2000s Redistricting Case Summaries
This page describes cases related to redistricting following the 2000 census. As new complaints are filed and cases decided, we encourage you to send the NCSL redistricting listserv a message that includes the citation, a hypertext link if available, and a brief description of the issues. As time allows, we will consolidate that information on this page.
Summaries of cases arising from the 1990 census may be found at: 1990s Redistricting Case Summaries. Names and contact information for redistricting experts in each of the 50 state legislatures are included with those summaries.
Many of the documents to which these summaries are linked are in portable document format (.pdf). You will need the Adobe® Acrobat® reader to view them. If you do not have it installed on your system, you may download it for free from the Adobe web site.
Sinkfield v. Bennett, No. CV 93-689-PR (Cir. Ct. Montgomery Co. 2001)
This litigation concerning congressional districts began in 1993 based on the 1990 census, as described in Alabama Redistricting Cases: the 1990s. In January 2001, plaintiffs John and Camilla Rice moved that the Court vacate its consent decree from the previous decade and “relinquish the jurisdiction it had retained over future redistricting efforts.” See Gustafson v. Johns, No. 01-0447-BH-S, 215 F. Supp.2d 1279 (S.D. Ala. Jul. 8, 2002) (three-judge court). The Circuit Court denied the motion and an appeal was taken. Id. at 1249. On October 19, 2001,the Alabama Supreme Court “rejected the appeal.” Id. at 1250.
On March 13, 2001, plaintiffs moved to file a supplemental complaint that the 2000 census would show that the congressional and state board of education districts were malapportioned and diluted the voting strength of African Americans. Plaintiffs requested the court to defer proceedings on the complaint “long enough to afford the Alabama Legislature a full and fair opportunity to enact and to obtain Voting Rights Act preclearance of redistricting plans for Congress, the Alabama State Senate, the Alabama House of Representatives, and the Alabama State Board of Education.” Should the Legislature fail in that task, plaintiffs requested the court to carry it out.
Barnett v. Alabama, No. Civ.A. 01-0433 (S.D. Ala. Nov. 7, 2001) (three-judge court)
On June 15, 2001, plaintiffs challenged the Legislature’s failure to re-draw the Alabama House and Senate districts following the 2000 census. The Legislature passed plans that were approved by the governor on July 3, 2001. When those plans were precleared in October and November 2001, the district court dismissed the complaint as moot.
Barnett v. Alabama, No. Civ.A. 01-0434-BH-S, 171 F. Supp.2d 1292 (S.D. Ala. Nov. 20, 2001) (three-judge court)
Filed simultaneously with the challenge to the Alabama House and Senate districts, this litigation challenged Alabama’s congressional districts as unconstitutional. The case (along with the Congressional districts claim in Montiel v. Davis, No. CV-01-D-1376-N (S.D. Ala.)) was transferred to the Middle District of Alabama to be consolidated with the Douglas litigation, discussed below.
Montiel v. Davis, No. Civ.A. 01-0447-BH-S, 215 F. Supp.2d 1279 (S.D. Ala. Jul. 8, 2002) (three-judge court)
On June 21, 2001, plaintiffs brought suit because the Alabama Legislature had not yet drawn new (post-2000 census) districts for the Legislature, Congress, and State Board of Education. 215 F. Supp.2d at 1282 n.2. After the Legislature drew the House and Senate districts, the plaintiffs amended their complaint to challenge those districts. Id. Plaintiffs alleged that the districts violated the one-man, one-vote principles found in the federal Equal Protection Clause and were the result of unconstitutional racial gerrymandering. Id. at 1284-88. The Board of Education claims and Congressional districts claims were severed. Id. at 1282 n.2. See also Barnett v. Alabama, 171 F. Supp.2d 1292 (S.D. Ala. Nov. 20, 2001) (severing and transferring the Congressional district claim). As to the state legislative districts, the Court granted summary judgment in favor of the defendants. On the one-man, one-vote challenge, the Court said that an overall deviation of less than ten percent from the “ideal district” was entitled to a rebuttable presumption of constitutionality. Plaintiffs failed to provide evidence to overcome that presumption. Id. at 1284-86. As to the racial gerrymander claim, the court explained that strict scrutiny is only triggered for application to a facially neutral law when the plaintiff “establish[es] that the ‘legislature subordinated traditional race-neutral districting principles.’” 215 F. Supp.2d at 1287 quoting Hunt v. Cromartie, 526 U.S. 541 (1999). Plaintiffs failed to provide any evidence to trigger strict scrutiny review, so their claim failed.
Webb v. Alabama, No. CV-01-1964 (Cir. Ct. Montgomery Co. Jan. 2002)
On July 2, 2001, plaintiff sought a declaratory judgment that the redistricting plans passed by the Legislature were constitutional. The defendants filed a motion seeking entry of judgment on the pleadings or, in the alternative, summary judgment on the ground that the complaint failed to state a justiciable controversy; the parties were in agreement that the redistricting plans were constitutional. In January 2002, a joint motion to dismiss was filed and the case was dismissed.
Ex parte Rice, No. 1010125 (Ala. Nov. 8, 2001)
In October 2001, John and Camilla Rice filed a petition for writ of prohibition, mandamus, or other extraordinary relief in the Alabama Supreme Court to prevent Webb from proceeding in the Montgomery Circuit Court until the Alabama Supreme Court had ruled on the appeal in Sinkfield. In November, the Court denied the writ. See Gustafson v. Johns, No. 05-00352-CG-C, 434 F. Supp.2d 1246, 1250, 1251 (S.D. Ala. May 22, 2006) (three-judge court).
Rice v. English, No. CV-2001-2311 (Cir. Ct. Montgomery Co., Jan. 28, 2002), aff’d No. 1010968, 835 So.2d 157 (Ala. May 24, 2002)
Act No. 2001-727 of July 2001 redistricted the Alabama State Senate in accordance with the 2000 census. All districts were drawn to be within +5% relative deviation of the ideal population. Plaintiffs contended that the plan violated Ala. Const. 1901 art. IX, § 200, which states, in part, that the State Senate districts “shall be as nearly equal to each other in the number of inhabitants as may be . . . .” Plaintiffs contended that this provision required the State Senate districts to be drawn to the same rigorous one-person-one-vote standards that apply to congressional redistricting, or, in the Circuit Court’s words, “perfect population equality among the Senate Districts,” Order at 31. The trial court rejected that interpretation of Article IX, §200 and granted summary judgment for the defendant state election officials. In a separate order, the Circuit Court held that redistricting claims made under state law were justiciable.
Rice v. English, No. 1010968, 835 So.2d 157 (Ala. May 24, 2002)
The Alabama Supreme Court affirmed the judgment of the Circuit Court. The Court held that the separation-of-powers doctrine did not preclude judicial review of redistricting claims made under state law. The Court further held that the plaintiffs could not contend for the first time on appeal that the Alabama Senate redistricting plan ran afoul of a different part of Ala. Const. 1901 Article IX, §200 because it split county lines.
Douglas v. Alabama, No. CV-2001-1985 (Cir. Ct. Montgomery Co.)
When the Legislature failed to redraw Alabama’s Congressional districts following the 2000 census, plaintiff alleged state and federal constitutional violations in state court. The defendants removed the litigation to federal court.
Douglas v. Alabama, No. 01-D-922-N (M.D. Ala. Apr. 29, 2002) (three-judge court)
This litigation arose in state court and was removed to federal court, where it was consolidated with the Congressional district claims in Montiel v. Davis, No. CV-01-D-1376-N (S.D. Ala.), and Barnett v. Alabama, No. 01-0434 (S.D. Ala.). The federal court allowed the Legislature time to draw a plan, and when it failed to do so, the case proceeded to trial. During the trial, the Legislature drew a plan that the Governor signed into law. That plan was then submitted for preclearance under § 5 of the Voting Rights Act. The federal court decided to wait for a preclearance determination by U.S. Department of Justice, rather than proceeding “to implement an interim plan or enter an injunction, as urged by the Plaintiffs.” Order at 4. When preclearance was granted, the district court dismissed the case as moot. Costs and fees for the court’s experts were assessed against the state; plaintiffs were not entitled to attorney’s fees.
Gustafson v. Johns, No. 05-00352-CG-C, 434 F. Supp.2d 1246 (S.D. Ala. May, 22, 2006) (three-judge court), aff’d No. 06-13508, 213 Fed.Appx. 872 (11th Cir. Jan. 9, 2007) (unpublished)
On June 16, 2005, plaintiffs challenged the Alabama House and Senate redistricting. The 19 voters alleged that the redistricting plans violated the one-person, one vote standard, were partisan gerrymanders, and violated plaintiffs’ First Amendment right to freedom of association. The district court held that res judicata barred the litigation as the present plaintiffs “were virtually represented by prior plaintiffs.” 434 F. Supp.2d at 1254. The decision includes a lengthy description of the various redistricting litigation commenced following the release of the 2000 census figures.
Gustafson v. Johns, No. 06-13508, 213 Fed.Appx. 872 (11th Cir. Jan. 9, 2007)
The first issue before the Eleventh Circuit was whether the appeal from the three-judge court was properly before it, or whether that appeal properly belonged in the United States Supreme Court. The Eleventh Circuit concluded that it had jurisdiction because “a finding that a plaintiff’s claim is barred by res judicata is not a resolution on the merits of the constitutional claim.” 231 Fed. Appx. at 875, relying on MTM, Inc. v. Baxley, 420 U.S. 799 (1975). The Eleventh Circuit affirmed the district court’s holding that res judicata barred the litigation on a theory labeled “virtual representation.”
Owens v. Jordan, No. CV-2002-1512 (Cir. Ct. Montgomery Co. Sep. 2006), aff’d No. 1060189 (Ala.)
Plaintiff contended that the redistricting plan for the Alabama State Senate that was enacted in 2001 was unconstitutional under state law. Specifically, she alleged that it violated Ala. Const. 1901 art. IX, § 200 because it split too many counties and did so unnecessarily. In a September 2006 Order, the Circuit Court held that Plaintiff’s claims were barred by res judicata because of Montiel v. Davis, 215 F. Supp.2d 1279 (S.D. Ala. 2002) (three-judge court), and Rice v. English, 835 So.2d 157 (Ala. 2002). The Court additionally found that the case was due to be dismissed for failure to actively prosecute.
Owens v. Jordan, No. 1060189 (Ala.)
On appeal, the Alabama Supreme Court affirmed without opinion.
11 South Union Street
State House, Room 811
Montgomery, AL 36130-4600
In re 2001 Redistricting Cases v. Redistricting Board, No. 3AN-01-8914CI (3rd Dist. Anchorage, Feb. 1, 2002)
A superior court judge found that two of the 40 House districts in the plan drawn by the Redistricting Board violated the state constitution, one because it was not compact and the other because it did not meet the constitutional requirement of article 6, § 6, that House districts contain “as nearly as practicable a relatively integrated socio-economic area.” Challenges to several other districts, brought by individuals, groups, and political subdivisions, the court found to be without merit. The court stayed its decision pending appeal to the Alaska Supreme Court.
In re 2001 Redistricting Cases, No. S-10504, 44 P.3d 141 (Alaska Mar. 21, 2002)
The Alaska Supreme Court vacated the superior court’s stay of its own decision and affirmed it with exceptions and remanded the case to the superior court with instructions to further remand it to the Redistricting Board to redraw certain districts, as detailed by the Supreme Court. The Court found that two house districts violated the compactness requirement of the Alaska Constitution. It found that two house districts violated the requirement of article 6, § 6, of the Alaska Constitution that districts be ““as nearly as practicable a relatively integrated socio-economic area.” It found that 16 house districts in Anchorage violated the equal-population requirements of the Alaska Constitution, even though their overall range was 9.5 percent, because the constitution had been amended in 1998 to make the state standard “as near as practicable” and thus more exacting than the federal standard. And it found that a deviation of 6.9 percent in one house district, which resulted in an overall range of 12 percent in the house districts statewide, could not be justified as necessary to avoid retrogression under § 5 of the Voting Rights Act.
In re 2001 Redistricting Cases, No. S-10615, 47 P.3d 1089 (Alaska May 24, 2002)
Following the Supreme Court of Alaska’s March 21 order directing the Redistricting Board to redraw certain districts, the Board did so. Its Amended Final Plan was approved by the superior court on May 9, 2002, and the judgment of the superior court was affirmed by the Supreme Court.
James L. Baldwin
Division of Legal & Research Services
State Capitol, Room 3
Juneau, AK 99801-1182
Navajo Nation v. Arizona Indep. Redistricting Comm’n, Order, No. CV 02-0799-PHX-ROS (D. Ariz. May 29, 2002), Opinion, 230 F. Supp.2d 998 (D. Ariz. Sept. 19, 2002)
A three-judge court ordered that the revised legislative plan certified by the Independent Redistricting Commission to the Secretary of State on May 28, 2002, be used on an emergency interim basis for the 2002 legislative elections only, with the members elected to serve for a full two-year term.
Arizona Minority Coalition for Fair Redistricting v. Arizona Indep. Redistricting Comm’n, No. CV 2002-004380, and Ricarte v. Arizona Indep. Redistricting Comm’n, No. CV 2002-004882 (Superior Court, Maricopa Co., Jan. 16, 2004), aff’d in part, rev’d in part, & remanded, No. 1CA-CV 04-0061 (Ariz. Ct. App. Oct. 21, 2005)
The complaint in Arizona Minority Coalition for Fair Redistricting alleged that the legislative plan adopted by the Independent Redistricting Commission on November 3, 2001, violated Ariz. Const. art. IV, part 2, § 1 (14) F., which requires that “To the extent practicable, competitive districts should be favored where to do so would create no significant detriment to the other goals.” It alleged that the plan decreased the number of competitive legislative districts from nine to six, even though other plans were presented to the Commission that maintained nine competitive districts. It requested that the Court enjoin use of the plan for the 2002 election and direct the Commission to adopt a plan with more competitive districts.
