How Redistricting Affects You
Jesse Helms once commented that, if you drove down I-85 with both doors of the car open, you’d kill everybody in NC congressional district 12. Ever wondered what redistricting is all about and what laws the people doing it have to comply with? Like, for example, how race plays into it? The recent redistricting for NC is a routine part of the political power game, and you’ll see how, in the upcoming election, it will affect how people in the Triangle vote/who they vote for (you did learn about why you need to vote at the Equality presentation in February, right?).
You may have met our presenter at a previous MRS gathering – Bill Gilkeson is a lawyer and a former newspaper reporter who was on the legal staff of the NC General Assembly for 25 years (retired October 2010, he is currently with the Raleigh law firm of Bailey & Dixon). While on the legal staff he worked on election law, redistricting, and a bunch of other things.
Redistricting in North Carolina
The MRS presenter on April 22, 2012, Bill Gilkeson, is a lawyer and a former newspaper reporter who was on the legal staff of the NC General Assembly for 25 years (retired October 2010, he is currently with the Raleigh law firm of Bailey & Dixon, LLP). During the years he worked for the Legislature, among other things it did was make the changes required by the 2000 and 2010 censuses. Part of the plan for NC congressional districts in 1990 is now infamous, and the 2010 plan is now going through the courts. What’s going on here?
It’s called ‘redistricting.’ Why do we do it (why not leave well enough alone)? Unlike many countries, our philosophy of government is based on the concept of equality among voters – each Congressional district must contain approximately the same number of voters, and every decade there is a census, which routinely establishes that district population is no longer balanced. Since Representatives are limited by the Constitution to 435, every 10 years some states gain and some lose seats.
The problem lies in who will bell the cat – that is, determine the borders of Congressional districts and the election districts from which state representatives and senators are chosen. Different states have different ways of doing this.
In Arkansas a commission consisting of the Attorney General, the Secretary of State, and the Governor sets the districts. In California, a 14-member commission does the redistricting, its members selected by a modified jury-like selection process from citizen applicants screened and then selected randomly. In Iowa, the legislative staff does the task, with strict orders not to consider party or incumbency or to confer with the legislators. The staff presents its plan to the legislature, which must vote it up or down without amendments; if it fails, a second plan is offered, also without amendments; and if that one also fails, the next one may be amended by the legislature (Iowa tends almost always to accept the first plan).
The Iowa plan was a model for HR 824, which has passed the NC House. But the NC Constitution still requires the General Assembly to do redistricting of legislative seats (and assumes they will redistrict US House seats). There is often litigation by people who don’t like the results, and courts can undo what the Legislature has done, but the courts must give the Legislature an opportunity to correct it.
When the phrase ‘the Legislature’ is used, obviously what is meant is whatever political party happens to be in power in the Legislature at the time. The party is kept from a massive power grab only by a few limiting criteria:
(Notice that protection of incumbents and political advantage are not included in the list.)
Size – Since our society is built on the ‘One person, one vote’ principle, population limits district size. This applies to all legislative bodies, state and federal (except the US Senate; each state always has two Senators). Every district has an ideal population for district equality (this time the Congressional District number is just below 80,000).
- For state legislatures, general federal case law is that population numbers can deviate 10% overall from the ideal number.
- For the NC General Assembly, NC case law shaves this to plus or minus 5%.
- For Congressional districts, there must be zero deviation.
(It may be surprising, but the first wave of judicial involvement in the legislative province of redistricting began in the 1960s.)
- Sometimes you must consider race.
- Sometimes you must not consider race.
The 15th Amendment to US Constitution declares that the “right … to vote shall not be denied or abridged … on account of race, color, or previous condition of servitude.” However, the Voting Rights Act of 1965 (VRA), specifically Sections 2 and 5, has provisions that modify this.
Section 2 of the VRA gives plaintiffs and the US government the right to sue if the right to vote is abridged by racial discrimination.
