Paul Smith, Attorney at Law Jenner and Block Washington, DC. Gerry Hebert, Attorney at Law Washington, DC

Transcription

1 Paul Smith, Attorney at Law Jenner and Block Washington, DC Gerry Hebert, Attorney at Law Washington, DC The 63rd Annual Meeting of the Southern Legislative Conference August 15, 2009

2 First the basics: How can we differentiate between lines drawn by redistricting experts and lines drawn by babies or monkeys?

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4 Redistricting Principles Foundations of redistricting law are shaky Deeply divided U. S. Supreme Court Little or no consensus among lower courts What the consequences for the states? Difficult for states to balance: Race Party Politics

5 Traditional Districting Principles Catch-22 Compliance with one redistricting law may result in liability under another law One-person, one-vote Voting Rights Act Shaw v. Reno doctrine Political Gerrymandering

6 Three Legal Requirements that Come into Play 1. U.S. Constitution: Oneperson, one vote requirement. 2. Section 2 of the VRA 3. U.S. Constitution: Racial Gerrymandering or Shaw v. Reno Doctrine 4. Political Gerrymandering no clear theory has emerged, yet issue remains justiciable

7 Q. What are the implications of the Supreme Court decisions in the partisan gerrymandering cases (Vieth and LULAC)? A. Legislators have free rein to pursue partisan advantage as zealously as they like when drawing district lines. Caveat: some state statutes and constitutions impose limits on political gerrymandering.

8 Population Equality Requirements Two Distinct Standards: Legislative & Local Districts-- less strict Congressional Districts--strict

9 Population Equality Requirements State Legislative and Local Districts Requires States to make an honest and good faith effort to achieve population equality Standard is different here (i.e., far more flexible) than congressional standard even though the words sound the same (achieve substantial population equality)

10 One-Person, One-Vote Requirement for state legislative & local districts: Origin--14th Amendment 10% Rule of Thumb If you go above 10%...

11 One-Person, One-Vote Requirement for state legislative & local districts: Total Deviation 10% Generally, No Justification Required Total Deviation 10% Justification ALWAYS Required

12 One-Person, One-Vote Requirement for state legislative & local districts: In a few cases, courts have struck down state or local redistricting plans with a deviation below 10%. In Larios v. Cox, for example, a three-judge panel in Georgia found that the State s legislative apportionment plan, with a total population deviation of 9.98%, violated the one person, one vote principle. Larios court found the deviations were tainted by arbitrariness or discrimination as a result of regionalism and partisan gerrymandering, and held the plan unconstitutional. U.S. Supreme Court summarily affirmed.

13 Population Equality For Congressional Districts Article 1, Section 2 of the U.S. Constitution Leading Case: Karcher v. Daggett The Karcher v. Daggett Two-Step

14 Population Equality The Karcher v. Daggett Two-Step Ask 2 Questions: Congressional Districts 1. Could the population differences among the districts be reduced or eliminated through a good faith effort to draw equipopulous districts? 2. If the State did not make a good faith effort to achieve equality, can the State prove each variance among the districts was necessary to achieve some legitimate goal?

15 One-Person, One-Vote Requirement for congressional districts: In 2001, Pennsylvania s congressional map was struck down because of a 19 person deviation (the Vieth case). Court found lack of good faith and that the deviation was therefore not justified

16 Redistricting and the Voting Rights Act Section 5 of the Voting Rights Act Applies to 16 States 9 states totally covered 7 states partially covered

17 Supreme Court s 2009 NAMUDNO decision The constitutionality of Section 5 was challenged in Northwest Austin Municipal Utilities District Number One v. Holder. In a recent 8-1 decision, Supreme Court interpreted the bailout provisions of the VRA to allow the utility district to seek an exemption from Section 5 s requirements (bailout). In NAMUDNO, the court held that all political subdivisions- -meaning, simply, any division of the state that discharges some governance function--may bail out. For now, Section 5 is still valid and applicable to redistricting, although several Justices have expressed skepticism about its constitutionality.