The complaint in Ricarte alleged that the congressional plan adopted by the Independent Redistricting Commission on November 3, 2001, violated Ariz. Const. art. IV, part 2, § 1 (14) F., which requires that “To the extent practicable, competitive districts should be favored where to do so would create no significant detriment to the other goals.” It alleged that the plan created only one competitive congressional district (defined as one with less than a seven percent advantage for one party, based on party voter registration), even though other plans were presented to the Commission that created more than one competitive district. It also alleged that the plan concentrated Hispanic voters into Congressional District 4 “far beyond the numbers necessary for Hispanic voters to be able to elect candidates of their choice and thereby preventing them from having a reasonable opportunity to influence elections in other districts.” It requested that the Court enjoin use of the plan for the 2002 election, direct the Commission to adopt a valid plan, and adopt a court plan for use until the Commission adopted a valid plan.
The 2002 election was run using a revised interim plan approved by the federal court in Navajo Nation v. Arizona Indep. Redistricting Comm’n, No. CV 02-0799-PHX-ROS (D. Ariz. May 29, 2002), described above. On August 14, 2002, the commission adopted its final legislative plan to govern the elections of 2004 and beyond.
On January 16, 2004, Superior Court Judge Kenneth Fields ruled that the legislative plan violated Article IV, part 2, § 1(14)(F) of the Arizona Constitution, which provides that, “To the extent practicable, competitive districts should be favored where to do so would create no significant detriment to the other goals.” The commission had considered and rejected a number of competing plans that complied with the other constitutional goals but were more competitive than the final plan adopted. The court also found that the plan violated Article IV, part 2, § 1(15), when it considered the residences of incumbents when evaluating competing plans. Finally, the plan violated Article II § 13 (equal privileges and immunities), because the commission failed to define essential constitutional terms, such as “significant detriment,” “communities of interest,” “extent practicable,” or “competitive districts,” and thus had not applied them in a uniform way when evaluating competing plans. The judge gave the Commission 45 days to develop a remedial plan.
Judge Fields upheld the congressional redistricting plan because the commission convinced the court that it could “not create any more competitive congressional districts without significant detriment to another constitutional goal, specifically the United States Voting Rights Act.”
On appeal, the Arizona Court of Appeals affirmed the portion of the trial court’s judgment upholding the congressional plan, but reversed the portion of its judgment that had invalidated the legislative plan. The Court of Appeals remanded the legislative plan to the trial court with instructions to review it using the rational basis standard, rather than applying strict scrutiny, for possible violations of the Equal Protection Clause.
Arizona Minority Coalition for Fair Redistricting v. Arizona Indep. Redistricting Comm’n, No. CA-CV 07-0301 (Ariz. Ct. App. Apr. 10, 2008)
On remand, the trial court again found that the Commission’s plan for legislative districts failed to give adequate attention to competitiveness. The Court of Appeals reversed the trial court’s finding. It pointed out that the role of the trial court was to determine whether the Commission’s action was supported by substantial evidence in the record, not whether it failed to create competitive districts. It noted that the Commission had “considered competitiveness and made a finding that a more competitive plan would cause a significant detriment to the other five constitutional goals” and “that the Commission’s findings were supported by substantial evidence.” The trial court’s findings on two other factors not at issue on remand were vacated by the Court of Appeals.
Michael E. Braun
Arizona Legislative Council
1700 West Washington, Suite 100
Phoenix, AZ 85007
Arizona Legislative Council
1700 West Washington, Suite 100
Phoenix, AZ 85007
No cases reported to this service.
Census State Data Center
Univ. of Arkansas-Little Rock
2801 South University
Little Rock, AR 72204
City of Los Angeles v. Evans, No. CV01-1671 (C.D. Cal., complaint dated Feb. 21, 2001)
The complaint alleged that Secretary of Commerce Donald Evans revoked the delegation of authority to the Director of the Census to make a final determination whether statistically adjusted figures should be released to the States and localities for redistricting purposes (by amending 15 C.F.R. Part 101) without allowing a period for notice and comment on the revocation, in violation of § 553 of the Administrative Procedures Act. The complaint requested a declaration that the revocation was invalid and an injunction against implementing it.
The complaint was dismissed on or about April 26, 2001.
Cano v. Davis, No. CV 01-08477 MMM (RCx) (C.D. Ca. June 12, 2002), aff’d 537 U.S. ____ (Jan. 13, 2003) (No. 02-577 ) (mem.)
Plaintiff Latino voters and advocacy groups challenged two congressional districts and one state senate district enacted September 27, 2001. They contended that the three districts violated the Voting Rights Act and the Equal Protection Clause of the Fourteenth Amendment. The court granted summary judgment for the defendants, saying that the Legislature had “permissibly exercised its broad discretion to draw new district lines.”
Darren P. Chesin
Senate Elections, Reapportionment & Constitutional Amendments Committee
State Capitol, Room 2203
Sacramento, CA 95814
Avalos v. Davidson, No. 01 CV 2897 (Dist. Ct. Denver Co. Jan. 25, 2002), aff’d sub nom. Beauprez v. Avalos, No. 02SC87, 42 P.3d 642 (Colo. Mar. 13, 2002) (en banc)
After the Colorado Legislature adjourned its 2001 regular session sine die without enacting a congressional redistricting plan, plaintiffs filed suit in state court alleging that the current plan of six districts was malapportioned, both because of shifts in the population since 1990 and because Colorado had been apportioned seven congressional seats as a result of the 2000 census. The complaint alleged that there would be inadequate time for the Legislature to enact a congressional plan at its next regular session, scheduled to convene January 9, 2002, and that no special session had been called by the Governor. The complaint requested the court to set a reasonable deadline for the Legislature to enact a valid plan and for the court to adopt a plan of its own if the Legislature failed to meet the deadline. When the Legislature failed to enact a plan early in its 2002 session, the Court adopted a plan submitted by plaintiffs, which was an amendment to the plan submitted by the Republican Leadership.
Martinez v. Matsunaka, No. 01-Z-1900 (D. Colo., amended complaint filed Oct. 12, 2001)
The amended complaint in federal court alleged that the defendant in the state court case, Secretary of State Davidson, was not the proper party defendant, since only the Governor and the General Assembly are responsible for redrawing the congressional districts. It alleged that the state suit was filed before the case was ripe and that the state court had held no hearings and issued no orders. It requested the federal court to stay proceedings in the state court, enjoin the use of the current congressional districts, and either order the Governor to call a special session of the General Assembly to enact a congressional redistricting plan or draw a plan itself.
In re Reapportionment of the Colorado General Assembly, No. 01SA386 (Colo. Jan. 28, 2002)
The Colorado Reapportionment Commission adopted a legislative plan on November 27, 2001, and submitted it to the Colorado Supreme Court for review, as mandated by the Constitution. The Supreme Court rejected the plan because it was not “sufficiently attentive to county boundaries” and was not accompanied by “an adequate factual showing that less drastic alternatives could not have satisfied the equal population requirement of the Colorado Constitution.” The Court remanded the plan to the commission to be redrawn.
In re Reapportionment of the Colorado General Assembly, No. 01SA386, 45 P.3d 1237 (Colo. Feb. 22, 2002)
The commission’s redrawn plan was submitted to the court on February 12, 2002, and approved on February 22.
Keller v. Davidson, No. 03 CV 3452 (Denver District Court filed May 9, 2003)
On May 9, 2003, the Colorado General Assembly enacted a new congressional redistricting plan, Senate Bill 03-352. Plaintiffs alleged in state court that the General Assembly had violated a variety of state laws regarding the procedure by which the lawmakers must introduce, read, debate, and pass bills. The case was removed to federal court.
Keller v. Davidson, No. 03-Z-1482 (CBS) (D. Colo. Sept. 25, 2003)
The federal district court deferred proceedings in the removed case pending the outcome of a suit brought by the Colorado Attorney General (People ex rel. Salazar v. Davidson, No. 03SA133) challenging the authority of the General Assembly to enact a congressional redistricting plan after an election had been held under the court-drawn plan.
People ex rel. Salazar v. Davidson, No. 03SA133 and Davidson v. Salazar, No. 03SA147, 79 P.3d 1221 (Colo. Dec. 1. 2003) (en banc), cert. denied, Colorado General Assembly v. Salazar, No. 03-1082, 541 U.S. 1093 (June 7, 2004)
The Colorado Attorney General brought an original proceeding in the Colorado Supreme Court to challenge the constitutionality of Senate Bill 03-352, a congressional redistricting law enacted by the General Assembly to replace the court-ordered congressional districts used in the 2002 general election. The Court held the new law unconstitutional because the Colorado Constitution, Article V, § 44, requires the General Assembly to redistrict after each census and before the ensuing general election, and does not allow redistricting at any other time. Because the General Assembly failed to redistrict during this constitutional window, it relinquished its authority to redistrict until after the 2010 census.
Keller v. Davidson, No. 03-Z-1482 (CBS), 299 F. Supp. 2d 1171 (D. Colo. Jan. 23, 2004)
After the Colorado Supreme Court ruled in Salazar that the Colorado General Assembly had lost its authority to enact a redistricting plan after the 2002 general election, the three-judge federal district court concluded that the defendants Secretary of State and General Assembly had fully litigated in state court their claim that Colorado’s prohibition on the General Assembly enacting a redistricting plan after the 2002 general election violated Article I, § 4 of the U.S. Constitution, which says that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . .” and that “issue preclusion” (the decision on an issue that was fully litigated in a previous case between the same parties is binding on those parties in a later case) would prevent them from asserting those same claims in federal court after the decision of the state court became final. It deferred further action on the various claims and counterclaims until the Colorado Supreme Court’s decision became final following review by the U.S. Supreme Court.
Colorado General Assembly v. Salazar, No. 03-1082, 541 U.S. 1093 (June 7, 2004)
On June 7, 2004, the U.S. Supreme Court declined to grant certiorari in Salazar. Chief Justice Rehnquist and Justices Scalia and Thomas dissented from the denial of certiorari on the ground that Article V, § 44 of the Colorado Constitution might be in conflict with Article I, § 4, of the U.S. Constitution.
Keller v. Davidson, No. 03-Z-1482 (CBS), 2004 WL 2359556 (D. Colo. Oct. 15, 2004)
After the U.S. Supreme Court denied certiorari in Salazar, the three-judge federal court dismissed the Keller suit.
Lance v. Davidson, 379 F. Supp.2d 1117 (D. Colo. July 27, 2005), vacated and remanded Lance v. Dennis, No. 05-555, 546 U.S. 459 (U.S. Feb. 21, 2006)
Three days after the Colorado Supreme Court's decision in Salazar, a new group of plaintiffs filed suit against Secretary of State Davidson. They asserted two constitutional claims: first, that Article V, § 44 of the Colorado Constitution, as interpreted in Salazar, violated Article I, § 4 of the U.S. Constitution by depriving the General Assembly of its responsibility to draw congressional districts (the Elections Clause claim); second, that it deprived them of their right to petition the government for redress of grievances under the First and Fourteenth Amendments to the U.S. Constitution (the Petition Clause claim). The same three-judge court had dismissed the Keller suit on the basis of “issue preclusion” (the decision on an issue that was fully litigated in a previous case between the same parties is binding on those parties in a later case) by the decision in Salazar. It dismissed the new suit’s Elections Clause claim on the basis of the Rooker-Feldman doctrine (the loser in a state court may not seek to overturn that decision in a federal court). The court found that the plaintiffs, as citizens of Colorado, were in privity with (represented by) their representatives in the Colorado General Assembly, who were among the plaintiffs in Salazar, and were therefore bound by the judgment in Salazar on the Elections Clause claim. The court dismissed the Petition Clause claim on the merits, saying that the inability of the General Assembly to redraw the congressional lines after 2002 did not deprive plaintiffs of their right to ask the General Assembly to do so, since the right to ask for redress is not necessarily a right to obtain redress.
Lance v. Dennis, No. 05-555 , 546 U.S. 459 (U.S. Feb. 21, 2006) (per curiam)
On appeal, the U.S. Supreme Court vacated the judgment of the three-judge district court and remanded the case for further proceedings. It noted that the reach of the Rooker-Feldman doctrine had been clarified the previous year as being quite narrow, see Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (March 30, 2005). It held that Rooker-Feldman did not apply to a non-party under the facts of this case, so it did not bar the plaintiffs’ Election Clause claim. It did not say whether issue preclusion might have been an appropriate rationale for the lower court’s decision. It did not rule on the Petition Clause claim.
Lance v. Dennis, 444 F. Supp. 2d, 1149 (2006)
On remand, the district court held that the citizen-plaintiffs had standing to bring their Elections Clause challenge, but that the suit was barred by issue preclusion because the plaintiffs “Stand in privity with the Secretary of State and the General Assembly,” who were on the losing side in the Salazar litigation.
Lance v. Coffman, No. 06-641 (U.S. Mar. 5, 2007) (per curiam)
On appeal, the U.S. Supreme Court affirmed the district court’s dismissal of the Petition Clause claim. It vacated the district court’s decision on the Elections Clause claim and remanded the case to the district court with instructions to dismiss the Elections Clause claim. The citizen-plaintiffs had only shown an “undifferentiated, generalized grievance about the conduct of government” that allegedly failed to follow the Elections Clause. This grievance was common to all members of the public. Plaintiffs had failed to show a “particularized stake in the litigation” that was peculiar to themselves. They thus lacked standing to bring their Elections Clause claim.
