to reapportion the 435 seats in the U.S. House of Representatives. With the PL 94-171 data in hand, states swiftly began to draw a seemingly infinite number of state legislative and congressional district plans to use in the first elections of the new decade. Eventually, state legislators adopted plans that were carefully crafted to satisfy a wide range of criteria including compliance with one-person one-vote, the federal Voting Rights Act and traditional redistricting principles such as compact and contiguous districts. In addition, legislators meticulously designed plans to further political goals without violating federal and state statutes. A couple of states, New Jersey and Virginia, had to draw plans for 2001 elections and almost all states had plans in place for the 2002 elections with the exception of Maine and Montana where redistricting is done prior to the 2004 election.

It is hard to declare that the 2000 redistricting cycle is over when there are still a handful of legal challenges pending, but all states have now held elections using new district lines for both congressional and legislative boundaries. However, a few lawsuits are still active. Following the 1990 census, successful court challenges to redistricting resulted in states redrawing lines well into the later part of the decade. There were even still cases pending against 1990s redistricting plans in the year 2000 when the new census was already underway. Barring additional surprises, it appears that the litigation of the 2000 redistricting is now winding down.

In this round of redistricting, well over 150 lawsuits were filed in at least 40 states challenging new plans adopted. Most of those challenges proved unsuccessful, and courts generally upheld legislative or commission plans. In a few cases, legislatures deadlocked; leaving the line drawing to courts, but for the most part, states accomplished their constitutional duty to adopt new plans.

It should be noted that there are 12 states that give first and final authority for legislative redistricting to an entity other than the legislature. Idaho and Arizona were the last states to join this group - using a commission for the first time in the 2000 round of redistricting. There are pros and cons to removing the process from the traditional legislative process. And the record of accomplishment by commissions is inconsistent. The commissions vary greatly from state to state in terms of their make-up. Most of them include appointments made by legislative leaders. Six states employ a board or commission to draw and adopt a congressional plan.

Iowa conducts redistricting unlike any other state. Iowa does not put the task of drawing district boundaries in the hands of either a commission or the elected legislators. Instead nonpartisan legislative staff develop the plans which are then approved or rejected by the legislature. Furthermore, Iowa is unique in that the plans for the Iowa House and Senate as well as U.S. House districts are drawn without any political data or information such as the addresses of incumbents.

This round of redistricting has not produced the same blockbuster Supreme Court opinions that were handed down in the 1990s. Primarily under the federal Voting Rights Act, numerous challenges resulted in a series of decisions from the high court throughout the 1990s.

That is not to imply that this cycle has been devoid of developments that may well affect the 2010 round of redistricting—only 5 years away. There have been several significant developments in redistricting law stemming from legislative and court actions since 2000--including two major U.S. Supreme Court decisions. A series of excerpts from the NCSL redistricting web publication, Redistricting Cases: The 2000s (graciously and competently hosted by the Minnesota Senate and maintained by Minnesota Senate Counsel Peter Wattson), follows. These case summaries cover three key areas of redistricting law that have evolved in the past couple of years:

Proving Discrimination within the 10 Percent Range
Redistricting More than Once a Decade
Partisan Gerrymandering

The web address for the full list of 2000 redistricting case summaries is--http://maps.commissions.leg.state.mn.us/website/CaseSum03/viewer.htm

Proving Discrimination Within the 10 Percent Range

Despite the fact that some counselors were warning states that the assumed “safe harbor” of an overall plan deviation of less than 10% might not hold up, many states enacted legislative plans that were right at the 10% overall deviation. This passage appeared in NCSL’s pre-redistricting publication Redistricting Law 2000.

“States should not assume that any legislative districting plan having less than a 10 percent overall range is safe from successful challenge. Even if the Court is prepared to allow the states some leeway from redistricting perfection, now that the basic law of population equality is well established, it is unlikely that the justices would be unduly hesitant to strike down a plan having an overall range of less than 10 percent if a challenger were to succeed in raising a suspicion that the plan was not a good faith effort overall or that there was something suspect about the districts involved.

A relatively high mean deviation, even within the context of an overall range of less than 10 percent, may make it easier for a challenger to meet the burden of establishing an equal protection violation.”

