Redistricting Law 2010

Redistricting Law 2010, published by the National Conference of State Legislatures (NCSL), contains much valuable information about American law, along with bits of misinformation and some omissions.

The text manages to present legal facts objectively, with spare analysis and without much opinion, advocacy, or criticism. We shall attempt to provide those here.

Location in book	Author's claim or quote	Source cited as legal authority	Our response
p2, ¶1	Legislative districts must differ by no more than 10% from the smallest to the largest unless justified by what the courts call a "rational state policy".	Gaffney v. Cummings, 412 U.S. 735 (1973) White v. Regester, 412 U.S. 755 (1973)	Linking the smallest and largest populations creates an interdependence that makes it impossible to predict with certainty whether a district's population will be within range at completion. Establishing a firm minimum and maximum at the start tends to provide certainty, unless the number of seats is flexible.
p2, ¶3	Congressional districts must be mathematically equal unless justified by what the courts call a "legitimate state objective".	Karcher v. Daggett, 462 U.S. 725 (1983)	Obsession with precise equality of populations within states vastly complicates the task of drawing districts, making the process and result more difficult for the public to understand, consequently providing cover for gerrymanders. Although insistence on splitting hairs and splitting neighborhoods might make sense if it improved quantitative equality, it actually accomplishes little. Any statistical analysis will show that little is gained by creating islands of calm in a sea of huge waves. In practice, the cost of allowing districts to deviate slightly from the ideal is negligible. What if the policy being served is not state­level or governmental? For example, what if a slight increase in population allows the district to include both sides of a highway, improving contiguity (a federal concern)? What if allowing two districts to vary in population minimizes the need for members of Congress to fly between airports or cross a bridge that might be a target for terrorists (likely to be articulated as a national security concern)?
p3, ¶1	Preconditions to prove discriminatory effect: "3. That, in the absence of special circumstances, bloc voting by the White majority usually defeats the minority's preferred candidate."	Thornburg v. Gingles, 478 U.S. 30 (1986) at 50­51	What if one disadvantaged group forms a local plurality, but Whites are not majority in the locality or the state?
p3, ¶2	A minority must prove a Section 2 violation by "the totality of the circumstances", that 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".	Thornburg v. Gingles, 478 U.S. 30 (1986) at 50­51; 42 U.S. C. § 1973(b) (2006)	What if the elections have been controlled by white power brokers living outside the state, who were not members of the electorate, for the benefit of foreign investment?
p5, ¶1	The North Carolina Supreme Court interpreted Section 2 of the Voting Rights Act to apply only when a disadvantaged group was large enough to comprise a majority of citizens of voting age in a district.	Pender County v. Bartlett, No. 103A06, slip op. at 16­17, 649 S.E.2d 364, 366 (N.C. 2007) at 371, aff'd sub nom. Bartlett v. Strickland, No. 07­689 (U.S. Mar. 9, 2009)	How difficult is it to obtain relible counts of citizens, broken down by race and age, from the 2000 census? Most reports include all residents.
p6, ¶6-7	"This book, the case summaries and other publications of the Redistricting and Elections Committee can be located online at the NCSL Redistricting web site: www.ncsl.org/Default.aspx?TabID=746&tab=1116,115,786#1116 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. It is a resource to help democratic legislatures worldwide carry out their constitutional responsibility.		This link did not work for us. Nor did <A HREF="http://www.comptroller1.state.tn.us/lg/PDF/NCSL%2520Redistrictiing%25202010.pdf">. Try <http://www.senate.leg.state.mn.us/departments/scr/redist/red2000>.
p12, ¶0	Non­Hispanic Whites were overcounted by1.13% in the 2000 census, compared to 0.7% undercount in 1990.		Although failure to respond to the census can cause an undercount, an overcount must stem from a different cause. Who were these extra inhabitants? Were they fictional beings, non­residents, or duplicates the computer did not catch?
p13, ¶4	Imputation, an estimate of the population of non­responding addresses based on the population of responding addresses, was ruled legitimate.	Utah v. Evans, 536 U.S. 452 (2002)	Wouldn't vacant houses be likely not to respond? Wouldn't non­responding addresses be more likely vacant?