Jeremiah B. Barry
Division of Local Governments
Department of Local Affairs
1313 Sherman Street, Room 521
Denver, CO 80203
No cases reported to this service.
Office of Legislative Research
Office of Legislative Management
No cases reported to this service.
District of Columbia
No cases reported to this service.
In re Constitutionality of House Joint Resolution 1987, No. SC02-194, 817 So. 2d 819 (Fla. May 3, 2002)
In an original proceeding brought by the Attorney General as mandated by the Florida Constitution, the Court upheld the legislative redistricting plan adopted March 22, 2002.
Brown v. Butterworth, No. ___________ (Fla. Cir. Ct. Broward Co. June 17, 2002)
State circuit court Judge Robert Lance Andrews ruled that only a federal court has jurisdiction to decide whether the new congressional districts enacted into law are constitutional.
Martinez v. Bush, No. 02-20244-CIV-JORDAN (S.D. Fla. July 9, 2002)
A three-judge panel upheld the congressional and state House plans against alleged Section 2 violations. The court approved a temporary adjustment for the 2002 elections for the state House plan to resolve a Section 5 objection raised by the Department of Justice with regard to Hispanic voters in House District 101. The plan adjustment was proposed by the Speaker of the Florida House of Representatives and affected only three of the 120 House districts. Although the adjustment was presented by the Speaker, the court determined that it was not a “legislative” plan and therefore not subject to preclearance. The adjustment will not affect the 2004-2010 elections unless enacted by the Legislature.
Martinez v. Bush, 234 F. Supp.2d 1275 (S.D. Fla. Dec.3, 2002)
A three-judge panel upheld the congressional and state Senate and House plans against alleged violations of the Equal Protection Clause, the Civil Rights Act of 1964, and § 2 of the Voting Rights Act of 1965 and rejected a challenge that the congressional plan was a partisan political gerrymander in violation of the Equal Protection Clause of the Fourteenth Amendment.
House of Representatives
Office of Reapportionment
327 The Capitol
Tallahassee, FL 32399
Georgia v. Ashcroft, No. 01-2111, 195 F.Supp.2d 25 (D. D.C. Apr. 5, 2002), aff’d sub nom. King v. Georgia, 537 U.S. ____ (Jan. 13, 2003) (No. 02-125) (mem.) (denying motion to intervene), rev’d No. 02-182 (U.S. June 26, 2003) (denial of preclearance of Senate plan)
The State of Georgia sought preclearance of its legislative and congressional plans, as required by § 5 of the Voting Rights Act of 1965, by bringing a declaratory judgment action in district court for the District of Columbia.. The court granted preclearance of the congressional plan and the plan for the state House of Representatives, but denied preclearance of the Senate plan.
Georgia v. Ashcroft, 204 F.Supp.2d 4 (D. D.C. June 3, 2002) aff’d sub nom. King v. Georgia, 537 U.S. 1100 (Jan. 13, 2003) (No. 02-425) (mem.) (denying motion to intervene)
Georgia enacted a revised Senate plan, Act No. 444, on April 11, 2002, and presented it to the court for preclearance, which was granted.
Georgia v. Ashcroft, No. 02-182, 539 U.S. 461 (U.S. June 26, 2003)
On appeal of the district court’s denial of preclearance of the Senate plan, the Supreme Court vacated the judgment and remanded the case to the district court for further proceedings consistent with the opinion expressed by Justice O’Connor, on behalf of herself and Justices Rehnquist, Scalia, Kennedy, and Thomas. Justice O’Connor said the district court had erred in focusing too narrowly on a decline in black voting age population in three districts. Rather, the district court should have evaluated the statewide plan as a whole. It should have looked at the increases in black voting age population in other districts and tried to determine whether the increases were sufficient to offset the declines. Further, the district court should have looked beyond the plan’s effect on the ability of minority voters to elect a candidate of their choice and evaluated its effect on their ability to participate in the political process, such as by forming coalitions with other groups to elect a candidate or by having sufficient voting strength to influence the election of a candidate. The State had a legitimate choice to make in deciding whether it was better to adopt a plan with a certain number of “safe” majority-minority districts or a plan with fewer safe districts but more where the minority had an opportunity to elect a representative of their choice. The district court also should have considered the impact of the new plan on the incumbents elected from the benchmark majority-minority districts, whether it would adversely affect their legislative leadership, influence, and power. Finally, the district court should have considered the support of the plan by incumbents elected from the benchmark majority-minority districts as evidence of a lack of retrogressive effect. Justice O’Connor noted that, in comparing the new plan to the benchmark plan, it was relevant to examine the benchmark plan both using the new 2000 census figures and using the old 1990 census figures, since the old figures were in effect at the time the benchmark plan was enacted.
Larios v. Cox, No. 1:03-CV-693-CAP, 300 F. Supp.2d 1320 (N.D. Ga. Feb. 10, 2004), aff’d 542 U.S. 947 (June 30, 2004) ( No. 03-1413) (mem.)
Plaintiffs challenged the 2001 congressional and House plans and the 2001 and 2002 Senate plans enacted by the Georgia General Assembly on various grounds. A three-judge federal district court upheld the congressional plan but struck down the legislative plans as a violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The order regarding the 2001 Senate plan was stayed pending preclearance of the plan. The overall range of both the 2001 House plan and the 2002 Senate plan was 9.98 percent, but the court found that the General Assembly had systematically underpopulated districts in rural south Georgia and inner-city Atlanta and overpopulated districts in the suburban areas north, east, and west of Atlanta in order to favor Democratic candidates and disfavor Republican candidates. The plans also systematically paired Republican incumbents while reducing the number of Democratic incumbents who were paired. The plans tended to ignore the traditional districting principles used in Georgia in previous decades, such as keeping districts compact, not allowing the use of point contiguity, keeping counties whole, and preserving the cores of prior districts.
The court set a deadline of March 1, 2004, for the General Assembly to submit new plans to the court.
Larios v. Cox, 305 F. Supp.2d 1335 (Feb. 20, 2004)
The State’s request for a stay of the judgment pending appeal to the U.S. Supreme Court was denied.
Larios v. Cox, 306 F. Supp.2d 1212 (Mar. 1, 2004)
When the General Assembly failed to enact new plans by the March 1, 2004, deadline, the three-judge court appointed a Special Master to draw them.
Larios v. Cox, 306 F. Supp.2d 1214 (Mar. 2, 2004)
The court directed the Special Master to comply with the U.S. Constitution and §§ 2 and 5 of the Voting Rights Act, and “to apply Georgia’s traditional redistricting principles of compactness, contiguity, minimizing the splits of counties, municipalities, and precincts, and recognizing communities of interest,” but that protecting incumbents had no place in a plan formulated by a court. The court directed the Special Master to create only single-member districts in the Senate plan and to preserve the multi-member districts in the enjoined House plan only “where the multi-member districts are not tainted by the factors which rendered the previous plans unconstitutional, and only so long as their inclusion does not undermine the other guidelines we have already enumerated.” The court prohibited the Special Master and his experts and assistants from reviewing or analyzing political data.
Larios v. Cox, No. 1:03-CV-693-CAP (N.D. Ga. Mar. 15, 2004)
On March 15, 2004, the Special Master submitted his report and recommendation for two new plans: a Senate plan with an overall range of 1.91 percent and a House plan with an overall range of 1.95 percent, with the deviations randomly scattered across the state. The Special Master reported that his recommended plan had a number of majority-minority districts roughly proportional to minority voters’ share of the voting-age population and more than in the benchmark plans. He reported that the districts were more compact than in the enjoined plans, made less use of water contiguity and touch-point contiguity, and split fewer counties than the enjoined plans. The multi-member House districts in the enjoined plan were all replaced by single-member districts.
Larios v. Cox, 314 F. Supp.2d 1357, 2004 WL 867768 (N.D. Ga. Apr. 15, 2004)
The three-judge court approved the plan drawn by the Special Master, finding that it met the one person, one vote requirement of the Equal Protection Clause, it met the minority protection requirements of the Voting Rights Act, and it was faithful to Georgia’s traditional redistricting principles.
Kidd v. Cox, No. 1:06-CV-0997-BBM, 2006 WL 1341302, 2006 U.S. Dist. LEXIS 29689 (N.D. Ga. May 16, 2006) (three-judge court).
The three-judge court dismissed a one person, one vote claim against three of Senate districts, holding that “population deviations of less than ten percent ‘are presumptively constitutional, and the burden lies on the plaintiffs to rebut that presumption’” quoting Larios v. Cox, No. 1:03-CV-693-CAP, slip op. at 48, 300 F. Supp. 2d at 1341, and ruling that even though the plaintiffs’ assertions that a plan with a lower than ten percent deviation was not consistent with the State’s legitimate interests and that alternative plans with less deviation better accomplished those interests had merit, the assertions did not overcome the presumption of constitutionality. It also dismissed an equal protection claim of partisan gerrymandering as nonjusticiable. The court relied on the lack of any manageable standard for determining constitutionality. The court also addressed a separate claim that the partisan gerrymandering had violated the First Amendment rights of the plaintiffs to free political expression. This claim was based on the argument that the gerrymander had the effect of burdening the plaintiffs’ representational right to elect a candidate of their choice because of their political views and affiliation. The court held there was no First Amendment violation because plaintiffs’ right to political expression had not been burdened.
Sewell R. Brumby
Office of Legislative Counsel
316 State Capitol
Atlanta, GA 30334
No cases reported to this service.
Smith v. Idaho Commission on Redistricting, 2001 Op. No. 95, 136 Idaho 542, 38 P.3d 121 (Idaho Nov. 29, 2001)
Following adoption of a legislative redistricting plan by the Idaho Commission on Redistricting, petitioners invoked the original jurisdiction of the Idaho Supreme Court seeking to enjoin implementation of the plan on the ground that it violated the Idaho Code and common law because it impermissibly divided counties to create districts, separated communities with common interests into separate districts, created districts with too large a population disparity, and was enacted without following appropriate procedures. The Court found that the plan violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, since its overall range was 10.69 percent and the State had offered no evidence that the population disparity resulted from the advancement of a rational state policy. The Court remanded the plan to the Commission for further consideration.
Bingham County v. Comm’n for Reapportionment, 2002 Opinion No. 30, 137 Idaho 870, 55 P.3d 863 (Idaho Mar. 1, 2002)
On remand, the Commission adopted a new plan, L91, on January 8, 2002. The plan had an overall range of 11.79 percent and detailed Findings and Conclusions. The Court found that the rational state policies used by the commission—preserving whole counties and preserving traditional neighborhoods and communities of interest—were not applied consistently statewide. It also found that the plan violated the Idaho Constitution by dividing counties more than was necessary to meet equal-population requirements. Following the statutory policy of preserving traditional neighborhoods and communities did not justify violating the constitutional prohibition against splitting counties. The Court directed the Commission to reconvene and adopt a new legislative plan.
Bonneville County v. Ysursa, 2005 Opinion No. 138, 142 Idaho 464, 129 P.3d 1213 (Idaho Dec. 28, 2005)
In March 2002, the Commission adopted plan L 97. The plan had a “maximum deviation” (overall range) of 9.71 percent. Various counties, voters, and state representatives challenged the plan as a violation of both the federal one person, one vote requirement and state constitutional and statutory requirements for the district-drawing process. The Supreme Court appointed a special master to develop a factual record. The special master submitted his report in September 2004. In December 2005, the Court rejected all challenges. It found that the underpopulation of districts in “north” Idaho did not discriminate against voters in not-“north” Idaho, since the population deviations were within tolerable limits and there was no evidence of an intent to discriminate against not-“north” Idaho. It found that the Commission had not abused its discretion in deciding which counties to split and in what ways in order to meet equal-population requirements.
PO Box 83720
Boise, ID 83720-0054
Hastert v. State Board of Elections, No. 91 C 4028 (N.D. Ill. Aug. 20, 2001)
On June 1, 2001, the day after Illinois Governor George Ryan signed into law a new congressional redistricting plan based on the 2000 census, Public Act 92-0004, House Speaker Dennis Hastert and two other Republican House members petitioned the federal court in their 1991 case to approve the new map for use in the 2002 elections. On July 10, 2001, the court granted a motion by Congressman David Phelps to appear in opposition to the Hastert motion. Congressman Phelps then moved that the case be dismissed because the enactment of the new plan had deprived the court of jurisdiction over the subject matter. The court denied the motion to dismiss.
Phelps v. State Board of Elections, No. 01-MR-15 (1st Cir. Saline Co., complaint filed June 4, 2001)
Congressman David Phelps and others alleged that Public Act 92-0004, enacted May 31, 2001, which redrew the State’s congressional districts to accommodate the reduction of the State’s congressional delegation from 20 seats to 19, violated the Illinois Constitution. Specifically, that it violated the Due Process and Equal Protection clauses of Article I, § 2, and that it violated the requirement of Article IV, § 3(a), that “Legislative Districts shall be compact, contiguous and substantially equal in population.” The complaint also alleged that the plan was the product of “political gerrymandering” and/or “collusive bipartisan gerrymandering” and that it failed to preserve communities of interest. The complaint sought a declaration that the law is invalid and an injunction against its use.
Alexander v. Ryan, No. 92002 (Ill. Aug. 22, 2001), reconsid. denied (Ill. Sep. 5, 2001)
Plaintiffs’ motion for leave to file an original action in the Illinois Supreme Court was denied.