18 Section 5 of the Voting Rights Act Racially discriminatory purpose Intent (even if non-retrogressive) Racially discriminatory effect Retrogression (Beer)

19 Section 2 of the Voting Rights Act: Applies Nationwide A Results Test 3 Gingles Preconditions 50% Majority Rule Proportionality is relevant Dilution: fragmentation/packing

20 Packing/Dilution Biggest issues in post-2000 redistricting for minority opportunity districts What is Packing? Dilution? Packing. A district presently elects a minority candidate at 55% minority. The state redraws the district at 65% minority. What if the neighboring district is 45% minority? Packing one district with more minorities than necessary to elect a candidate of choice may produce vote dilution in another district. It may also raise issues under Shaw v. Reno.

21 Bartlett v. Strickland Was About Whether Coalition Districts Are Cognizable under Section 2 Coalition Districts: what are they? Districts in which a minority group constituting less than 50% of a district s population but nonetheless can elect its candidates of choice when joined by predictably supportive non-minority voters.

22 Bartlett v. Strickland The Court held that in order to satisfy the first Gingles factor, a minority group must constitute more than 50% of the voting-age population in a proposed majority-minority district. The Court held that minority voters must make up more than 50% of the voting age population in the relevant geographic region to qualify as a group capable of electing a candidate of its choice. As a result, if a minority group constitutes less than 50% of the population, it cannot prevail on a Section 2 claim, even if the group would be able to regularly elect the candidate of its choice with the reliable support of cross-over white voters. Under Bartlett, while legislators may be permitted to draw such cross-over districts, they are not required by the Voting Rights Act to do so.

23 Redistricting The 1993 Shaw v. Reno decision Excessive and unjustified use of race Tugs States in directions seemingly counter to Voting Rights Act VRA Shaw

24 What is the Shaw v. Reno test? TRP Race

25 Examples of Traditional Redistricting Criteria: Respect for political subdivisions Respect for communities of interest Protection of Incumbents Preserve core of existing districts Compactness Maintain partisan make-up of district Contiguity

26 Determining Race as a Factor District Shape and Demographics Beauty Contests: Appearances Matter Statements Made by Legislators and Staff (L.L.S.S.) Nature of Redistricting Data (e.g. blocks)

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28 Examples of Districts from 1990 s Found Violative of the Shaw v. Reno Doctrine

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31 Examples of Districts from 1990 and 2000 Round of Redistricting Found Not to Be Violative of the Shaw v. Reno Doctrine

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33 South Texas Congressional Districts Redrawn in 2003

34 Legal challenges inevitable Race and politics at boiling point Democrats and Republicans at near parity Litigation a near certainty State s Goal: Adopt principles Stick to them Build record Prevail in court

35 One Size Does Not Fit All Legal arguments and redistricting methods in one state cannot be mechanically replicated in another

36 How do you Build a Record? Adopt and Stick to: Traditional Districting Principles Beware: In Creating Minority Opportunity Districts-- Packing minority districts may violate VRA. Fragmenting minority population may violate VRA.

37 Possible Gains and Losses in Apportionment After 2010 Census /4 +3/

38 WHAT S CHANGED? Politically CONGRESS IN 1991: DEMOCRATIC MAJORITY CONGRESS IN 2000: REPUBLICAN MAJORITY CONGRESS IN 2010: DEMOCRATIC MAJORITY

39 Partisan Control of Southern Legislatures State Assembly/House Senate Governorship Alabama Democratic Democratic Republican Arkansas* Democratic Democratic Democratic Florida* Republican Republican Republican Georgia* Republican Republican Republican Kentucky Democratic Republican Democratic Louisiana Democratic Democratic Republican Maryland* Democratic Democratic Democratic Mississippi Democratic Democratic Republican Missouri Republican Republican Democratic North Carolina* Democratic Democratic Democratic Oklahoma Republican Republican Democratic South Carolina* Republican Republican Republican Tennessee 49 D, 49 R, 1 Carter Co. Rep. Republican Democratic Texas* Republican Republican Republican Virginia Republican Democratic Democratic West Virginia* Democratic Democratic Democratic * = one party control of all three

40 Paul Smith, Attorney at Law Jenner and Block Washington, DC Gerry Hebert, Attorney at Law Washington, DC The 63rd Annual Meeting of the Southern Legislative Conference August 15, 2009