p19, fig 3, ex 1	On the census form, anyone at a psychiatric ward, a skilled nursing facility, or a residential treatment facility for juveniles must be counted at group quarters.	U.S. Census Bureau, 2009	To shift population from one community to another, authorities can lock up large numbers of minorities for 48­hour psychiatric observation just before Census Day.
p 19, fig 3, ex 2	The census counts overseas military personnel at their home base or port.	U.S. Census Bureau, 2009	Authorities have an incentive to use a draft to transfer ghetto population to rural military bases and waterfront districts.
p19, fig3, ex3	The census counts college students where they sleep.	U.S. Census Bureau, 2009	Many residential campuses are in rural areas, even if majority of students are urban. At some colleges, students sleep in class. At others, they have insufficient time to sleep.
p 19, fig 3, ex 5	The census counts jailed persons as residents of the jail.	U.S. Census Bureau, 2009	Authorities have an incentive to lock up ghetto residents just before Census Day on suspicion of crime, then drop the charges after the census. Prisons in rural areas steal population from urban ghettoes.
p 19, fig 3, ex 6	The census counts homeless persons as residents of the place where they are found on Census Day.	U.S. Census Bureau, 2009	Authorities have an incentive to conduct sweeps just before Census Day to collect hoboes into a shelter in a politically­favored neighborhood.
p21, ¶2, #3	The federal government analyzes only eight categories of race data, including "Non­Hispanic Asian plus Non­Hispanic Asian and White".	U.S. Department of Justice (18 Jan 2001), "Guidance Concerning Redistricting and Retrogression Under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c" 66 Fed. Reg. 5412	Ours is one of the few parts of the world that officially groups peoples from both sides of the Himalayas as a single race. Most societies that have received immigrants from Asia recognize the racial and cultural contrast between these regions, breaking their inhabitants into distinct races.
p21, ¶2, #4	The federal government analyzes only eight categories of race data, including "Non­Hispanic American Indian plus Non­Hispanic American Indian and White".	U.S. Department of Justice (18 Jan 2001), "Guidance Concerning Redistricting and Retrogression Under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c" 66 Fed. Reg. 5412	For purposes of segregation, Virginia counted most descendants of Pocahontas as white.
p21, ¶2, #5	The federal government analyzes only eight categories of race data, including "Non­Hispanic Pacific Islander plus Non­Hispanic Pacific Islander and White".	U.S. Department of Justice (18 Jan 2001), "Guidance Concerning Redistricting and Retrogression Under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c" 66 Fed. Reg. 5412	Does this category include all people originating on Pacific islands: Aleuts, Ainu, Papuans, Indonesians, Filipinos, Formosans, and Japanese?
p21, ¶2, #6	The federal government analyzes only eight categories of race data, including "Non­Hispanic Some Other Race plus Non­Hispanic Some Other Race and White".	U.S. Department of Justice (18 Jan 2001), "Guidance Concerning Redistricting and Retrogression Under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c" 66 Fed. Reg. 5412	Are Siberian Inuits in this category?
p21, ¶, #7	The federal government analyzes only eight categories of race data, including "Non­Hispanic Other multiple­race (where more than one minority race is listed)"	U.S. Department of Justice (18 Jan 2001), "Guidance Concerning Redistricting and Retrogression Under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c" 66 Fed. Reg. 5412	Many American Indians living on reservations have some Black ancestry and would fall into this category.
p21, ¶2, #8	The federal government analyzes only eight categories of race data, including "Hispanic".	U.S. Department of Justice (18 Jan 2001), "Guidance Concerning Redistricting and Retrogression Under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c" 66 Fed. Reg. 5412	Is the cohesion between Filipino, Chilean, Peruvian, and Dominican immigrants greater than that of any with non­Hispanics of the same race? Do they encounter equivalent degrees of discrimination in employment and housing?
