1. Introduction





Since the earliest days of the republic, redrawing the boundaries of legislative and congressional districts after each decennial census has been primarily the responsibility of the state legislatures. Following World War I, as the nation’s population began to shift from rural to urban areas, many legislatures lost their enthusiasm for the decennial task and failed to carry out their constitutional responsibility.


For decades, the U.S. Supreme Court declined repeated invitations to enter the “political thicket” Footnote of redistricting and refused to order the legislatures to carry out their duty. In 1962, however, in the seminal case of Baker v. Carr, Footnote the Court held that the federal courts did have jurisdiction to consider constitutional challenges to redistricting plans. The next year, in Gray v. Sanders, Justice Douglas declared: “The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing— one person, one vote.” Footnote In 1964, in Wesberry v. Sanders, the Court held that congressional districts must be redrawn so that “as nearly as is practicable one man’s vote in a congressional election is ... worth as much as another’s.” Footnote And, in Reynolds v. Sims, the Court held that the boundaries of legislative districts must be redrawn and that the “overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.” Footnote


While the courts were striking down redistricting plans for inequality of population, Congress enacted the Voting Rights Act of 1965 Footnote to remedy the inequality of opportunity afforded to racial and ethnic minorities to participate in elections. Section 2 of the act prohibited any state or political subdivision from imposing a “voting qualification or prerequisite to voting, or standard, practice or procedure to deny or abridge the right to vote on account of race or color.” Footnote Section 5 required a covered jurisdiction to preclear any changes in its electoral laws, practices, or procedures with either the U.S. Department of Justice or the U.S. District Court for the District of Columbia before it could take effect. Footnote The Justice Department began to use this new authority to require that redistricting plans be precleared.


In the 1970s, in Gaffney v. Cummings Footnote and White v. Regester, Footnote the Court developed a standard of population equality that required legislative districts to differ by no more than 10 percent from the smallest to the largest, unless justified by some “rational state policy.”


In 1975, Congress acted to facilitate drawing the new districts with equal populations by enacting Pub. L. No. 94-171, which required the secretary of commerce to report census results no later than April 1 of the year following the census to the governors and to the bodies or officials charged with state legislative redistricting. Footnote It also required the secretary to cooperate with state redistricting officials in developing a nonpartisan plan for reporting census tabulations to them.


In the 1980s, in Karcher v. Daggett, Footnote the Court developed a standard of equality for congressional districts that required them to be mathematically equal, unless justified by some “legitimate state objective.”


Although the Court’s work on rules for population equality was essentially completed in the 1980s, its rules for treatment of racial and ethnic minorities were far from settled. In the 1970s, in Beer v. United States, Footnote the Court had said that the Justice Department could refuse to preclear a redistricting plan if it would lead to a retrogression in the position of racial minorities, that is, if the plan would be likely to cause fewer minority representatives to be elected than before. The U.S. Supreme Court began the 1980s with City of Mobile v. Bolden, Footnote saying that a plan would not be found to violate the Fourteenth Amendment or Section 2 of the Voting Rights Act unless the plaintiffs could prove that its drafters intended to discriminate against them. Congress was swift to react to this new limitation on how to prove racial discrimination. In 1982, after most of the plans based on the 1980 census had already been enacted, Congress amended Section 2 of the Voting Rights Act to make clear that it applied to any plan that results in discrimination against a member of a racial or ethnic minority group, Footnote regardless of the intent of the plan’s drafters.


How were the courts to determine whether a redistricting plan would have discriminatory results? In the 1986 case of Thornburg v. Gingles, Footnote the Court set forth three preconditions a minority group must prove in order to establish a violation of Section 2:


1. That the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district;

2. That it is politically cohesive, that is, it usually votes for the same candidates; and

3. That, in the absence of special circumstances, bloc voting by the White majority usually defeats the minority’s preferred candidate. Footnote


If the minority group could establish those three preconditions, it would be entitled to proceed to the next step: proving a Section 2 violation by “the totality of the circumstances.” Those circumstances would have to show that the members of the minority group had “less opportunity than other members of the electorate to participate in the electoral process and to elect representatives of their choice.” Footnote