One tactic used by opponents of equality was multi-member districts (see ‘District magnitude’ at this link); areas with the necessary population to elect a candidate of a minority group could be combined with other areas into a district that chose several representatives, allowing the overall majority to overwhelm the vote of the smaller group and choose all the representatives. This was, under Section 2, disallowed by the US Supreme Court in Thornburg v. Gingles (1986), a NC case. Besides prompting more single-member districts in state legislatures, this was held to require the creation of one or more districts controlled by minority voters under certain conditions.
- “First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.”
The Supreme Court in 2009 decided (in the case of Bartlett v. Strickland, a NC case) that this means that a minority group in an area needs a numerical majority of the voting age population before Section 2 requires that a legislative district be created to prevent the group’s votes from being diluted.No minority district is required by Sec. 2 unless the minority group is more than 50% of the voting-age population.
- “Second, the minority group must be able to show that it is politically cohesive.”
- “Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it … usually to defeat the minority’s preferred candidate.”
If all 3 preconditions are met, then the court considers the totality of the circumstances to determine if minority voters do not have equal opportunity to elect candidates of their choice. If the court determines they don’t have that equal opportunity, it may order that a minority district be drawn (as occurred with the NC House districts for Pender and New Hanover counties ).
The Bartlett v. Strickland decision led to a redrawing of district lines for the NC House Districts in Pender and New Hanover Counties, making District 18 a black majority district.
House districts in Pender/New Hanover before B v S:
House districts in Pender/New Hanover after B v S
Section 5 of the VRA must also be considered, though it only applies to selected states and parts of states. This includes nearly all of the states of the Old South plus Texas; it includes Arizona, Alaska, much of New Hampshire, most of Virginia, 40 counties in NC, and a smattering of parts of Florida, South Dakota, Michigan, New York, and California.
During the 2010 election cycle, the state of Florida passed two redistricting amendments to their state constitution that were aimed at preventing future attempts at gerrymandering. Then-governor Charlie Crist, a supporter of both amendments, submitted a request to the DOJ for preclearance, as required by the VRA. In early 2011, Florida’s newly-elected governor Rick Scott, a vocal opponent of these amendments, withdrew the request for preclearance, placing the legal status of the amendments in limbo. In particular, only four of Florida’s counties are required to obtain preclearance under the Act, making it unclear what the status of these amendments is in the remaining counties. Proponents of these amendments, both of which passed with greater than 60% voter approval, are accusing Scott’s administration of attempting to “thwart the will of the voters”, by “abusing their power”, and the VRA’s preclearance clause, as a means to defeat these amendments despite overwhelming voter support.
What Section 5 did was to establish significant federal oversight of the administration of elections in areas (mostly the South) that had previously limited voting with the result that less than 50% of the population in those areas was registered to vote in 1964. Any “change affecting voting” in those covered areas must be federally “precleared” before it goes into effect. The burden of proof is on these areas to demonstrate that any proposed redistricting does not have a retrogressive effect (i.e., it shows neither the intent to discriminate nor the effect of weakening minority voting strength in those jurisdictions). Even if minorities have less than 50% of a district, still if they have the ability to elect candidates of their choice, that ability can’t be diminished.
These 40 NC counties are covered by Section 5:
The key in all plans that consider race is the notion of “compelling state interest.” Complying with the VRA is a compelling state interest, so using race for partisan objectives (within limits) may be OK. When such creations are judicially accepted, they are called “majority-minority districts”. On the other hand, when you have abandoned “traditional redistricting principles” (see below) and have segregated voters by race without tailoring for a compelling state interest, this is called “racial gerrymandering.”
(for the origin of this term, see below) is a (sometimes rather distorted) manipulation of electoral district boundaries for political gain. By creating a few “forfeit” districts where voters vote overwhelmingly for the candidates of the opposition party, politicians can then eke out more (narrow) wins in other districts. This is a time-honored(?) political strategy.