p25­26	There must be strict mathematical equality of congressional districts within each state. "Representatives . . . shall be apportioned among the several states . . . according to their respective numbers. . . ."	U.S. Constitution, Article I, Section 2; Westberry v. Sanders, 376 U.S. 1 (1964); Kirkpatrick v. Preisler, 394 U.S. 526 (1969); White v. Weiser, 412 U.S. 783 (1973); Karcher v. Daggett, 462 U.S. 725 (1983)	Apportionment by numbers applies "among the several states". Yet congressional populations vary widely from one state to the next. On what basis is greater precision required within states than between them? Any statistical analysis will demonstrate that little is gained by creating islands of calm in a sea of huge waves. In practice, the cost of allowing districts to deviate slightly from the ideal is negligible.
p25­p26, note 78	"No state shall . . . deny to any person within its jurisdiction the equal protection of the laws." The equal protection clause requires substantial equality of legislative districts.	U.S. Constitution, 14th Amendment; Reynolds v. Sims, 377 U.S. 533 (1964)	Why are the districts supposed to be equal, if they might elect different numbers of legislators?
p29, ¶2	The courts say, "With a court plan, any deviation from approximate population equality must be supported by enunciation of historically significant state policy or unique features."	521 U.S. 74, 98; Chapman v. Meir, 420 U.S. 1 (1975) at 26; Connor v. Finch, 431 U.S. 407 (1977) at 419­420	What if it is practically impossible to find population units small enough to exchange? That situation may be neither unique nor a reflection of policy.
p30, ¶1	The courts assert that "what is marginally permissible in one State may be unsatisfactory in another depending upon the particular circumstances of the case."	Reynolds v. Sims, 377 U.S. 533 (1964) at 578	If a policy is "unsatisfactory" in the second state, how can it be legitimate to impose it on the residents of the first state?
p30, ¶2 ­ p31, ¶0	Chief Justice Warren's dissent said, "some distinctions may well be made between congressional and state legislative representation. Since, almost invariably, there is a significantly larger number of seats in state legislative bodies to be distributed within a state than congressional seats, it may be feasible to use political subdivision lines to a greater extent in establishing state legislative districts than in congressional districting while still affording adequate representation to all parts of the State."	Reynolds v. Sims, 377 U.S. 533 (1964)	The "almost invariably" now excludes two State Senates of the two largest states, which have been overtaken by the congressional delegations from those states. Does that change the picture?
p37, ¶1	A district court ruled that "[t]he Supreme Court has said only that an interest in avoiding contests between incumbents may justify deviations from exact population equality, not that general protection of incumbents may also justify deviations."	Larios v. Cox, 300 F Supp. 2d 1320, 1352, aff'd 542 U.S.947 (2004) at 1348	What public interest is served by protecting districts for incumbents in a portion of a state that is losing population and districts?
p43, ¶3	It is claimed that "18 members of county government were apportioned among five cities resulting in an overall range of 11.9 percent."	Abate v. Mundt, 403 U.S. 182 (1971)	That case pertained to Rockland County NY, which has five towns but no cities.
p47	Arkansas 2000s congressional districts have an overall range of "5698" over an ideal size of "668,350", or "0.10%".		Readers, beware! Compute this figure for yourselves.
p52, note 225	"The term 'language minorities' or 'language minority group' means persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage."	Voting Rights Act, Act of Aug. 6, 1975, Pub. L. No. 94­73, Title II, secs. 203, 206, 207, 89 Stat. 400, 401­02, codified as amended at 42 U.S.C. §§ 1973d. 1973k, 1973l(c)(3)	Does that mean that Inuits from Canada, Greenland or Siberia cannot claim status in the same language minority group as their Alaskan cousins? Does that mean that Africans, Haitians, Portuguese­speaking Brazilians, Arabs, Turks, Hawaiians, Samoans, Cajuns, Pennsylvania Dutch, and Gullah­speaking people of the Low Country around Savannah cannot claim to be language minorities? Why discriminate on the basis of continent of origin?