Barnow v. Ryan, No. 01 C 6566 (N.D. Ill. Sep. 17, 2001)
Plaintiff challenged in state court the tie-breaker provision for appointing the ninth member of the Legislative Redistricting Commission under the Illinois Constitution. Defendants Attorney General, Secretary of State, certain members of the Legislative Redistricting Commission, and certain members of the State Board of Elections filed a notice removing the case to federal court. Plaintiff moved to remand the case to state court, arguing the Attorney General did not have the consent of all defendants for the removal and that the constitutionality of the tie-breaker provision should be decided by the state court. A three-judge federal court denied the motion.
Currie v. Ryan, No. 92341 (Ill. Sep. 19, 2001)
Petitioners’ motion for leave to file an original writ of mandamus in the Illinois Supreme Court was denied.
Legislative Redistricting Comm’n v. White, No. 92454 (Ill. Oct. 23, 2001)
Plaintiffs’ motion for leave to file a complaint for declaratory relief was denied.
Winters v. Board of Elections, No. 01 C 50229, and Barnow v. Ryan, No. 01 C 6566 (N.D. Ill. Nov. 20, 2001), aff’d 535 U.S. 967 (Apr. 1, 2002) (No. 01-1114) (mem.)
Plaintiffs challenged the tie-breaker provision for appointing the ninth member of the Legislative Redistricting Commission under the Illinois Constitution. The court upheld the tie-breaker provision as being a reasonable attempt to encourage the members of the commission to compromise and agree on a plan, since failure to agree would mean a tie-breaker would be appointed to the commission by a random drawing and neither party could be sure its member would be chosen. The court noted that the provision had not actually worked as intended: each decade the members of the commission had chosen to deadlock and take a chance on the tie-breaker, rather than compromise to agree on a plan. Nevertheless, the court found the framers of the 1970 constitutional amendment that added the tie-breaker provision had a rational basis for doing so.
Cole-Randazzo v. Ryan, No. 92443 (Ill. Nov. 28, 2001)
Plaintiffs alleged that the redistricting plan adopted by the Illinois Legislative Redistricting Commission was not as compact as it might have been. The court rejected the challenge, saying that the plaintiffs had failed to carry their burden of showing that the plan adopted by the commission was against the manifest weight of the evidence.
Beaubien v. Ryan, No. 92701 (Ill. Dec. 27, 2001)
Plaintiffs alleged that the redistricting plan adopted by the Illinois Legislative Redistricting Commission was not as compact as it might have been. The court rejected the challenge, saying that the plaintiffs had failed to carry their burden of showing that the plan adopted by the commission was not “reasonably compact.”
Campuzano v. Board of Elections, No. 01 C 50376, 200 F. Supp.2d (N.D. Ill. May 3, 2002)
The complaint alleged that the legislative redistricting plan drawn by the Illinois Legislative Commission on Redistricting violated §2 of the Voting Rights Act by failing to draw a sufficient number of Senate and House districts in which the candidate elected would be the choice of either African-American or Latino voters. During the trial, at the close of plaintiffs’ case, the court granted a motion by the League of United Latin American Citizens (“LULAC”) for a directed verdict against the claim with respect to Latino voters. With respect to African-American voters, plaintiffs argued that, in order to be an “effective” majority-minority district, the district must have at least a 60 percent minority voting-age population (“VAP”) or 65 percent minority total population, according to the “rule of thumb” articulated in Ketchum v. Byrne, 740 F.2d 1398, 1415-16 (7th Cir. 1984). The court observed that evaluating the districts based on total population was not appropriate when voting-age population statistics were available, and that use of the “rule of thumb” of 60 percent VAP was not appropriate when actual voting results from races within the districts were available. The expert witnesses for both plaintiffs and the intervenor-defendants disavowed the use of the “rule of thumb” and produced statistical analyses of related elections to show that the districts were not (or were) “effective” majority-minority districts. With credible statistical evidence to support the plan drawn by the commission, the court held that plaintiffs had failed to carry their burden of proving that the plan did not provide African-Americans effective opportunities to elect candidates of their choice.
Timothy D. Mapes
300 Capitol Building
Daniel W. White
State Board of Elections
No cases reported to this service.
Co-Manager/Office of Census Data
Legislative Services Agency
200 W. Washington Street, Suite 301
Indianapolis, IN 46204
Co-Manager/Office of Census Data
Legislative Services Agency
200 W. Washington Street, Suite 301
Indianapolis, IN 46204
No cases reported to this service.
In re Substitute for House Bill 2625, No. 88,735 (Kan. Apr. 26, 2002)
The Kansas Supreme Court, in a constitutionally mandated review, found the 2002 state House redistricting plan (2002 Substitute HB 2625) valid under both the United States and Kansas constitutions.
In re Substitute for Senate Bill 256, No. 88,821 (Kan. May 9, 2002)
The Kansas Supreme Court, in a constitutionally mandated review, found the 2002 state Senate redistricting plan (2002 Substitute SB 256) valid under both the United States and Kansas constitutions.
Graham v. Thornburgh, No. 02-4087-JAR (D. Kan. July 3, 2002)
The Kansas Attorney General filed a complaint in federal district court, styled as State ex rel. Stovall v. Thornburgh, alleging that the newly enacted Kansas congressional districts were unconstitutional. The complaint stated, among other things, that the legislatively enacted redistricting plan failed to take into consideration communities of interest as exemplified by placing Fort Riley and adjacent Junction City, Kansas in different congressional districts. The Attorney General proposed an alternative plan that would maintain two districts as enacted by the Legislature, and would alter two other districts to remedy the cited community division. It would reduce the overall range of the plan from 33 persons to 29 persons. A federal three-judge panel upheld the plan (H. Sub for SB 152). The court found that the Legislature’s judgments regarding communities of interest and other redistricting concerns were sufficient to justify the overall range of 33 persons (0.0049%). The court found that the Attorney General did not have standing to bring the case, so the case proceded with one of the intervenors substituted as plaintiff.
Room 010-East, State Capitol
Room 010-East, State Capitol
Legislative Research Department
Room 010-West, State Capitol
Topeka, KS 66612-1504
Assistant Director of Information Management
Topeka, KS 66612-1504
Bickel v. Board of Elections, No. 01-C1-1700 (48th Jud. Cir. Franklin Co., complaint filed Dec. 26, 2001)
The complaint alleged that the current legislative and congressional districts were out of population balance as shown by the 2000 census. It alleged that the General Assembly adjourned its 2001 session sine die without passing new plans, that the governor had not called a special session to address redistricting, and that it was unlikely the 2002 regular session would be able to pass new plans. It requested that the court enjoin further use of the current districts, delay the January 29, 2002, filing deadline, impose a deadline for the General Assembly to complete redistricting, draw plans if the General Assembly fails to meet the deadline, and impose a new deadline for candidates to file for office in the new districts.
On January 31, 2002, the Governor signed House Bill 1, which created new legislative and congressional districts.
House of Representatives v. Ashcroft, No. 1:02-CV-00062 (D. D.C., complaint filed Jan. __, 2002)
The complaint sought preclearance of the new House redistricting plan signed by the Governor on October 16, 2001. It alleged that the benchmark against which retrogression should be measured was either the 1982 plan or the “first” 1991 plan, which did not take effect because of the objection of the U.S. Attorney General under § 5 of the Voting Rights Act, which the complaint alleged went beyond the authority of the Attorney General as later defined in Reno v. Bossier Parish School Board. The complaint alleged that the 1991 plan was amended to add four more districts with African American majorities only because of the Attorney General’s objection, and that therefore, those four districts should not be counted when determining whether the 2001 plan retrogressed. It alleged that the existing plan had 26 districts where African Americans were a majority of the voting age population according to the 2000 census, and that the 2001 plan had the same number. It requested judicial preclearance of the plan and a declaratory judgment that the January 2001 Notice of Guidance resulted in an unlawful expansion of the scope of the Attorney General’s Section 5 review authority. The suit was settled in district court after the State accepted adjustments proposed by the Attorney General to 12 majority-minority districts and one majority district.
Alfred W. Speer
In re 2003 Apportionment of the State Senate and U. S. Congressional Districts, 2003 ME 86, 827 A.2d 844 (July 2, 2003), amended 2004 ME 55 (Apr. 22, 2004)
The Maine Constitution, art. IV, pt. 3, § 1-A, requires that redistricting plans for the Senate and House of Representatives be developed by a legislative apportionment commission and presented to the Legislature for its approval. The Legislature has 30 days after the plan is submitted to it to enact the plan or one of its own by a 2/3 vote. Me. Const. art. IV, pt. 1, § 3. If it fails to do so, a plan is drawn by the Supreme Judicial Court. By statute, the Apportionment Commission has also been given the responsibility to draw a congressional plan under the same terms. 21-A M.R.S. § 1206.
The 2003 Apportionment Commission submitted a plan for new congressional districts that failed to pass the Legislature, so the congressional plan was drawn by the Supreme Judicial Court. The court considered the plan submitted by the Commission as well as plans submitted by various other parties. It published a proposed plan of its own and held a hearing on it before adopting an amended congressional plan.
The Commission failed to agree on a plan for the Senate, so the Supreme Judicial Court adopted a senate plan using the same procedure as for the congressional plan.
The 2004 amendment corrected an error in the census maps used by the Legislature and the Court to reflect a previous transfer of an unpopulated census block from the Town of Falmouth, Senate District 11, to the City of Portland, Senate District 9.
In re 2003 Legislative Apportionment of the House of Representatives, 2003 ME 81 (July 2, 2003)
The Maine Constitution, art. IV, pt. 3, § 1-A, requires that redistricting plans for the Senate and House of Representatives be developed by a legislative apportionment commission and presented to the Legislature for its approval. The Legislature has 30 days after the plan is submitted to it to enact the plan or one of its own by a 2/3 vote. Me. Const. art. IV, pt. 1, § 3. If it fails to do so, a plan is drawn by the Supreme Judicial Court. By statute, the Apportionment Commission has also been given the responsibility to draw a congressional plan under the same terms. 21-A M.R.S. § 1206.
The House of Representatives plan submitted by the Commission was passed by the Senate and the House by the required 2/3 vote and signed by the Governor, becoming P.L. 2003, ch. 44. Various parties challenged certain districts for failing to satisfy the compactness and contiguity requirements mandated by the Maine Constitution. The court rejected the challenges.
In the Matter of Legislative Districting of the State, Misc. No. 19, September Term 2001 (Md. App. Mar. 1, 2002)
Under Article III, § 5 of the Maryland Constitution, the Governor’s redistricting plan, introduced as House Joint Resolution No. 3 and Senate Joint Resolution No. 3, became effective on February 22, 2002. The Court’s order set forth a procedure for parties to file challenges to the plan by March 18 and for those challenges to be considered by a Special Master, whose report and exceptions to it would be heard by the Court on June 10. The deadline for establishing residency in a district was extended from May 5 to July 1 and the filing deadline was extended from July 1 to July 8. The state primary would be September 10, 2002.
Petition of Golden, Misc. No. 19, September Term 2001 (Md. App., complaint filed Mar. 4, 2002)
Challenged districts in eastern Baltimore County, claiming that the plan failed to pay due regard to natural boundaries and subdivision boundaries, and that the districts were not compact or contiguous.
Curry - Misc. No. 20 - Equal Protection and Voting Rights Act claims under federal law and an equal protection claim under the Maryland Constitution, based on the alleged failure of the State to create as many African American and Latino majority districts as warranted in Prince George’s County and Montgomery County. The petition also alleged that the plan failed to give due regard to natural boundaries and the boundaries of political subdivisions, in violation of the Maryland Constitution. It requested the court to establish new districts in accordance with a plan submitted by the plaintiffs.
Stoltzfus - Misc. No. 24 - Raised issues of compactness and political subdivision boundaries with respect to the lower Eastern Shore.
Stone - Misc. No. 25 - Raised compactness, contiguity, due regard for political subdivision and natural boundaries with respect to the crossing of the Patapsco in the 44th and 31st districts. Also raised one-person, one-vote issues.
Wallace - Misc. No. 26 - Challenge to the inclusion of the town of Owings in 27A rather than 27B raising claims of racial gerrymandering, and lack of compactness. Also challenged the alteration of the resident delegate rule.
Brayman - Misc. No. 27 - Challenge to the splitting of College Park alleging lack of due regard for political subdivision and natural boundaries as well as a lack of compactness and contiguity.
Gandel - Misc. No. 28 - Challenge to the 18th and 20th districts in Montgomery County as noncompact and failing to give due regard to unspecified natural boundaries. Also raised a population equality claim with respect to the 20th.
Steele - Misc. No. 29 - The Republican party challenge. Raised population equality, voting rights, Fifteenth Amendment, partisan gerrymandering, and the First Amendment.
Dembrow - Misc. No. 30 - Challenge to Districts 20 and 14 for lack of compactness and lack of due regard for natural boundaries. Also raised a Voting Rights Act claim based in Montgomery County.
DeHaas - Misc. No. 31 - Challenge to the inclusion of precincts from Anne Arundel County in a district that was predominantly Prince George's County on the ground that it failed to give due regard to political subdivision and natural boundaries.
Smallwood - Misc. No. 32 - Challenged the inclusion of Maryland City in a district otherwise dominated by Howard County as violative of the requirement that the plan give due regard to political subdivisions and also of equal protection.
Cole - Misc. No. 33 - Raised political subdivision and natural boundaries, compactness and adjoining territory claims as well as one-person, one-vote, focusing on the Eastern Shore but including the plan as a whole.
Getty - Misc. No. 34 - General claims of lack of due regard for subdivision boundaries especially in the 27th district and in Dundalk.
The Special Master issued his report on May 21, 2002.