The 1990 census granted NC a new district, which occasioned a major redistricting effort on the part of the state. The following year the General Assembly created a Congressional district plan that had one black majority district: District 1, in the upper Northeastern part of the state; demographics of the area made it the easiest area in which to draw a compact black-majority district, i.e., a district with the presumption that a black candidate would be chosen to represent it. The US Department of Justice, however, rejected the plan; 22% of the population of NC was black, and a single black district (out of 12) was far below that percentage. So in 1992 the Democratic leaders of the Legislature picked a plan earlier created by Republicans, tweaked it to make it more Democrat-friendly, and submitted it. This included the now infamous NC District 12 proposal below (this is the one that Senator Jesse Helms quipped about that, if you drove a car down I-85 with both car doors open, you’d kill everyone in the district):
In 1993, this absurdity reached the Supreme Court in Shaw v. Reno and Justice Sandra Day O’Connor blew the whistle. After a third trip to the Supreme Court, an only partially condensed version of NC 12th district was upheld in 1999 (though it survived two more trips through the judicial system):
And the twelve Congressional districts for NC looked like this:
Consciousness of race is not the only problem criteria when majority-minority districts are intentionally created. In the same period, Texas also ran afoul of racial gerrymandering when three of its 1990 Congressional Districts were thrown out in Bush v Vera (1996).
Computers were used to create the three new districts, one black majority and two Hispanic majority. But race consciousness and noncompactness were somewhat less important factors than a third standard in redistricting: their bizarre shapes.
|Texas Congressional District 18||Texas Congressional District 29|
(Notice how the one at the right fits exactly into the one on the left.)
|Texas Congressional District 30|
Drawing funky-looking districts is a venerable partisan process, dating back to 1812, when a redrawing of Massachusetts state senate election districts produced the contorted Essex county district below, called “gerrymander” in a blend of the word ‘salamander’ and the name of the Governor at the time, Elbridge Gerry.
Another term for seriously noncompact districts is “Bacon-strip districts.” NC has not been immune to these either:
These were both done long before modern technology enabled micro-districting using Census blocks, allowing redistricting to be tweaked to ridiculous extremes.
How gerrymandering is done
Packing concentrates the largest number possible of opposition voters into a single district (to reduce voters’ impacts in other districts)
Cracking involves spreading out opposition voters in as many districts as possible in order to deny them a large enough voting bloc in any (or many) districts.
Federal law prohibits oddly-shaped districts only if it is done to segregate voters by race without a compelling state interest.
Traditional Districting Principles
Both federal and State law refer to “traditional districting principles.” These include:
- Districts of relatively equal populations
- Protecting incumbents
- Preserving the core of existing districts
- Compactness and contiguity
- Respecting and maintaining the partisan make-up of communities
- Limitations on splitting counties (the Whole County Provision)
NC law restricts county-splitting to a minimum when NC House and Senate districts are redone (but not congressional districts).
Article II of the State Constitution says that in drawing State House and Senate districts, no county shall be divided. In 1981, the US Department of Justice said that requirement was inconsistent with the Voting Rights Act, so the General Assembly disregarded it for 21 years. Then in 2002 the State Supreme Court in the case of Stephenson v. Bartlett said the “Whole County Provision,” found in the State Constitution must be honored to the extent it can be honored, consistent with the Voting Rights Act and other State and federal precepts. The Stephenson decision for the first time said the equal protection clause of the State Constitution contained a presumption for single-member legislative districts, and that presumption should be a limitation on the Whole County Provision. The US Justice Department approved the Stephenson opinion and withdrew its 1981 objection to the Whole County Provision. The Court in Stephenson prescribed a step-by-step method for harmonizing the Whole County Provision with the other laws. First, the General Assembly should draw the districts required by the Voting Rights Act. Second, it should take all the counties with just the right population to be single-member districts and make them one-county single-member districts. Third, it should take all the counties that have just the right populations for one or more districts and divide those counties into compact single-member districts. Fourth, for the remaining counties it should group them into clusters of counties and divide the clusters into compact single-member districts, crossing county lines within the cluster as little as possible.