Redistricting Law 2000, 34-35.

Plaintiffs filed several cases on this front including prominent ones in New York and Georgia. In Georgia, the federal court overturned the state’s legislative plans.

New York

Rodriguez v. Pataki, No. 02 Civ. 0618; Allen v. Pataki, No. 02 Civ. 3239 (S.D. N.Y. Mar. 15, 2004), aff’d 543 U.S. ____ (Nov. 29, 2004) (No. 04-218) (mem.)

Plaintiffs challenged various New York State Senate districts enacted in 2002, some as violations of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and some as violations of § 2 of the Voting Rights Act of 1965. One group of plaintiff-interveners challenged a Senate district and another challenged the 17^th Congressional District as violating § 2 of the Voting Rights Act. A three-judge district court dismissed all the challenges.

Plaintiffs alleged that the 2002 Senate plan violated the “one person, one-vote” principle by overpopulating a contiguous cluster of 29 Senate districts in New York City and its northern suburbs and underpopulating all 24 districts to the north. (The nine Long Island districts all have populations nearly equal to the statewide mean.) Plaintiffs alleged that the cumulative effect was to give the “downstate” region approximately two-thirds of a district less than its share of the state’s population warranted, while giving the “upstate” region two-thirds of a district more, thus depriving “downstate” residents of their fair share of representation. A three-judge district court ruled that the alleged malapportionment did not constitute invidious discrimination, because the 2002 Senate plan took account of legitimate districting principles, such as preserving the cores of existing districts and avoiding the pairing of incumbents.

Georgia

Larios v. Cox, No. 1:03-CV-693-CAP, 300 F. Supp.2d 1320 (N.D. Ga. Feb. 10, 2004), appeal filed No. 03-1413 (Apr. 9, 2004)

Plaintiffs challenged the 2001 congressional and House plans and the 2001 and 2002 Senate plans enacted by the Georgia General Assembly on various grounds. A three-judge federal district court upheld the congressional plan but struck down the legislative plans as a violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The order regarding the 2001 Senate plan was stayed pending preclearance of the plan. The overall range of both the 2001 House plan and the 2002 Senate plan was 9.98 percent, but the court found that the General Assembly had systematically underpopulated districts in rural south Georgia and inner-city Atlanta and overpopulated districts in the suburban areas north, east, and west of Atlanta in order to favor Democratic candidates and disfavor Republican candidates. The plans also systematically paired Republican incumbents while reducing the number of Democratic incumbents who were paired. The plans tended to ignore the traditional districting principles used in Georgia in previous decades, such as keeping districts compact, not allowing the use of point contiguity, keeping counties whole, and preserving the cores of prior districts.

The court set a deadline of March 1, 2004, for the General Assembly to submit new plans to the court.

Larios v. Cox, 306 F. Supp.2d 1212 (Mar. 1, 2004)

When the General Assembly failed to enact new plans by the March 1, 2004, deadline, the three-judge court appointed a Special Master to draw them.

Larios v. Cox, 306 F. Supp.2d 1214 (Mar. 2, 2004)

The court directed the Special Master to comply with the U.S. Constitution and §§ 2 and 5 of the Voting Rights Act, and “to apply Georgia’s traditional redistricting principles of compactness, contiguity, minimizing the splits of counties, municipalities, and precincts, and recognizing communities of interest,” but that protecting incumbents had no place in a plan formulated by a court. The court directed the Special Master to create only single-member districts in the Senate plan and to preserve the multi-member districts in the enjoined House plan only “where the multi-member districts are not tainted by the factors which rendered the previous plans unconstitutional, and only so long as their inclusion does not undermine the other guidelines we have already enumerated.” The court prohibited the Special Master and his experts and assistants from reviewing or analyzing political data.