In the Matter of Legislative Redistricting of the State, Misc. Nos. 19, 20, 22, 23, 24, 25, 26, 27, 28.29, 30, 31, 32, 33, 34, September Term 2001 (Md. App. Aug. 26, 2002)
The report of the Special Master had recommended that the petition in Misc. No. 24 be granted and that Districts 37 and 38 be redrawn in conformance with the petition, but that all other petitions be denied. The Maryland Court of Appeals found "significant portions" of the legislative plan to be in violation of the Maryland Constitution, for reasons to be set forth in a later opinion, and ordered the parties to submit by 4:00 p.m. on June 13, 2002, the names of proposed technical consultants to help the court in drawing a constitutional plan. In its order of June 17, 2002, the court appointed Nathaniel A. Persily and Karl S. Aro as its technical consultants. By its order of June 21, 2002, amended June 25, 2002, the court adopted its new plan.
On August 26, 2002, the court issued its opinion explaining the June 25 order. The court found that the State’s plan, by drawing district boundaries based on the rational goals of avoiding the loss of experienced legislators and reducing incumbent contests, violated the state constitutional requirement that it be drawn giving due regard to natural boundaries and the boundaries of political subdivisions. The court’s plan reduced the number of districts that crossed county or city boundaries, while keeping the overall range of population deviations below ten percent.
Mitchell v. Glendening, No. WMN 02 CV 602 (D. Md. July 8, 2002)
The court dismissed a Voting Rights Act claim against the legislative plan in federal district court based on the elimination of the 44th District in Baltimore City, on the ground that the redrawing of the boundaries of District 44 by the Maryland Court of Appeals rendered the case moot.
Duckworth v. Board of Elections, No. AMD 02-2064 (D. Md. Aug. 5, 2002)
The complaint by the Clerk of the Anne Arundel County Circuit Court challenged the new congressional redistricting plan enacted as Laws 2002, ch. 340. The complaint alluded to an equal population claim but did not state it, accused the plan of failing to comply with standards set forth by the Advisory Committee formed to draw the plan adopted in the early 1990's, attempted to state a cause of action based on the fact that Anne Arundel County was located in more than one district, and claimed partisan gerrymandering. It requested the court to postpone the 2002 elections until the plan was remedied. A single judge found the complaint to be “insufficient and . . . beyond rehabilitation,” and that it failed to assert any substantial federal constitutional claim. The court denied plaintiff’s request to convene a three-judge court and dismissed the complaint with prejudice.
Duckworth v. Board of Election Laws, No. 02-1936 (4th Cir. June 19, 2003)
On appeal, a three-judge panel of the Fourth Circuit affirmed the judgment of the district court dismissing the complaint, though for different reasons. The district court had observed that “37 of the 40 numbered paragraphs in the first amended complaint in the case at bar contain allegations and arguments taken verbatim from the complaint filed in 1991 in Anne Arundel County Republican Central Committee,” 781 F. Supp. 394 (D. Md. 1991), wherein plaintiff’s attorney had challenged the 1991 congressional plan. Since the 1991 complaint had been rejected, and the 2002 complaint did not allege any changed circumstances between the old plan and the new, the district court had dismissed the 2002 complaint for failure to state a claim on which relief could be granted. The Fourth Circuit rejected this shortcut and, examining the complaint on its merits, found it did not contain any factual allegations of politically discriminatory effect, as required by Davis v. Bandemer, 478 U.S. 109 (1986), and thus failed to state a claim.
Kimble v. Willis, No. AMD 02-2984 (D.Md. Nov. 21, 2002), aff’d sub nom. Kimble v. Board of Elections, No. 04-1874 (4th Cir. Feb. 1, 2005)
Plaintiff alleged that he had repeatedly been unsuccessful as a candidate for election to the Fourth Congressional District as a result of the manner in which state officials had crafted that district. The “prolix” pro se complaint was dismissed on October 28, 2002, with leave to file an amended complaint setting forth “a short and plain statement of his claim for racial gerrymandering.” The amended complaint was likewise dismissed, the court finding that plaintiff had “grievously failed” to comply with the court’s previous order.
Senior Policy Analyst
Dept. of Legislative Services
Mayor of Cambridge v. Secretary of the Commonwealth, No. SJC-08716, 436 Mass. 476, 765 N.E.2d 749 (Apr. 8, 2002)
Plaintiffs challenged the 2001 plan for the House of Representatives because it divided the City of Cambridge into six representative districts when it could have been divided into fewer districts and still met constitutional requirements. The Supreme Judicial Court rejected the challenge. It said the Legislature need not adopt the best plan. Rather, the Legislature must make a reasonable attempt to conform to, and must not violate, the criteria laid out by federal and state law. Dividing the city into more than the minimum number of districts was justified as an attempt to preserve an effective majority-minority district and avoid a challenge to the plan under the Voting Rights Act.
Camacho v. Finneran, No. 2002-10428-DPW (complaint filed Mar. 12, 2002) (Voting Rights Act challenge to House plan)
McClure v. Secretary of the Commonwealth, No. SJC-08715, 436 Mass. 614, 766 N.E.2d 847 (Apr. 29, 2002), cert. denied sub nom. McClure v. Galvin, No. 02-532 (U.S. Nov. 18, 2002)
Plaintiffs challenged the 2001 plan for the House of Representatives because it divided the Town of Chelmsford into four representative districts when it could have been divided into fewer districts and still met constitutional requirements. They proposed a plan that divided the town into only two districts, but with slightly larger population deviations than the enacted plan. They also claimed the plan constituted unconstitutional partisan gerrymandering in violation of the Fourteenth Amendment to the U.S. Constitution. The Supreme Judicial Court rejected the challenges. It said “the Legislature reasonably could have concluded that it was preferable to seek a closer approximation of population equality in the districts in the Chelmsford area . . . at the expense of dividing the town among four districts.” It said the plaintiffs had offered no evidence to show that the Legislature’s plan was “a purposeful, concerted effort to disfavor a political party through the redistricting process” and that they had “not demonstrated that the division of Chelmsford will result in a diminished Republican influence in either the relevant districts or the House of Representatives as a whole.”
Black Political Task Force v. Galvin, No. 02-11190 (D. Mass. Feb. 24, 2004)
A three-judge district court held that the 2001 legislative redistricting plan with respect to 17 House districts in the Boston area violated § 2 of the Voting Rights Act of 1965 by discriminating against black voters. It found that African American voters were sufficiently numerous and geographically compact in the Boston area to comprise a majority of the voting age population in at least one more House district than provided for in the enacted plan, that African American voters were politically cohesive, and that whites voted sufficiently as a bloc to enable them to usually defeat the black-preferred candidates. In considering the totality of the circumstances it noted, among other things, the legislature’s actions to protect white incumbents at the expense of minority voting opportunities. Assuming that a white incumbent was retiring, a committee had drawn the 11th District with a population over two-thirds minority and touted the 11th District as one that “increased the chances of there being an additional minority House member from the City of Boston.” During floor debate, the incumbent let it be known that he planned to run for reelection and offered an amendment to give the 11th District a white majority. The amendment was adopted. (The incumbent subsequently was appointed the legislature’s sergeant-at-arms and decided not to seek reelection.)
The court enjoined the Commonwealth from using the 17 House districts for the 2004 election and gave the Massachusetts legislature six weeks to draw an acceptable plan.
Data Center Magager
Massachusetts State Data Center
University of Massachusetts Donahue Institute
100 Venture Way, Suite 9
Hadley, MA 01035-9462
LeRoux v. Secretary of State, No. 120338, 465 Mich. 594, 640 N.W.2d 849 (Mich. Mar. 25, 2002)
The Michigan Supreme Court upheld a congressional plan passed by the legislature in 2001, 2001 Mich. Pub. Acts 115, codified at Mich. Comp. Laws § 3.51. Plaintiffs had alleged that the Secretary of the Michigan Senate had violated the state constitution by making a technical correction after passage of the bill. The correction was to add two census tracts that had been accidentally left out of one district. The Court ruled that this was permissible under the state constitution. The challenge also claimed that the legislature violated guidelines it had adopted for redistricting. The Court found that the guidelines passed in 1999 were not binding on the Legislature’s 2001 redistricting.
O’Lear v. Miller, No. 01-72584-DT (E.D. Mich. May 24, 2002)
Plaintiff registered Michigan Democrats challenged the 2001 congressional redistricting plan on the ground that it was a partisan gerrymander that discriminated against Democrats. They alleged that Republicans were likely to win 10 of the 15 seats, in spite of the fact that Democratic congressional candidates had received 54.8 percent of the vote statewide in the 2000 election. They also alleged that the plan discriminated against African Americans by dispersing their populations among Republican districts. Plaintiffs did not allege that Republican candidates would be indifferent to the interests of Democratic constituents nor that Democrats were completely shut out of the political process; therefore, the court found that they had failed to state an equal protection claim on which relief could be granted. The court granted plaintiffs 30 days to amend their complaint to state a claim on which relief could be granted.
O’Lear v. Miller, No. 01-72584-DT (E.D. Mich. June 6, 2002)
Plaintiffs’ amended complaint was dismissed, the court noting that “The pleading itself concedes that a political solution to their redistricting complaint is within reach by the next decade, or such other time as redistricting may lawfully occur at the direction of the state Legislature.”
Senate Democratic Office
Capitol Building-Ofc of Senate Minority Leader
Lansing, MI 48913
Zachman v. Kiffmeyer, No. CX-01-116 (10th Dist. Wright Co., complaint served Jan. 4, 2001)
The complaint alleged that legislative districts ordered by a state court in 1991, and congressional districts drawn by the state court in 1992, are out of population balance based on 1999 estimates by the State Demographer and 2000 census counts released December 28, 2000, and that the Legislature had failed and would fail to redraw them. It demanded an injunction against use of the old plans for the 2002 election and that the court draw new plans if the Legislature failed.
Cotlow v. Kiffmeyer, No. C8-91-985 (Minn. Spec. Redis. Panel, motion served Jan. 12, 2001)
The motion asserted that the legislative districts approved by the court, and congressional districts drawn by the court, in 1992 were out of population balance. It moved the court to modify its previous orders and declare that the old plans may no longer be used and to notify the Legislature that the court would draw new plans unless the Legislature adopted constitutional plans in a timely manner.
Cotlow v. Growe, No. C8-91-985 and Zachman v. Kiffmeyer, No. C0-01-160 (Minn. Mar. 2, 2001)
The Minnesota Supreme Court consolidated the two cases and found that the role of the three-judge special redistricting panel in Cotlow v. Growe was confined to cases based on the 1990 Census, a role that has ended. The Court will appoint a new special redistricting panel “to hear and decide the Zachman case and any other redistricting challenges that may be filed based on the 2000 Census.” In deference to the legislative process, the Court stayed appointment of the new panel until “it is determined that panel action must commence in order that the judicial branch can fulfill its proper role in assuring that valid redistricting plans are in place in time for the 2002 state legislative and congressional elections . . . .”
Zachman v. Kiffmeyer, No. C0-01-160 (Minn. Spec. Redis. Panel Mar. 19, 2002) (legislative) (congressional)
The Senate and House each passed different redistricting principles (S.F. No. 1326) and congressional and legislative redistricting plans (S.F. No. 2377) and sent them to conference committee during the 2001 regular session. The session adjourned May 21, 2001, without completing action on either principles or plans, but with legislators expressing their intent to work on both during the interim between sessions. Following adjournment, plaintiffs moved the Court for an order appointing a three-judge panel to draw plans and that the plans be adopted before January 1, 2002. The Legislature was scheduled to convene its next regular session January 29, 2002. On July 12, 2001, the Chief Justice of the Minnesota Supreme Court appointed a five-judge special redistricting panel and ordered them to release a redistricting plan “only in the event a legislative redistricting plan is not enacted in a timely manner.” On October 29, 2001, the panel issued a scheduling order setting November 13 as the deadline for parties to submit their proposed redistricting criteria, December 28 as the deadline for the parties to submit proposed plans, and March 19, 2002 (the statutory deadline for the Legislature to complete action on redistricting plans) as the date when the panel would issue plans of its own, if necessary. The panel’s order stating redistricting principles and requirements for plan submissions was issued December 11, 2001. Following the January 16, 2002, oral argument on the plans submitted by the parties, the court issued an order setting a schedule for public hearings on how citizens preferred their communities to be viewed during redistricting. On March 19, 2002, the panel issued its orders adopting a legislative redistricting plan and a congressional redistricting plan. Interactive maps and additional plan reports may be viewed on the Legislature’s redistricting Web site. In its order of October 16, 2002, the panel awarded attorney’s fees and costs to all four groups of plaintiffs, subject to a limit of $100,000 each for attorney’s fees and $4,500 each for costs and disbursements. See table for the amounts requested by and awarded to each.
McGuire v. Windschitl, No. C0-02-1352 (Minn. Aug. 28, 2002)
On August 8, 2002, petitioner filed an original petition in the Supreme Court under Minn. Stat. § 204B.44 alleging an error in the ballot for Senate District 26 on the ground that candidate Jeremy W. Eller had not resided in the district for six months preceding the general election as required by Minn. Const. art. IV, § 6. The Supreme Court appointed a referee, who issued findings on August 21, 2002, that Eller had in fact established residence. On August 28, 2002, the Supreme Court dismissed the petition.
Lundquist v. Leonard, No. C9-02-1351 (Minn. Oct. 17, 2002)
On August 8, 2002, petitioner filed an original petition in the Supreme Court under Minn. Stat. § 204B.44 alleging an error in the ballot for House District 38A on the ground that candidate Margaret J. Tilley had not resided in the district for six months preceding the general election as required by Minn. Const. art. IV, § 6. The Supreme Court appointed a referee, who issued findings on August 21, 2002, that Tilley had in fact established residence. On August 28, 2002, the Supreme Court issued its order dismissing the petition, followed on October 17, 2002, by its opinion.