p53, ¶3	The U.S. Supreme Court said that "a challenge to a district as a racial gerrymander will not succeed unless it shows that race was the predominant factor in its creation. A racial gerrymander challenge will fail if race was a factor, but the predominant purpose was to advance the cause of a party, as in the creation of a safe Democratic district by including Black voters because they more reliably support Democratic candidates."	Cromartie v. Hunt, 34 F Supp.2d 1029 (E.D.N.C. 1998), rev'd sub nom. Hunt v. Cromartie, 526 U.S. 541 (1999)	Do the rights of political parties surpass those of racial minorities?
p69, ¶1	The Supreme Court interpreted Section 2 of the Voting Rights Act to apply only when a disadvantaged group was large enough to comprise more than 50% of voting age population in a district.	Bartlett v. Strickland, No. 17­689 (U.S. Mar. 9 2009)	Even if a cohesive disadvantaged group is able to win election with a plurality in a multi­ethnic district, or even if the group consistently turns out more than 50% of voters because of a large number of aliens in the district, the courts say the group may be cracked into more than one district.
p76, ¶5	"If a compact district were drawn with the minority group a majority of the voting age population in the district, the district would not be a racial gerrymander."		It is possible to make a compact, minority­controlled district and shift it to stuff in excessive additional ghetto neighborhoods, making surrounding districts more white, without losing the compact shape. Would that not be a racial gerrymander?
p84, note	"Three political subdivisions in Virginia (Fairfax City, Frederick County and Shenandoah County) have 'bailed out' from coverage pursuant to Section 4 of the Voting Rights Act."	U.S. Department of Justice, Civil Rights Division, Procedures for the Administration of Section 5 of the Voting Rights Act of 1965, as amended	This information comes directly from a government document. Compare p97 which mentions Fairfax County, not the city of the same name.
p88, ¶1	A "jurisdiction must satisfy two prongs to achieve preclearance: 1) the purpose prong, and 2) the effect prong."		Thus, if the purpose of an incompetently­written policy change is to shut minorities out of election, but the actual effect is an improvement in their situation, the unrealized intent still provides a basis for rejection.
p89, ¶1	The effect prong for preclearance is satisfied if there is no "retrogression in minority voting strength"	Beer v. United States, 425 U.S. 130 (1976)	That would mean that past discrimination may continue, a novel interpretation of the law.
p89, ¶1	A ruling found that a plan meets legal muster if there is no "decrease . . . in the absolute number of representatives which a minority group has a fair chance to elect."	Ketchum v. Byrne, 740 F.2d 1398,1402 n.2 (7th Cir. 1984)	What if the minority has doubled or tripled in population in the preceding decade, entitling it to more seats? If it had no seats to begin with, is retrogression possible? Is there no requirement of equity? What if the legislature increases in size, with the minority receiving the same number of representatives, but a smaller fraction of the whole?
p97, ¶469	"More recently, Fairfax County, Va., has bailed out" of preclearance.	no citation	Compare p84 which mentions Fairfax city, not the county of the same name. Is this a typographical error?
p98	A judge said that "no aggregation of less than 50 percent of an area's voting age population can possibly constitute an effective voting majority".	Gingles v. Edmisten, 590 F. Supp. 345 (E.D.N.C. 1984) at 389 n. 3	What if recent immigrants are a bare majority of the voting age population, far outnumbered at the polls by Blacks who have been citizens since birth?
p106, ¶0	The courts' "traditional districting principles" include, according to the author, "5. Preservation of cores of districts, and 6. Protection of incumbents."	Abrams v. Johnson, 521 U.S. 74 (1997)	Why give any weight to anti­democratic traditions? Slavery, child labor, and witch trials all have a basis in tradition, yet none receive any favor from today's courts.
p116, ¶3	The Connecticut Apportionment Board "took into account the party voting results in the preceding three statewide elections, and, on that basis, created what was thought to be a proportionate number of Democratic and Republican legislative seats." The court ruled that "judicial interest should be at its lowest ebb when a state purports to fairly allocate political power to the parties in accordance with their voting strength and, within quite tolerable limits, succeeds in doing so ... neither we nor the district courts have a constitutional warrant to invalidate a state plan, otherwise within tolerable population limits, because it undertakes, not to minimize or eliminate the political strength of any group or party, but to recognize it and, through districting, provide a rough sort of proportional representation in the legislative halls of the State."	Gafney v. Cummings, 412 U.S. 735 (1973) at 738	Such a petrification can lock in past election results for a decade; it deprives voters of the ability to change numbers if and when they change their minds.