Larios v. Cox, No. 1:03-CV-693-CAP (N.D. Ga. Mar. 15, 2004)

On March 15, 2004, the Special Master submitted his report and recommendation for two new plans: a Senate plan with an overall range of 1.91 percent and a House plan with an overall range of 1.95 percent, with the deviations randomly scattered across the state. The Special Master reported that his recommended plan had a number of majority-minority districts roughly proportional to minority voters’ share of the voting-age population and more than in the benchmark plans. He reported that the districts were more compact than in the enjoined plans, made less use of water contiguity and touch-point contiguity, and split fewer counties than the enjoined plans. The multi-member House districts in the enjoined plan were all replaced by single-member districts.

Larios v. Cox, ___ F. Supp.2d ____, 2004 WL 867768 (N.D. Ga. Apr. 15, 2004), aff’d 542 U.S. ____ (June 30, 2004) ( No. 03-1413) (mem.)

The three-judge court approved the plan drawn by the Special Master, finding that it met the “one-person, one-vote” requirement of the Equal Protection Clause, the minority protection requirements of the Voting Rights Act, and was faithful to Georgia’s traditional redistricting principles.

Maryland

In Marylanders for Fair Representation Inc. v. Schaefer, 849 F. Supp. 1022, 1032 (D. Md. 1994), the District Court stated its belief that “a plan with a maximum deviation below 10 percent could still be successfully challenged, with appropriate proof ... of an unconstitutional or irrational purpose.” The Court rejected the argument that the 10 percent rule forecloses challenges to a plan and stated that there should be a remedy available for those whose votes are diluted by a lower than 10 percent plan that is adopted for unconstitutional or irrational state policy purposes. Id. at 1033-1034. The plaintiffs in this case, however, were unable to prove that the plan at issue, with a “maximum deviation” (overall range) of 9.84 percent, was for an illegitimate state purpose or objective.

Redistricting More than Once a Decade

In several high-profile episodes, state legislatures revisited redistricting plans that had been used for 2002 elections and re-drew them in time for the 2004 elections. The litigation of these efforts resulted in different outcomes, and challenges in Texas are ongoing. In most of these cases, legislatures replaced plans promulgated by courts. The Colorado State Supreme Court struck down the legislature’s attempt under state constitutional language, and the U.S. Supreme Court refused to take the case on appeal.

Colorado

Salazar v. Davidson, No. 03SA133 and Davidson v. Salazar, No. 03SA147 (Colo. Dec. 1. 2003), cert. denied, Colorado General Assembly v. Salazar, No. 03-1082 (U.S. June 7, 2004)

The Colorado Attorney General brought an original proceeding in the Colorado Supreme Court to challenge the constitutionality of Senate Bill 03-352, a congressional redistricting law enacted by the General Assembly to replace the court-ordered congressional districts used in the 2002 general election. The Court held the new law unconstitutional because the Colorado Constitution, Article V, § 44, requires the General Assembly to redistrict after each census and before the ensuing general election and does not allow redistricting at any other time. Because the General Assembly failed to redistrict during this constitutional window, it relinquished its authority to redistrict until after the 2010 census.

Colorado General Assembly v. Salazar, No. 03-1082 (U.S. June 7, 2004)

On June 7, 2004, the U.S. Supreme Court declined to grant certiorari, with Chief Justice Rehnquist and Justices Scalia and Thomas dissenting on the ground that Article I, § 4, of the U.S. Constitution may prevent a State from excluding its legislature from drawing congressional districts.

New Hampshire

Petition of Bellow, No. 2004-361 (N.H. June 22, 2004)

Petitioner alleged that, since the state constitution permits the legislature to redistrict only once every ten years, and since the legislature had failed to do so in time for the 2002 election, and the state Supreme Court had drawn the plan used in the 2002 election. The legislature had exceeded its constitutional authority by amending the court’s redistricting plan in 2004. The court disagreed, holding that the legislature’s 2004 amended plan was its one plan for the decade. The New Hampshire Supreme Court left the question of whether the amended plan violated “one-person, one-vote” requirements or the Voting Rights Act for further consideration by the trial court.

Texas

Session v. Perry, No. 2:03-CV-354, 298 F. Supp.2d 451 (E.D. Tex. Jan. 6, 2004), vacated and remanded for further consideration in light of Vieth v. Jubelirer, 543 U.S. ____ (Oct. 18, 2004) (No. 03-1391 et al.) (mem.)