(From the NC General Assembly website)
Role of Traditional Districting Principles, according to the 2002case of Stephenson v. Bartlett:
The United States Supreme Court has “emphasize[d] that these criteria are important not because they are constitutionally required - they are not - but because they are objective factors that may serve to defeat a claim that a district has been gerrymandered on racial lines.” [note] The General Assembly may consider partisan advantage and incumbency protection in the application of its discretionary redistricting decisions, but it must do this in conformity with the State Constitution.
This was re-recognized – barely – in 2004.
The court has never articulated a clear standard for a violation – except “when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.” [note] The Supreme Court has never found such a violation.
Gerrymandering in 2011
This decade’s redistricting issue focuses on one overwhelming fact:
Black people vote Democratic.
- In NC, 22.56% of total population is black.
- 21.18% of the voting age population is black.
- 21.85% of registered voters are black.
- 84.48% of black voters are Democrats.
- 43.46% of all voters are Democrats.
- Black registered Democrats actually vote Democratic at a much higher rate than white Democrats.
Therefore, Republicans want to minimize the impact of black voting.
In the 1990s, they sought to use the VRA to force Democrats (then in charge) to pack black voters into heavily black districts. The result was ugly-ass districts (the idea was the other districts would be lily-white and favor Republicans).
Democrats responded by trying to draw other districts so Democrats could survive.
The result was even uglier-ass districts.
In 2011 Republicans were in charge in the NC General Assembly.
Republicans have packed black voters into districts on their own and tried to persuade USDOJ and the courts that:
- Packing black voters is required by the VRA.
- Packing black voters is allowed by the VRA.
- Packing black voters is allowed under Shaw.
It should come as no surprise that the NAACP and other black groups oppose the packing.
2003 NC State House Plan, as modified in 2009
2011 Proposed NC House Plan
2003 NC Senate Plan
2011 Proposed NC Senate Districts
1999 Congressional districts
2011 Proposed Congressional Districts
Lawsuits have been filed challenging the new district plans, based on:
- Whole County Provision. Both the House and Senate plans split more counties than the old plans – and than 2011 alternative proposals.
- Excessive splitting of precincts (which abridges the right to vote).
- Racial classifications without compelling state interest – “Racial gerrymandering.”
The county and district splitting can be seen by examining the maps above. The packing requires graphs. To see both, check out the tables below.
Split voting precincts:
Whether or not packing has been done in the 2010 plans can be seen by comparing the percentages of blacks in House and Senate districts (VAP = Voting Age Population).
Blacks in Senate districts
NC House plans
(Note: Wake County had 9 Representatives.)
(Note: Wake County will have 11 Representatives.)
2003 NC Senate plans
NC Congressional plans
So, to review …
Drawing unequal districts? For legislative districts, House and Senate, a leeway of 5% is allowed. For congressional districts there is no leeway at all.
Protecting incumbents? There’s no law against it. It’s even recognized as a “traditional districting principle” that can help justify a funky-looking district.
Drawing funky-looking districts? This is OK under federal law unless you do it to separate voters by race without a compelling state interest. After Stephenson v Bartlett, weirdly drawn legislative districts are obliged to honor county lines, and splitting counties shouldn’t be done unless absolutely necessary.
Helping or hurting a party? It is OK to consider this unless you consistently degrade the party’s chances or violate Whole County Provision in legislative districts. Maybe attention to party can even be justified as a “traditional districting principle.”
Considering race? Areas under Section 5 can’t intend to discriminate in Sec. 5. Regardless of intent, however, you can’t make things worse for minorities in Sec. 5 places. If this is done elsewhere, minorities have no remedy under Sec. 2 unless they can be drawn in a 50%+ district. No “racial gerrymandering” is permitted unless there is a “compelling state interest.”
Legislators drawing their own districts? It’s not only permissible; in NC it’s required.