p146, ¶2	The authors claim that, although Minnesota may be easier to redistrict than New York City, "in most instances local jurisdiction redistricting will be less complex than either state or congressional redistricting".		The most likely reason is the tight population range imposed on congressional districts. With reasonable population leeway, it is possible to draw many congressional districts out of whole municipalities. Local jurisdiction redistricting usually involves dividing municipalities into small units that do not appear on maps published by Rand McNally or the U.S. Geological Survey. The lack of straightforward reports makes urban populations difficult and time-consuming to compile, discouraging community activists and allowing gerrymanders to proliferate.
p146, ¶3	"It is considerably easier to comply with the neutral redistricting principles of compactness and contiguity in local jurisdictions—such as municipalities with census boundaries that run for the most part on existing street grids—than it is to satisfy those principles at the state level where large expanses of sparsely populated areas must be taken into account."		Where are these grid­respecting municipalities? Municipal annexation tends not to create compact jurisdictions. Even in Virginia, where the courts oversee the process, annexations by the City of Roanoke have made it impossible to travel across Roanoke County without leaving it.
p146, ¶4	"The same is generally true for the 'communities of interest' redistricting principle. Although sometimes a topic of heated debate, most local jurisdictions have readily recognizable neighborhoods that are clearly 'communities of interest' for redistricting purposes, while less developed areas outside most local jurisdiction boundaries tend to be less identifiable."		Those tend to be small jurisdictions. People are more likely to live in a smaller number of large jurisdictions with fluid neighborhoods that the census does not report. These urbanites are at a disadvantage. They pay their taxes, just like the folks across the city line. They should be able to compare their communities and neighborhoods to others without performing a lot of computation of unfamiliar census tracts and blocks. To be even­handed, the census should publish statistics by neighborhood across the board. Whenever Altadena and Ladera Heights appear on statistical reports, so should Boyle Heights and Pacoima. Whenever Jamul and Ramona appear, so should San Ysidro and La Jolla. Whenever Castro Valley and Kentfield appear, so should Mission and Ingleside. Whenever Sheridan Beach and Cottage Lake appear, so should Duwamish and Belltown. Whenver Spring and Cloverleaf appear, so should Houston Heights and Kashmere. Whenever Metairie and Chalmette appear, so should Algiers and Carrollton. Whenever Cicero and Winnetka appear, so should Bridgeport and Hegewisch. Whenever Suitland and Tysons Corner appear, so should Buzzard Point and Georgetown. Whenever Dundalk and Towson appear, so should Ashburton and Locust Point. Whenever Paoli and Willow Grove appear, so should Germantown and Bridesburg. Whenever Brookline and Marblehead appear, so should Roxbury and Back Bay. Whenever Armonk and Nanuet appear, so should Manhattanville and Spuyten Duyvil. Whenever Hewlett and Yaphank appear, so should Canarsie and Cambria Heights.
p155, ¶4	In Arkansas, "(t)he Board of Apportionment must redistrict on or before February 1 of the year following the decennial census."		The census year is 2010. That means Arkansas must redistrict by February 1, 2011. Yet the full results will not be released that early.
p173	"The commencement of the mapping process for both the congressional and legislative districts shall be the creation of districts of equal population in a grid­like pattern across the state."	Arizona Constitution, Article 4, pt. 2, Section 1, ¶14	Does that mean a rectangular grid?
p174	"Congressional districts shall be numbered consecutively commencing at the northern boundary of the State and ending at the southern boundary."	California Constitution, Article 21, Section 1, ¶(c)	What if there is no consecutive path from one end of California to the other? Wouldn't it make more sense to assign small numbers to the districts with the smallest area, so the digits fit more neatly on a map?