Olson v. Zuehlke, No. C2-02-1353 (Minn. Oct. 17, 2002)
On August 9, 2002, petitioner filed an original petition in the Supreme Court under Minn. Stat. § 204B.44 alleging an error in the ballot for House District 3B on the ground that candidate Loren Solberg had not resided in the district for six months preceding the general election as required by Minn. Const. art. IV, § 6. The Supreme Court appointed a referee, who issued findings on August 21, 2002, that Solberg had in fact established residence. On August 28, 2002, the Supreme Court issued its order dismissing the petition, followed on October 17, 2002, by its opinion.
Piepho v. Bruns, No. C4-02-1354 (Minn. Oct. 17, 2002)
On August 9, 2002, petitioner filed an original petition in the Supreme Court under Minn. Stat. § 204B.44 alleging an error in the ballot for Senate District 23 on the ground that candidate John C. Hottinger had not resided in the district for six months preceding the general election as required by Minn. Const. art. IV, § 6. The Supreme Court appointed a referee, who issued findings on August 21, 2002, that Hottinger had in fact established residence. On August 28, 2002, the Supreme Court issued its order dismissing the petition, followed on October 17, 2002, by its opinion.
Peter S. Wattson
Senate Counsel, Research & Fiscal Analysis
St. Paul, MN 55155
Branch v. Clark, No. G-2001-1777 (Chancery Court of Hinds Co., complaint filed Oct. 5, 2001), appeal filed sub nom. Mauldin v. Branch, No. 2002-TS-00146 (Miss. Jan. 25, 2002), rev’d sub nom. Mauldin v. Branch, No. 2002-CA-00146, 866 So.2d 429 (Miss. Dec. 18, 2003)
The complaint alleged deadlock in the Legislature and asked the state court to draw a congressional plan. On December 21, 2001, the court adopted a plan (color version) as submitted by the plaintiffs. On December 26, 2001, the State’s attorney general submitted the plan to the Department of Justice for preclearance, requesting expedited consideration and preclearance by January 31, 2002. On February 14, 2002, the Department of Justice, by a letter to the State’s attorney general, requested more information from the State about the operation of the chancery courts and the jurisdiction of a single judge to create and implement a statewide redistricting plan. On the same date, the Department of Justice also requested the Mississippi Supreme Court to expedite its review of the plan adopted by the chancery court, so that “issues inherent to state-level governance [could] first be resolved by state authorities.”
In re Mauldin, No. 2001-M-01891 (Dec. 13, 2001), rev’d sub nom. Mauldin v. Branch, No. 2002-CA-00146, 866 So.2d 429 (Miss. Dec. 18, 2003)
The Mississippi Supreme Court held that the Chancery Court had jurisdiction to issue a congressional redistricting plan.
Smith v. Clark, No. 3:01-CV-855WS, 189 F. Supp.2d 503 (S.D. Miss. Jan. 15, 2002)
The three-judge federal court concluded that, because of the need to have the plan drawn by the state court precleared by the Justice Department before it could become effective, it “appears to be uncertain that the State authorities will have a redistricting plan in place by March 1," and therefore decided to begin drawing their own congressional redistricting plan.
Smith v. Clark, No. 3:01-CV-855WS, 189 F. Supp. 2d 512 (S.D. Miss. Feb. 4, 2002)
On February 4, 2002, the federal court adopted a plan, which it proposed to implement “absent the timely preclearance of the redistricting plan adopted by the State Chancery Court, which is now pending for preclearance before the United States Attorney General.”
Smith v. Clark, No. 3:01-CV-855WS, 189 F. Supp. 2d 548 (S.D. Miss. Feb. 26, 2002), aff’d sub nom. Branch v. Smith, 538 U.S. 254 (Mar. 31, 2003)
On February 26, 2002, the federal court enjoined the State from implementing the congressional plan adopted in Branch v. Clark on December 21, 2001, even if the plan were precleared, because the state court’s assertion of jurisdiction to adopt the plan violated Article I, Section 4, of the U.S. Constitution, which says that “The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof.” The Court distinguished Growe v. Emison and cases from California, New York, Texas, and New Jersey, where state courts had drawn or modified congressional plans, on the ground that in none of those cases had the state court’s jurisdiction been challenged on the basis of Article I, Section 4. The federal district court conceded that the Mississippi Supreme Court had found that the state chancery court did have jurisdiction in this case, but reached its own conclusion that the Mississippi Supreme Court’s decision was not supported by Mississippi law. The Court ordered the State to conduct elections based on the plan adopted by the federal court February 4, 2002. The order left open the possibility that the Legislature might enact a congressional plan at some future date.
Branch v. Smith, No. 01-1437, 538 U.S. 254 (Mar. 31, 2003)
Justice Scalia, writing for a unanimous Supreme Court, affirmed the judgment of the federal district court enjoining implementation of the plan drawn by the state court because it had not been precleared under § 5 of the Voting Rights Act. The Court vacated the district court’s alternative holding that the state court had no constitutional authority to adopt a congressional plan.
Mississippi’s attorney general had responded to the Justice Department’s last request for information about the state court plan on February 20, 2002. The plan would have gone into effect 60 days later, absent objection from the Justice Department. But the Mississippi attorney general had not appealed the federal district court order of February 26 enjoining implementation of the state court plan. The Supreme Court concluded that, because the State had not appealed the injunction, “the State was no longer ‘seek[ing] to administer’ the state court plan, and thus the 60-day time period for DOJ review was no longer running.” Slip op. at 8. The passage of time had not caused the plan to be precleared. Since the plan had not been precleared, it could not be implemented, and the federal district court had properly adopted a plan of its own.
Seven members of the Court agreed that the federal district court had properly adopted a plan using single-member districts, as mandated by 2 U.S.C. § 2c. Justices O’Connor and Thomas dissented, saying that the district court should have ordered at-large elections, as mandated by 2 U.S.C. § 2a (c)(5), since they were of the opinion that the mandate to draw single-member districts only applied after the State had redistricted and did not give a federal court authority to draw the districts first. Justices Stevens, Souter, and Breyer concurred that § 2c mandated the federal court to draw single-member districts, but expressed their opinion that the enactment of § 2c had impliedly repealed § 2a (c)(5), so that at-large elections were never an option. Justices Scalia, Rehnquist, Kennedy, and Ginsburg expressed their opinion that the role of § 2a (c)(5) was to permit the use of at-large elections when “the election is so imminent that no entity competent to complete redistricting pursuant to state law (including the mandate of §2c) is able to do so without disrupting the election process.” Scalia, J., slip op. at 19.
Mauldin v. Branch, No. 2002-CA-00146, 866 So.2d 429 (Miss. Dec. 18, 2003)
The Mississippi Supreme Court held that Miss. Code Ann. § 5-3-123 (Rev. 2002) assigned responsibility for drawing congressional district boundaries to the Legislature, thus depriving the state courts of jurisdiction to draw a congressional plan. Rather, the state courts could only assist the Legislature to draw a plan. See Miss. Code Ann. § 5-3-127 (Rev. 2002). The Court reversed its own order of December 13, 2001, In re Mauldin, No. 2001-M-01891, where it had found the Chancery Court did have jurisdiction to draw a congressional plan. It noted that Miss. Code Ann. § 23-15-1039 (Rev. 2001) provided that, if the state lost a congressional seat and the Legislature failed to draw new districts, all seats would be filled by an at-large election, but that the three-judge federal court’s injunction prevented the use of an at-large election until the injunction was vacated.
Barbour v. Gunn, No. 2003-EC-02169-SCT, 890 So.2d. 843 (Miss. Apr. 8, 2004)
The Mississippi Supreme Court was faced with a problem of resolving an ambiguity in the redistricting resolution that created the House Districts, Joint Resolution No. 1 of the 2002 Regular Session. The issue was whether all of precinct 4 in Clinton, Mississippi was to be included in House District 72, as set forth in the resolution, or whether part of precinct 4 should have been included in House District 56, as shown by the Census 2000 maps that were incorporated by reference into the resolution. The Court concluded that the redistricting resolution provided for resolving these issues by making the boundaries used in the Census 2000 maps controlling. It affirmed the decision of the trial court that found part of precinct 4 to be included in House District 56 and ordered a revote in that part of District 56. With the additional voters, the result of the election was reversed.
Woullard v. Mississippi, No. 3:05-CV-97 (S.D. Miss. June 29, 2006)
Plaintiffs challenged Senate District 45 as drawn by the Mississippi Legislature in 2002 as a racial gerrymander. As African American resident citizens of former District 45, they alleged that the district’s boundaries had been redrawn with the race-based goal of minimizing the number of minority voters in the district by moving them out of it. A three-judge court found that the district was redrawn with the goals of meeting equal population requirements, complying with the Voting Rights Act, and satisfying the requests of incumbent senators, and that race was not “a predominant factor in the drafting of District 45, or any other district.” The court dismissed the complaint.
James F. (Ted) Booth
P.O. Box 1204
Jackson, MS 39215-1204
Reynolds v. State, No. __________ (Ct. of Common Pleas Cole Co., complaint filed _____)
The complaint alleged that the current congressional districts were malapportioned.
Coons v. State, No. __________ (W.D. Mo., complaint filed _____)
The complaint alleged that the current congressional districts were malapportioned.
Director of Research
House of Representatives
State Capitol Room B-38
Office of Administration
Division of Budget and Planning
Capitol Building Room 124
Jefferson City, MO 65101
Jefferson City, MO 65101
Brown v. Districting and Apportionment Commission, No. ADV-2003-72 (1st Dist., Lewis and Clark County, July 2, 2003)
The Districting and Apportionment Commission submitted its plan for legislative districts to the 2003 Legislature for its review and comment, as required by the Montana Constitution, art V, § 14(4). The Legislature recommended that the Commission revise its plan. The Legislature also enacted a law defining the “as equal as practicable” principle of art. V, § 14(1) of the Constitution to mean “within a plus or minus 1% relative deviation from the ideal population of a district,” HB 309, § 1, and prohibiting the Secretary of State from accepting for filing any plan that did not meet the new statutory principle. HB 309, § 2. The Commission adopted its final plan without revision, and tendered the plan to the Secretary of State for filing. The Secretary of State refused to file the plan because it did not meet the new statutory principle and sought a declaratory judgment whether the plan complied with the Constitution, whether it was unenforceable under HB 309, and whether his refusal to file the plan was valid under Montana law. The district court held that HB 309 was in conflict with the Constitution and void, that the Secretary of State’s refusal to file the plan was in violation of the Constitution, and that the Secretary of State had no standing to seek a declaratory judgment on the constitutionality of the plan.
Wheat v. Brown, No. BDV-2003-601 (1st Dist., Lewis and Clark County, Jan. 2004), aff’d No. 04-015 (Mont. Feb. 18, 2004)
The 2003 Legislature also enacted Senate Bill 258, Senate Bill 445, and Senate Joint Resolution 23, attempting to assign certain senators who had two years left in their terms (“holdover senators”) to specific districts where they would not have to run for re-election in 2004 and repealing the transition plan for holdover senators adopted by the commission. Three holdover senators sued to enjoin the legislative changes made to holdover assignments. The district court held that assigning holdover senators was a part of the redistricting process and thus the responsibility of the commission, not the Legislature. It ruled that, “To the extent that any of the ... senate bills or joint resolution attempt to assign holdover senators pursuant to the 2000 federal census, they are hereby declared unconstitutional and of no force and effect.” The Montana Supreme Court affirmed.
Lisa Mecklenberg Jackson
No cases reported to this service.
Director of Research
Legislative Research Division
P.O. Box 94945
Lincoln, NE 68509-4945
Senior Legal Counsel
Legislative Research Division
Rm 1201 State Capitol
P.O. Box 94945
Lincoln, NE 68509-4945
P.O. Box 94945
Lincoln, NE 68509
No cases reported to this service.
Lorne J. Malkiewich
Below v. Gardner, No. 2002-0243, 148 N.H. 1 (N.H. June 24, 2002) (Senate plan)
When it appeared that the legislative process might not produce a legislative redistricting plan, the New Hampshire Supreme Court, by its order of May 17, 2002, enjoined the statutory filing period and set a deadline of May 22 for the legislature to act. When the Legislature failed to enact a plan by the deadline, the court’s order of May 23, 2002, announced its intention to draw the plan and to assess the State Treasurer for the costs of a computer system and technical assistance. The court’s order of May 24, 2002, denied a motion by the Speaker of the House for recusal of Chief Justice Brock from participating in the case because of his alleged bias, due to his having been impeached by the House of Representatives 18 months earlier. One order of May 30, 2002, set forth districting principles for the parties to follow in submitting plans to the court and a second order of May 30, 2002, announced the intention of the court to hire Mr. Bobby Bowers of South Carolina as its technical expert. An order of June 5, 2002, modified the court’s districting principles. An order of June 7, 2002, appointed Mr. Bowers and set the terms of his employment as a confidential adviser to the court, not subject to examination or disclosure. Another order of June 7 asked the parties to address the issue of how the expenses of technical assistance should be paid. A third order of June 7 set the procedures for oral argument on June 11. On June 24, 2002, the court issued its order adopting a senate plan, to which it made corrections in its order of July 11, 2002.
