Redistricting II: Law, precedents, and the Texas case

Background One man one vote –Baker v. Carr –Wesberry v. Sanders Voting Rights Act of 1965 –Section 2

Section 2 “Based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of (a protected group) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected…is one circumstance that may be considered: Provided 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.”

Background One man one vote –Baker v. Carr –Wesberry v. Sanders Voting Rights Act of 1965 –Section 2 –Section 5 Racial gerrymandering: when race for its own sake and not for other redistricting principles is the legislature’s dominant and controlling rationale in drawing its district lines and the legislature subordinates traditional race-neutral districting principles to racial considerations.

Background One man one vote –Baker v. Carr –Wesberry v. Sanders Voting Rights Act of 1965 –Section 2 –Section 5 Racial gerrymandering –Shaw v. Reno –Miller v. Johnson –Shaw v. Hunt

Background (cont.) Partisan gerrymandering –Davis v. Bandemer –Vieth et al. v. Jubelirer

Kennedy’s dissent “The Court’s own responsibilities require that we refrain from intervention in this instance. The failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights make our intervention improper. If workable standards do emerge to measure these burdens, however, courts should be prepared to order relief.” “The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering. After all, these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views. “First AmendmentFirst Amendment

Oral Argument Wednesday! League of United Latin American Citizens, Travis County, Jackson, Eddie and GI Forum of Texas v. Perry, Rick (Texas Gov.)

Texas background 2001 court drawn plan 2003 Republican legislature redraws district lines 2005 district court says new lines ok MAPS

League of United Latin American Citizens v. Perry 1. A redistricting plan drawn with “the singleminded purpose” of gaining additional partisan advantage, using three year old census data that overpopulates Latino districts, violates the one person one vote rule 2. A redistricting plan drawn with “the singleminded purpose” of gaining additional partisan advantage, using three year old census data that overpopulates Latino districts, eliminates a Latino majority district, Congressional District 23 (CD 23), and eliminates all competitive districts in which the minority vote had been the deciding vote under the pre-existing legal redistricting plan, is an impermissible political gerrymander in violation of the First and Fourteenth Amendment Partisan gerrymandering and partisan voting cannot be used as a subterfuge to discount evidence of minority vote dilution such as the elimination of a Latino majority district and racially polarized voting, to defeat a minority community’s claim of violation of the Voting Rights Act and the First and Fourteenth Amendment

Travis County v. Perry The Texas legislature’s 2003 replacement of a legally valid congressional districting plan with a statewide plan, enacted for “the single-minded purpose” of gaining partisan advantage, violates the stringent constitutional rule of one man one vote because populations in the new districts will not be equal.

Jackson v. Perry The Equal Protection Clause (one man, one vote) and the First Amendment prohibit States from redrawing lawful districting plans in the middle of the decade, for the sole purpose of maximizing partisan advantage. Section 2 of the Voting Rights Act forbids a state from destroying a district effectively controlled by African-American voters, merely because it is impossible to draw a district in which African- Americans constitute an absolute mathematical majority of the population. A bizarre-looking congressional district, which was intentionally drawn as a majority-Latino district by connecting two far-flung pockets of dense urban population with a 300-mile-long rural “land bridge,” is an unconstitutional racial gerrymander that just serves partisan political ends because drawing a compact majority-Latino district would have required the mapmakers to compromise their political goal of maximizing Republican seats elsewhere in the State.

GI Forum v. Perry Political partisanship is insufficient rationale under Section 2 of the Voting Rights Act and the Constitution, to dismantle a Latino-majority district to elect the Anglo-preferred candidate. Section 2 does not permit a state to offset the dismantling of a majority-minority district in one part of the state with another in another part of the state

The State’s argument The 2003 Texas redistricting replaced an antimajoritarian court- drawn map that had “perpetuated” much of a 1991 Democratic Party gerrymander with a map that resulted in a congressional delegation better reflecting the State’s voting patterns 2. It is not unconstitutional for a state to voluntarily redistrict either in conjunction with an alleged partisan gerrymander or as a derivative consequence of this Court’s one-person, one-vote standards. 3. The district court correctly found that §2 of the Voting Rights Act was not violated by the alteration of specific districts in the 2003 map – in particular old Congressional Districts 24 and 23, neither of which was found to be controlled by minority voters 4. The district court correctly found that the creation of new Congressional District 25 did not constitute an unconstitutional racial gerrymander 5. §2 of the Voting Rights Act did not obligate the State of Texas to create seven out of seven districts in South and West Texas as Hispanic opportunity districts

Issues for debate Legality of “dismantling” majority-minority districts Legality of de facto “dilution” of minority votes Legality of mid-decade redistricting Legality of partisan gerrymanders

Equal protection clause No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws th Amendment