The 2002 election for congressional seats was run under the plan adopted by the federal district court in Balderas v. State, No. 6:01-CV-158 (E.D. Tex. Nov. 14, 2001). In 2003, the Texas Legislature attempted to pass a new congressional plan during its regular session and two special sessions, and succeeded during its third special session, enacting H.B. No. 3, Plan 1374C, on October 13, 2003. Plaintiffs alleged that Plan 1374C was invalid because “(1) Texas may not redistrict mid-decade; (2) the Plan unconstitutionally discriminates on the basis of race; (3) the Plan is an unconstitutional partisan gerrymander; and (4) various districts in Plan 1374C dilute the voting strength of minorities in violation of § 2 of theVoting Rights Act.” The three-judge court rejected the challenges.

Partisan Gerrymandering

One of the most watched cases by every elected lawmaker in the country this cycle came out of Pennsylvania. The U.S. Supreme Court agreed to hear a case alleging that Pennsylvania congressional districts were an unconstitutional political gerrymander. The high court eventually ruled in a 5-4 decision that partisan gerrymandering was still permissible.

Pennsylvania

Vieth v. Pennsylvania, No. 1:CV-01-2439, 241 F. Supp.2d 478 (M.D. Pa. Jan. 24, 2003), aff’d sub nom. Vieth v. Jubelirer, No. 02-1580 (U.S. Apr. 28, 2004)

On April 18, 2002, the General Assembly enacted a new congressional plan, HB 2545, Act 34, which reduced the overall range of the plan from 19 persons to one person. On April 23, 2002, the court stayed its order of April 8, allowing Act 1 to be used for the 2002 election. It set a hearing for May 8, 2002, on the question of whether Act 34 should govern elections in 2004 and beyond.

On January 24, 2003, a three-judge court held that Act 34 met equal population requirements.

The three-judge court also held that the plan was not an unconstitutional partisan gerrymander, because plaintiffs had not alleged facts “indicating that they have been shut out of the political process.” 241 F. Supp.2d at 484. The court noted that, even though the plan met equal population requirements, it “jettisons every other neutral non-discriminatory redistricting criteria that the Supreme Court has endorsed in one person-one vote cases.” Id. at n.3.

Vieth v. Jubelirer, No. 02-1580, 541 U.S. ____ (Apr. 28, 2004)

The U.S. Supreme Court affirmed the judgment of the district court. Justice Scalia, joined by the Chief Justice, Justice O’Connor, and Justice Thomas, concluded that political gerrymandering claims are nonjusticiable because no judicially discernible and manageable standards for adjudicating these claims exist. They would therefore overrule Davis v. Bandemer, 478 U.S. 109 (1986), in which the Court held that political gerrymandering claims are justiciable but could not agree on a standard for assessing them.

Justice Kennedy concurred in the judgment, agreeing that there are currently no manageable standards for measuring whether a political gerrymander burdens the representational rights of a party’s voters, but not wanting to foreclose the possibility of finding a limited and precise rationale for correcting a proven constitutional violation. He suggested exploration of the First Amendment as a possible basis for analyzing a partisan gerrymander, looking for whether a redistricting plan burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association.

Writing separately in dissent, Justices Stevens, Souter, and Breyer each proposed a different standard for adjudicating political gerrymandering claims. Justice Breyer suggested that the differing standards did not mean that no constitutional standard could be developed, but rather that they served to stimulate further discussion that might result in a majority agreeing on a standard in some future case.

Conclusion

While it may yet be too early to close the book on the 2000 redistricting cycle, that time is near. A few states including California are beginning to discuss redistricting reform, but major changes in the underlying process are unlikely. One big event that many states will need to follow closely is how Congress reviews Section 5 of the federal Voting Rights Act. Section 5 is the part of the Act that requires all or parts of 16 states to submit their redistricting plans (and all changes in voting laws) to the U.S. Department of Justice (or a federal court in D.C.) for approval before those plans can become law. Section 5 expires in mid-2007, so Congress must revisit the provision, and could mean changes to the sometimes controversial process.

Some of the smart states are actively working with the Census Bureau to prepare for 2010. It’s not that far away.