Burling v. Chandler, No. 2002-0210, 148 N.H. 143 (N.H. July 26, 2002) (House plan)
When it appeared that the legislative process might not produce a legislative redistricting plan, the New Hampshire Supreme Court, by its order of May 17, 2002, enjoined the statutory filing period and set a deadline of May 22 for the legislature to act. When the Legislature failed to enact a plan by the deadline, the court’s order of May 23, 2002, announced its intention to draw the plan and to assess the State Treasurer for the costs of a computer system and technical assistance. The court’s order of May 24, 2002, denied a motion by the Speaker of the House for recusal of Chief Justice Brock from participating in the case because of his alleged bias, due to his having been impeached by the House of Representatives 18 months earlier. An order of May 28, 2002, set forth districting principles for the parties to follow in submitting plans to the court. An order of May 30, 2002, announced the intention of the court to hire Mr. Bobby Bowers of South Carolina as its technical expert. An order of June 4, 2002, modified the court’s districting principles. An order of June 7, 2002, appointed Mr. Bowers and set the terms of his employment as a confidential adviser to the court, not subject to examination or disclosure. Another order of June 7 asked the parties to address the issue of how the expenses of technical assistance should be paid. A third order of June 7 set the procedures for oral argument on June 11. On July 12, 2002, the court announced that, due to discrepancies in the population data for certain cities, it would be unable to meet its proposed schedule of July 15 for completing a house plan. On July 26, 2002, the court issued its order adopting a House plan, accompanied by maps and population tables. The House plan divided the 400 representatives into 88 districts with from one to 14 members in each district. The court eliminated the floterial districts that had been used in past plans. The overall range of the plan was 9.26 percent. In a separate order, the court set a filing period of July 31 to August 9.
In re Below, No. 2004-361. 151 N.H. 135 (N.H. June 22, 2004)
Petitioner alleged that, since the state constitution permits the legislature to redistrict only once every ten years, and since the legislature had failed to do so in time for the 2002 election, and the state Supreme Court had drawn the plan used in the 2002 election, the legislature had exceeded its constitutional authority by amending the court’s redistricting plan in 2004. The court disagreed, holding that the legislature’s 2004 amended plan was its one plan for the decade. The New Hampshire Supreme Court left the question of whether the amended plan violated one-person, one-vote requirements or the Voting Rights Act for further consideration by the trial court.
Town of Canaan v. Gardner, No. 08-E-157 (Superior Ct., Merrimack, May 29, 2008), aff’d No. 2008-391 (N.H. Oct. 29, 2008)
The Superior Court denied the petitioners’ request for a declaratory ruling that the current state representative districts in New Hampshire were unconstitutional and that the Secretary of State should be enjoined from conducting the 2008 elections using the current districts. Petitioners argued that new districts should be established for state representative seats because the New Hampshire constitution had been amended by the voters in 2006 to change the manner in which these districts would be established. The court denied their requests and ruled that the express language of the amendment to the state constitution required the next redistricting to occur after the next decennial census.
Page v. Bartels, No. 01-1733, 144 F. Supp.2d 346, 2001 WL 505187 (D. N.J. May 4, 2001)
Plaintiffs sought to enjoin implementation of a legislative redistricting plan adopted by the New Jersey Apportionment Commission on April 11, 2001. They alleged that the plan violated § 2 of the Voting Rights Act and the 14th and 15th Amendments to the U.S. Constitution because it reduced the concentration of African American voters in three legislative districts with an intent to dilute their voting strength. Defendants countered that the plan, while reducing the concentration of African Americans to less than a majority of the voting age population in the three districts, also increased the concentration of African Americans in a fourth district, thus giving them an effective voting majority in all four districts, because both Hispanics and Whites often voted for African American candidates. The three-judge court found for the defendants, finding that the plan drafters had not intended to discriminate against African Americans and that the plan did not have the effect of diluting their voting strength. Rather, it likely would increase by one the number of African Americans elected to the Legislature from the four districts.
Robertson v. Bartels, 148 F. Supp. 2d 443 (D.N.J. 2001), aff’d 534 U.S. 1110 (Jan. 22, 2002) (No. 01-721) (mem.)
A white Republican state senator whose district was redrawn to raise its Black voting age population from 3.9 percent to 35.3 percent alleged that the New Jersey Apportionment Commission had violated the Equal Protection Clause by protecting all minority incumbents but not all white incumbents. A three-judge panel granted summary judgment for defendants on the basis of res judicata. Although neither all the plaintiffs nor all the arguments were the same as in Page v. Bartels, the court found that the Robertson plaintiffs were in privity with the Page plaintiffs and their interests had been adequately represented by the Page plaintiffs.
McNeil v. Legislative Apportionment Commission, No. M-728, September Term 2002, 54,209 (N.J. Mar. 6, 2003)
On January 22, 2003, the Superior Court Appellate Division had stuck down the legislative plan because it violated article IV, § 2, of the New Jersey Constitution by dividing Newark and Jersey City each into three legislative districts. On March 6, the New Jersey Supreme Court stayed the decision of the Appellate Division pending appeal, observing that the two cities had each been divided into at least three legislative districts ever since the constitutional prohibition had been adopted nearly 40 years before. The stay permitted the 2003 elections to be run under the same plan as the 2001 election.
McNeil v. Legislative Apportionment Commission, No. A-73, September Term 2002, (N.J. July 31, 2003)
On appeal, the New Jersey Supreme Court held that the New Jersey Constitution’s political boundary requirement may not be validly enforced with respect to Newark and Jersey City without violating the Voting Rights Act. To pack all of Newark and Jersey City residents into two districts each after nearly 40 years of having three districts each, thereby reducing the Senators and Assembly persons representing them by one-third, would result in vote dilution in violation of § 2 of the Voting Rights Act. The Supreme Court also observed that the complaint could have been precluded under res judicata by the results of the earlier cases of Page v. Bartels and Robertson v. Bartels, since the McNeil plaintiffs either were plaintiffs in Page or were in privity with them, they sought the same relief invalidating the Bartels plan, and their state-law claim should have been raised in the same suit as their federal law claims under the doctrine of pendent (or “supplemental”) jurisdiction. It reversed the judgment of the Appellate Division and reinstated the judgment of the trial court dismissing the complaint.
Jepsen v. Vigil-Giron, No. D0101 CV 2001 02177 (1st Jud. Dist. Santa Fe Co. Jan. 2, 2002)
Following the governor’s veto of a congressional redistricting plan passed by the legislature, the parties presented the state district court with six different proposed plans. The plan passed by the legislature and two others similar to it created one district (out of three) with an Hispanic majority. Two plans were drawn to meet the concerns expressed by the governor and did not create an Hispanic-majority district. The sixth plan was submitted by the Vigil plaintiffs in intervention and called the “Least Change” plan because it moved the minimum number of people into new districts in order to equalize the populations without splitting any precincts. It resulted in an overall range of 166 persons and no Hispanic-majority district. All plans, other than the “Least Change” plan, split the City of Albuquerque for the first time in state history. The court found that the white majority in New Mexico did not vote sufficiently as a block to enable it to usually defeat the minority’s preferred candidate, so drawing an Hispanic-majority district was not required by the Voting Rights Act. It found that establishment of a majority Hispanic district involves serious political considerations and should be done by the legislature and governor working together within the political process, not by a court. The court found it inappropriate for a court “to make radical or partisan changes unless the law requires those changes to be made.” It looked to the current congressional districts as “the last, clear expression of state policy on this issue” and adopted the “Least Change” plan.
Jepsen v. Vigil-Giron, No. D0101 CV 2001 02177 (1st Jud. Dist. Santa Fe Co. Jan. 24, 2002)
Following veto by the governor of both the first and the second House plans passed by the Legislature, the state court considered six plans submitted by the parties. The court found that the Navajo Nation and the Jicarilla Apache Nation had established the existence of the Gingles three preconditions and that the totality of the circumstances showed that the current House plan failed to provide equal electoral access to New Mexico’s Native American population. The court adopted the plans of the two nations as the best overall remedy to vote dilution in the Northwestern quadrant of the state. For the balance of the state, the court adopted the second plan passed by the Legislature and designed to respond to the objections of the governor in his first veto message. The court said its decision was based on the same principles used in choosing a congressional plan: look to the last clear expression of state policy; do not make radical or partisan changes unless the law requires those changes to be made; shift the population necessary to bring the state into compliance with the one-person, one-vote requirement; insure the districts are compact and contiguous to the extent possible and keep intact to the extent possible county and municipal boundaries; maintain percentages of effective Hispanic and Native American majority districts as in the existing plan, subject to Voting Rights Act compliance; and try to promote partisan fairness and political competition. The court noted that, as a state court, it was not constrained by the de minimis standard of population deviation imposed on federal courts in adopting a state legislative redistricting plan, but rather by the ten-percent standard applicable to plans adopted by a state Legislature.
Santa Fe, NM 87501
Santa Fe, NM 87501
Rodriguez v. Pataki, No. 02 Civ. 0618 (S.D. N.Y. May 23, 2002)
Plaintiffs challenged the current congressional districts as in violation of equal population requirements and requested the court to draw new districts if the Legislature failed to do so. A Special Master was appointed on April 26, 2002. He was assisted by three experts: Professors Bernard Grofman and Nathaniel Persily and Mr. Marshall Turner. Following a public hearing and submissions from the parties, on May 13, 2002, the Special Master recommended a plan to the court. On May 23, 2002, the three-judge court adopted the Special Master’s plan, but said it was still “willing, indeed eager” to let state lawmakers draw their own plan. The court did not set a deadline for the Legislature to act.
On June 5, 2002, the Governor approved new congressional districts enacted as Chapter 86. On June 25, 2002, the Department of Justice precleared the newly-enacted congressional plan.
Allen v. Pataki, No. 02-101712 (N.Y. Sup. Ct., N.Y. County, May 29, 2002)
Plaintiffs challenged the state senate redistricting plan signed by the Governor on April 24, 2002, on the ground that it failed to meet equal population requirements. The plan had an overall range of 9.78 percent. Plaintiffs alleged that past plans had “total deviations” (overall ranges) of 1.83 percent in 1972, 5.30 percent in 1982, and 4.29 percent in 1992. They alleged that the new plan was not the product of an honest and good faith effort to achieve population equality, and that the districts favored upstate districts by underpopulating them and disfavored downstate districts by overpopulating them. The trial court denied a motion for a preliminary injunction that would have enjoined the use of the plan for the 2002 election.
Rodriguez v. Pataki, No. 02 Civ. 0618; Allen v. Pataki, No. 02 Civ. 3239, 308 F. Supp. 2d 346 (S.D. N.Y. Mar. 15, 2004), aff’d 543 U.S. ____ (Nov. 29, 2004) (No. 04-218) (mem.)
Plaintiffs challenged various of the New York State Senate districts enacted in 2002, some as violations of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and some as violations of § 2 of the Voting Rights Act of 1965. One group of plaintiff-intervenors challenged a Senate district and another challenged the 17th Congressional District as violating § 2 of the Voting Rights Act. A three-judge district court dismissed all the challenges.
One Person, One Vote
Plaintiffs alleged that the 2002 Senate plan violated the “one person, one-vote” principle by overpopulating a contiguous cluster of 29 Senate districts in New York City and its northern suburbs, and underpopulating all 24 districts to the north. (The nine Long Island districts all have populations nearly equal to the statewide mean.) Plaintiffs alleged that the cumulative effect was to give the “downstate” region approximately two-thirds of a district less than its share of the state’s population warranted, while giving the “upstate” region two-thirds of a district more, thus depriving “downstate” residents of their fare share of representation. A three-judge district court ruled that the alleged malapportionment did not constitute invidious discrimination, because the 2002 Senate plan took account of legitimate districting principles, such as preserving the cores of existing districts and avoiding the pairing of incumbents.
§ 2 of the Voting Rights Act – Nassau County
Plaintiffs alleged that the 2002 Senate plan split the black population of Nassau County among four districts, and that this was part of a systematic pattern of diluting minority group voting strength that extended through four decades of redistricting. They alleged that a compact district could have been created where black voters, although not a majority, would be able to elect the candidates of their choice, in coalition with a minority of the white voters. The court found that the plaintiffs had failed to prove, as is required to establish a redistricting complaint under the Voting Rights Act, that black voters could elect their preferred candidate in the proposed district.
§ 2 of the Voting Rights Act – Suffolk County
Plaintiffs alleged that the 2002 Senate plan split the black and Hispanic populations of Suffolk County among three districts, and that this was part of a systematic pattern of diluting minority group voting strength that extended through three decades of redistricting. They alleged that, although no district could be created in which minority group voters could be confident of electing the candidate of their choice, a compact district could be created that would give minority group voters significant influence in a State Senate election. They argued that the consistency with which minority populations had been split over the decades indicated intentional discrimination, and that the discrimination warranted the creation of a “minority influence” district. The court found that intentional discrimination had not been proven, and that influence-dilution claims, as distinct from “ability to elect” claims, are not cognizable under Section 2 of the Voting Rights Act.
§ 2 of the Voting Rights Act – Bronx and Westchester Counties
Plaintiffs alleged that an additional compact Hispanic-majority district could have been created in the northwest Bronx and southwest Yonkers if the 2002 Senate plan had not followed three discriminatory practices: (1) packing minority population into Bronx districts far in excess of the percentages necessary to enable minority group voters to elect the candidates of their choice; (2) malapportioning districts to the disadvantage of “downstate” residents; (3) racial gerrymandering to create a super-majority white district. The court found that the plaintiffs had proven that Hispanic voters are politically cohesive, that their preferred Senate candidates are usually defeated by white bloc voting in the white-majority districts in the Bronx and Yonkers, and that Hispanic voters could elect the candidates of their choice in the plaintiffs’ proposed district. The court found, however, that Hispanic voters in the Bronx already enjoy representation in the Senate that is substantially proportional to their share of the population of the Bronx, and that therefore a violation of the Voting Rights Act had not been established considering the “totality of the circumstances.”