p175	"Districts for the Senate, Assembly, and State Board of Equalization shall be numbered consecutively commencing at the northern boundary of the State and ending at the southern boundary."	California Constitution, Article 21, Section 2, ¶(f)	Wouldn't it make more sense to assign small numbers to the districts with the smallest area, so the characters fit more neatly on a map?
p179	"To the maximum extent possible, the plan should avoid drawing districts that are oddly shaped."	Idaho Code, § 72­1506, ¶(3)	What are the odds that anyone who cared about oddly­shaped boundaries would choose to live in a state shaped like Idaho?
p190	"Each congressional district shall be numbered in a regular series, beginning with congressional district 1 in the northwest corner of the state and ending with the highest numbered district in the southeast corner of the state."	Michigan Compiled Laws § 3.63(c)(ix)	This rule increases the numbers as population density increases, as district area decreases. Wouldn't it make more sense to assign small numbers to the districts with the smallest area, so the digits fit more neatly on a map?
p193	"The legislative districts must be numbered in a regular series, beginning with House District 1A in the northwest corner of the state and proceeding across the state from west to east, north to south, but bypassing the seven­county metropolitan area until the southeast corner has been reached; then to the seven­county metropolitan area outside the cities of Minneapolis and St. Paul; then to Minneapolis and St. Paul."	(Minnesota) Order Stating Redistricting Principles and Requirements for Plan Submission, Zachman v. Kiffmeyer, No. C0­01­160 (Minn. Spec. Redis. Panel Dec. 11, 2001, Legislative Districts, ¶4	This rule increases the numbers as population density increases, as district area decreases. Wouldn't it make more sense to assign small numbers to the districts with the smallest area, so the digits fit more neatly on a map?
p202	"[E]ach senate district shall contain as nearly as may be an equal number of inhabitants, excluding aliens, . . ."	New Yorkshire Constitution, Article III, Section 4	How many inhabitants is that? How many senate districts must be drawn?
p203	"The Whole County Provision of the North Carolina Constitution must be harmonized with the one person, one vote requirement of the U.S. Constitution and the Voting Rights Act by applying the following criteria: "6. For a county not having the right population for any number of districts, group that county with the minimum number of other whole counties to create a cluster of counties that has the right population for a certain number of single­member districts. Then divide that cluster of counties into single­member districts, breaking county lines only to the minimum extent necessary. Within the clusters, 'communities of interest should be considered in the formation of compact and contiguous districts.'"	(North Carolina) Redistricting Criteria for State House and State Senate Districts, Stephenson v. Bartlett, No. 94PA02, 355 N.C. 354, 562 S.E.2d 377 (Apr. 30, 2002)	That must mean a natural or whole number, not "any number", integral or not. Because the districting is supposed to run sequentially through the state, the clusters of counties should not be minimal in number, but should strive to approach a whole multiple of the ideal district.
p204	"District boundaries shall be created by using the boundaries of political subdivisions and city wards as they exist at the time federal decennial census on which the apportionment is based, or such other basis as the general assembly has directed."	Ohio Constitution, Article XI, Section 6	Who chose the boundaries of the city wards? On what maps do they appear?
p206	"Unless absolutely necessary, no county, incorporated town, borough, township or ward shall be divided in forming either a senatorial or representative district."	Pennsylvania Constitution, Article II, Section 16	Cities, no matter how small, lack protection.
p207	"Point to point contiguity is acceptable as long as adjacent districts do not use the same vertex as points of transversal."	(South Carolina) Guidelines for Legislative and Congressional Redistricting, adopted by Senate Judiciary Committee's Subcommittee on Redistricting, April 29, 2003, IV. Contiguity	Among its faults, point contiguity makes the legitimacy of one district depend on the shape of others.
p214	"Districts shall be based on consideration of the varied factors that can create or contribute to communities of interest. These factors may include, among others, . . . political beliefs, voting trends, and incumbency considerations."	(Virginia) Committee Resolution No. 1, adopted by the Senate and House Committees on Privileges and Elections, April 3, 2001	If a number of voters harbor the same political delusions, is that adequate grounds for combining them in one district?
Location in book	Author's claim or quote	Source cited as legal authority	Our response