Reflections on Redistricting in 2001

By Laughlin McDonald

Vol. 22, No. 1, 2000, pp. 9-10

Despite the confusion created by the Supreme Court's recent decisions striking down majority black congressional districts, legislators would be advised to keep several things in mind as they approach the 2000 redistricting.

The Court did not rule that majority-minority districts are unconstitutional. To the contrary, the Court held that a state may conduct redistricting "with consciousness of race" and that it may put minority communities in a district where they have "some common thread of relevant interest." What a state may not do, according to the Court, is subordinate all of its traditional redistricting principles to race or redistrict solely on the basis of race.

The Court also affirmed the constitutionality of the Voting Rights Act. That means that states covered by Section 5 of the Act, which includes most jurisdictions in the South,must take race into account in redistricting to make sure that they do not enact plans that cause a "retrogression" in minority voting rights. For example, if a covered state with twenty majority black house districts were to enact a plan following the 2000 Census that contained only fifteen majority black districts, the plan would be retrogressive on its face, i.e., it would make minority voters worse off than they were under the previous plan, and would almost certainly violate Section 5.

States, whether covered by Section 5 or not, must also comply with Section 2 of the Act. Section 2 prohibits the use of any voting practice that "results" in discrimination, or causes minority voters to have less opportunity than other voters to elect candidates of their choice. Thus, where reasonably compact majority-minority districts can be drawn, and where candidates favored by minority voters are usually defeated by whites voting as a bloc, the failure to create majority-minority districts could be vulnerable to challenge in court under Section 2. As Justice O'Connor has written, it would be "irresponsible" for a state to disregard Section 2.

It would also be prudent in light of the Court's recent decisions for proponents of majority-minority districts to make a contemporaneous record showing that in instances where such districts were drawn, the legislature also took into account non-racial factors, such as complying with one person-one vote, maintaining the configuration of existing districts, maintaining an existing partisan balance, keeping together communities with similar interests or socio-economic characteristics, and drawing districts that were contiguous and reasonably compact. This list is not exhaustive, but if the legislature can show that it took these and similar factors into account it should be able to rebut any charge that someone might later bring that it drew districts solely on the basis of race.

Another issue which is already causing controversy in some states is whether to use the actual or corrected census figures in drawing district lines. The census bureau and the National Academy of Sciences, the nation's most respected scientific organization, have concluded that the actual count, or enumeration, of residents will likely significantly undercount minorities. For that reason, the census will correct the undercount by surveys or statistical sampling conducted after the enumeration. The actual count and the corrected count will be released at the same time in 2001.

The Supreme Court has held that the corrected count cannot be used for purposes of apportioning, or allocating, congressional seats among the states. But there is nothing in the decision that prohibits a state from using the corrected count for all other purposes, including drawing district lines. The states, for example, will no doubt insist that

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the corrected count be used in allocating grants under various federal programs. Otherwise, if the enumeration were used, states could lose millions of dollars in federal money.

There are at least three reasons for believing that legislation prohibiting use of any data in redistricting except the actual enumeration would be unlawful:

First, it would likely violate the one person-one vote principle, which requires states to make a good faith effort to draw districts of substantially equal population. The state's are given some leeway in complying with this standard to accommodate reasonable state interests, but no state could claim that using admittedly inaccurate data, when accurate data was readily available, furthered any reasonable state interest. The use of inaccurate data would be especially suspect in the context of congressional redistricting, where the equal population standard is most strictly applied.

Second, since the enumeration disproportionately undercounts minorities, using it in redistricting could violate Section 2 and Section 5. For example, it could lower the benchmark (or basis of comparison) for determining whether a state's redistricting plan which reduced the number of majority-minority districts was retrogressive and/or resulted in the dilution of minority voting strength. It could also result in the "packing" of undercounted minorities in a district to limit their effectiveness in other districts.

Third, the sponsors of legislation prohibiting the use of corrected census data have generally been Republicans who apparently believe that most of those who would be missed in the enumeration would vote Democratic. Excluding those individuals from the redistricting database could confer an advantage on Republicans by minimizing the influence of minority, i.e., Democratic voters. An effort by one party, however, that "consistently degrades" another party's influence on the political process would be an unconstitutional political gerrymander.

Given the fact that more accurate data is available, the only conceivable purpose to be served by using the uncorrected census in redistricting would be to dilute minority voting strength or gain a systematic partisan advantage. Neither of these justifications would be constitutional.

Redistricting is always a difficult and divisive task. It won't be any easier this time around as legislators wrangle over the meaning of the Court's new redistricting decisions and how to deal with the census undercount. Resolution of these issues is particularly critical for minorities, for it will determine whether there is further erosion of their political influence or continued fulfillment of the promises of the Voting Rights Act.

Laughlin Mcdonald is director of the Southern Regional Office of the American Civil liberties Union