What did that mean, “less opportunity?” In North Carolina, where Gingles arose, it meant that multimember districts where Blacks were in the minority and had been unable to elect candidates to office had to be replaced with single-member districts where Blacks were in the majority. To the rest of the country, and to the state legislatures and commissions who were going to be drawing new districts after the 1990 census, it meant that wherever there was a racial or ethnic minority that was “sufficiently large and geographically compact to constitute a majority in a single-member district,” Footnote the state would have to draw a district for them or risk having the plan thrown out, even if the state acted without any intent to discriminate.


Being forewarned of the effects of Section 2, drafters of redistricting plans after the 1990 census went to great lengths to draw majority-minority districts wherever the minority population counts seemed to justify it. In states where redistricting plans could not take effect until they had been precleared by the Justice Department, the Justice Department encouraged the state to draw districting plans that created new districts where members of a racial or language minority group (primarily African Americans or Hispanics) were a majority of the population. These new “majority-minority” districts were intended to protect the states from liability under Section 2 for failing to draw districts that the minority group had a fair chance to win. As states drew the plans, they discovered that the Justice Department had little concern that majority-minority districts be compact. In some cases, the department refused to preclear a plan unless the state “maximized” the number of majority-minority districts by drawing them wherever pockets of minority population could be strung together. As the plans were redrawn to obtain preclearance, some of the districts took on bizarre shapes that caused them to be labeled “racial gerrymanders.” Footnote


The racial gerrymanders were attacked in federal court for denying White voters their right to equal protection of the laws under the Fourteenth Amendment. Footnote The U.S. Supreme Court publicly rebuked the Justice Department for its maximization policy in Georgia Footnote and held that a racial gerrymander must be subjected to “strict scrutiny” to determine whether it was “narrowly tailored” to achieve a “compelling state interest” in complying with Section 2. Footnote Many of the racial gerrymanders were struck down by the federal courts because their drafters had not followed “traditional districting principles.” Footnote


The states redrew the districts once again. As 1998 drew to a close, North Carolina’s congressional plan was before the U. S. Supreme Court for the fourth time. Footnote


This book attempts to explain the current state of redistricting law in a way that will help each state’s plan drafters meet their constitutional responsibility to draw new districts after the 2000 census. It includes entirely new sections in chapter 4 on “Racial Gerrymandering” and “Traditional Districting Principles,” and a new table 5, “1990s Districting Principles Used by Each State.” The text of these state principles is set forth in a new appendix G. Chapter 7, “Federalism in Redistricting,” also is new, as are appendices E and F, which describe state commissions that draw legislative and congressional plans, respectively.


Readers should note that this book is restricted to federal legal requirements. It does not address state constitutional requirements or the decisions of state courts that have interpreted those requirements.


Readers are warned that a state’s constitution often imposes additional requirements beyond the federal law discussed in this book.


The law discussed in this book applies to legislative and congressional redistricting plans drawn by state legislatures or by commissions or boards set up under state law. Most of the law in this book applies with equal force to redistricting plans for local government, as explained in appendix B. Its application to the election of state judges is discussed in appendix C.


The reader’s attention is called to the earlier publication in this series, Redistricting Case Summaries from the 1990s, a state-by-state summary of all the 1990s cases in both state and federal courts relating to legislative and congressional redistricting.


This book, the case summaries, and other task force publications can be located online at the NCSL web site: http://www.ncsl.org/programs/legman/elect/redist.htm. The online version of this book includes hyperlinks to the U.S. Supreme Court cases, the U.S. Code, and the Code of Federal Regulations, as well as to many of the state constitutional provisions that set forth traditional districting principles. The bibliography includes hyperlinks to redistricting web sites in the United States, Canada, the United Kingdom and Australia. It is a resource to assist democratic legislatures in carrying out their constitutional responsibility worldwide.




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This page is maintained by the Redistricting Task Force for the National Conference of State Legislatures
Update:  10/31/03 (psw)
Comments: peter.wattson@senate.leg.state.mn.us