Racial Gerrymandering – the Bronx and Westchester
Plaintiffs alleged that Senate District 34 (Bronx, Pelham, New Rochelle, Eastchester, Mount Vernon, Yonkers) was drawn primarily on the basis of race, to create a district with a white super-majority, in violation of the Equal Protection Clause, as interpreted by the Supreme Court in Shaw v. Reno and subsequent cases. The court found that the configuration of District 34 could be explained by what the court viewed as legitimate considerations, particularly partisan advantage and incumbent protection.
Intervenors’ Complaint Against Senate District 31
One group of plaintiff-intervenors alleged that Senate District 31 (Washington Heights, Riverdale, the upper west side of Manhattan) denied Hispanic voters an opportunity to elect the candidate of their choice, and should be redrawn to increase the Hispanic voting-age majority in the district. The court found that the statistical analysis presented by the plaintiff-intervenors failed to establish that Hispanic voters would be unable to elect the candidates of their choice in District 31, or that their preferred candidates would usually be defeated by racial bloc voting by whites.
Intervenors’ Complaint Against Congressional District 17
Another group of plaintiff-intervenors alleged that Congressional District 17 denied minority group voters an opportunity to elect representatives of their choice and should be redrawn with a combined black and Hispanic majority. The court found that black and Hispanic voters are not mutually cohesive in their voting patterns in Congressional District 17, and that neither group alone would be able to elect the candidate of its choice in the plaintiff-intervenors’ proposed district.
Debra A. Levine
Reapportionment Task Force
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Jeffrey M. Wice
Stephenson v. Bartlett, No. 1 CV 02885 (Superior Court, Johnston Co., Feb. 20, 2002)
On February 15, 2002, four days after the Justice Department told the State that its House and Senate district plans met the requirements of the Voting Rights Act, a state court ruled from the bench that the plans violated a provision of the North Carolina constitution that requires counties to be kept whole when drawing state House and Senate districts. The state court declined to enjoin use of the districts for the 2002 election, for which filings were to open on February 18, suggesting that new plans could be drawn by the General Assembly in 2003 to govern elections in 2004 and beyond.
On February 20, in its written order, the court did not discuss, distinguish, or mention the opinion of the federal district court in Cavanagh v. Brock, 577 F. Supp. 176 (E.D. N.C. 1983), that the North Carolina constitutional provision prohibiting dividing counties was unenforceable under § 5 of the Voting Rights Act in the 40 counties subject to that section because it was not precleared, and unenforceable in North Carolina’s other 60 counties because it was not severable. The court enjoined use of the districts for the 2002 election, but stayed its order unless and until the stay was removed by the North Carolina Court of Appeals or North Carolina Supreme Court, and also until the order was precleared under § 5 of the Voting Rights Act. The court requested the parties to submit a proposed deadline for the General Assembly to redraw the districts and offered to draw a remedial plan for the 2002 election if the deadline were not met and if so directed by the appellate court.
Stephenson v. Bartlett, No. 94P02 (N.C. Feb. 26, 2002)
Without lifting the stay of the Superior Court order holding the North Carolina State House and Senate plans enacted in 2001 to be unconstitutional as dividing too many counties, the North Carolina Supreme Court ordered an expedited appeal schedule. Oral arguments were scheduled for April 4 (candidate filing for the May 7 primary was scheduled to end on March 1, mail-in absentee voting was to be underway by late-March).
Stephenson v. Bartlett (Stephenson I), No. 94PA02, 355 N.C. 354, 562 S.E.2d 377 (Apr. 30, 2002), stay denied 535 U.S. 1301 (May 17, 2002) (Rehnquist, Circuit Justice, in chambers)
The North Carolina Supreme Court affirmed the superior court holding that North Carolina State Senate and State House plans were unconstitutional because of a state constitutional provision saying no counties could be divided, but said that the no-divided-counties provision has limited applicability. First, minority districts must be created to satisfy the Voting Rights Act. Then, counties with enough members for exact multiples of seats must be subdivided into single-member districts while respecting the outer boundary of the county. Then, groups of counties must be assembled and divided into single member districts that respect the outer boundary of the group of counties. The new plan must not cause the opportunities for minorities to regress, using the 2001 precleared plan as the benchmark. The district court was ordered to hold an expedited hearing on whether the General Assembly was capable of redrawing the districts in time for the 2002 election. If not, the district court was authorized to impose a temporary plan of its own for use in the 2002 election, subject to being precleared.
Stephenson v. Bartlett, No. 1 CV 02885 (Superior Court, Johnston Co., May 31, 2002)
After the General Assembly enacted new House and Senate plans on May 17, Superior Court Judge Knox V. Jenkins threw them out and drew maps of his own. The court’s House plan was a modification of the one adopted by the General Assembly. The court’s Senate plan was a modification of one submitted to the court by the plaintiffs.
Stephenson v. Bartlett, No. 94PA02 (N.C. June 4, 2002)
The North Carolina Supreme Court denied the State’s request to stay enforcement of the Superior Court’s order and a motion to expedite hearing the State’s appeal. A hearing on the appeal was not likely until January, meaning that the 2002 election was likely to be run using the plans adopted by the Superior Court May 31, 2002.
Board of Elections v. United States, No. 02-1174 (D.D.C. June 27, 2002)
The complaint sought preclearance of both the North Carolina Supreme Court decision of April 30, 2002, in the Stephenson case and the interim plans adopted by the Superior Court May 31, 2002. In the complaint, the State took no position on whether the opinion in Stephenson or the interim plans should be precleared, but said that the federal court was the best forum to resolve those issues. On June 27, 2002, a three-judge court denied the State's motion for a temporary restraining order and preliminary injunction, saying there was no showing of irreparable harm, since the state court plan would not be implemented without Section 5 preclearance and the federal court for the Eastern District of North Carolina could further compress the election schedule to allow a second primary (presumably buying some time by having less than four weeks between the two primaries). The court declined to decide whether it had jurisdiction to issue the orders, saying that the federal court in two pending cases in the Eastern District of North Carolina, Sample v. Jenkins, No. 20-CV-383 (E.D.N.C. filed June 13, 2002) and Foreman v. Bartlett, No. 01-CV-166 (E.D.N.C. filed Nov. 13, 2001) would have authority to grant relief. The court noted that the Department of Justice would have a decision on the Section 5 submittals of the Stephenson case and the Jenkins plan by the week of July 8, 2002.
Sample v Jenkins, No. 20-CV-383 , (E.D. N.C. July 2, 2002)
A three-judge court unanimously denied the State’s motion for a preliminary injunction to conduct the 2002 state legislative election under the precleared legislatively-enacted 2001 plan, rather than an interim state court ordered plan that was still pending Section 5 preclearance at the Department of Justice.
On July 12, 2002, the Department of Justice precleared both the new interpretation of the North Carolina constitutional requirement to preserve whole counties announced in the Stephenson decision and the new legislative districts drawn by Judge Jenkins.
Stephenson v. Bartlett (Stephenson II), No. 94PA02-2, 357 N.C. 301, 582 S.E.2d 247 (July 16, 2003)
The appeal of the May 31, 2002, decision of the Superior Court holding unconstitutional both the Senate and House plans drawn by the General Assembly was heard on the merits by the North Carolina Supreme Court on March 10, 2003. On March 14, the court certified the matter to the trial court for additional findings of fact. On April 17, 2003, the trial court certified the additional findings of fact to the Supreme Court. On July 16, 2003, the North Carolina Supreme Court affirmed the decision of the trial court holding both Senate and House plans invalid. It noted the trial court had found that the House plan violated § 2 of the Voting Rights Act because it did not create a second “VRA” district in Wake County, which plaintiffs’ plan showed it was possible to do, and that the Senate plan violated § 2 of the Voting Rights Act because it did not create “VRA” districts in Wake, Mecklenburg, and Forsyth counties that were as “effective” as those drawn by plaintiffs. No. 94PA02-2, slip op. at 8-9. The trial court had found that both Senate and House plans violated the requirement of the state constitution that “[e]ach . . . district shall at all times consist of contiguous territory.” N.C Const., art. II, §§ 3(2), 5(2). No. 94PA02-2, slip op. at 10. The trial court had opined that “the mathematical concept of ‘point contiguity’ does not meet the Stephenson criteria for contiguity . . . .” and held that “the term ‘contiguity,’ as used in Stephenson, means that two districts must share a common boundary that touches for a non-trivial distance . . . .” No. 94PA02-2, slip op. at 15. The trial court had found that both the Senate and House plans violated the whole-county provision (WCP) of the state constitution, N.C Const., art. II, §§ 3(3), 5(3), because plaintiffs’ plan showed that it was possible to keep more counties whole without violating federal law. No. 94PA02-2, slip op. at 9. The trial court had found that both the Senate and House plans violated the direction of the North Carolina Supreme Court that “non-VRA districts shall be compact” (referring to Stephenson v. Bartlett, 355 N.C. 354, 383, 562 S.E.2d 377, 397 (2002) (“Stephenson I”)). Finally, the trial court had found that both plans unnecessarily divided communities of interest, No. 94PA02-2, slip op. at 11-15, contrary to the mandate of Stephenson I that “communities of interest should be considered in the formation of compact and contiguous districts.” 355 N.C. at 384, 562 S.E.2d at 397.
Stephenson v. Bartlett, 358 N.C. 219, 595 S.E.2d 112 (Apr. 22, 2004)
On November 25, 2003, along with the new legislative redistricting plan it enacted in compliance with the North Carolina Supreme Court’s decision of July 16, 2003, the General Assembly enacted 2003 N.C. Session Law 434, §§ 7-11, codified at N.C.G.S. §§ 1-81.1, 1-267.1, 120-2.3, and 120-2.4, which provided that venue in any action involving redistricting lies exclusively with the Superior Court, Wake County and that legal challenges to legislative redistricting plans must be heard by a three-judge panel appointed by the Chief Justice of the North Carolina Supreme Court. No judge who had been a member of the General Assembly could serve on the panel. Redistricting actions pending in a court other than Superior Court, Wake County, had to be transferred to that court. If a court were to find a redistricting plan flawed, the General Assembly would have to be given an opportunity to correct any defects before the court imposed a substitute plan. Plaintiffs challenged the constitutionality of the law. The North Carolina Supreme Court held that: (1) the session law establishing three-judge panels for challenges to redistricting plans and placing venue for the challenges in Wake County could be applied to plaintiffs; (2) the three-judge panel requirement did not unconstitutionally create a new court; (3) the venue provision was constitutional; and (4) the three-judge panel requirement did not unconstitutionally infringe on the Chief Justice’s powers.
Pender County v. Bartlett, No. 103A06, 361 N.C. 491, 649 S.E.2d 364 (Aug. 24, 2007), aff’d sub nom. Bartlett v. Strickland, No. 07-689 (Mar. 9, 2009)
The 2003 General Assembly enacted a new legislative redistricting plan, Act of Nov. 25, 2003, ch. 434, 2003 N.C. Sess. Laws (1st Extra Sess. 2003) 1313. Past election results in North Carolina had demonstrated that a legislative district with an African American voting age population of at least 38.37 percent created an opportunity for African Americans to elect a candidate of their choice. In the area that encompassed Pender and New Hanover Counties, it was possible to draw a House district with an African American voting age population in excess of that threshold. In accordance with what the General Assembly said were the requirements of § 2 of the Voting Rights Act, chapter 434 divided Pender County between House District 16 and House District 18, with District 18 having an African American voting age population of 39.36 percent. Pender County sued various officials of the State Board of Elections, the General Assembly, and the executive branch, alleging that chapter 434 violated the whole-county provision (WCP) of the state constitution, N.C Const., art. II, §§ 3(3), 5(3). Defendants responded that the division of Pender County was required by § 2 of the Voting Rights Act, which trumped the State Constitution. The Chief Justice appointed a three-judge panel to consider the case. The panel denied a motion to enjoin use of chapter 434 for the 2004 election. The panel found that House District 18 was a crossover district, where African Americans enjoyed reliable support from some members of the White majority who crossed over racial lines and voted for the minority’s preferred candidate, allowing that candidate to be elected. Therefore, the panel concluded that dividing Pender County was required by § 2 of the Voting Rights Act.
On appeal, the North Carolina Supreme Court reversed. It recognized four distinct types of minority districts: (1) “majority-minority” districts, (2) “coalition” districts, (3) “crossover” districts, and (4) “influence” districts. It observed that the courts of appeals in five federal circuits (4th, 5th, 7th, 10th, and 11th) had held that nothing less than a “majority-minority” district, i.e., a minority population of at least 50 percent of the voting age population, was sufficient to make out a violation of § 2, and that no circuit had held that § 2 could be satisfied by the creation of a coalition, crossover, or influence district. The Court also noted that citizenship must be considered, so that a majority of the voting age population who are citizens is required. It found the use of a “bright line rule” to be more practical than one requiring an assessment of past voting behavior and a prediction of future voting trends. It would provide the General Assembly with a safe harbor when drawing districts and foreclose marginal claims by minority groups with smaller populations. In view of the fact that the General Assembly was not scheduled to reconvene until after the close of filings for the 2008 election, the Court stayed its order requiring the General Assembly to redraw the districts until after the 2008 election.
Bartlett v. Strickland, No. 07-689 (Mar. 9, 2009)
On appeal, a 5-4 majority of the U.S. Supreme Court affirmed the decision of the North Carolina Supreme Court. In an opinion by Justice Kennedy, joined by Chief Justice Roberts and Justice Alito, the Court held that § 2 of the Voting Rights Act does not require creation of a district in which a minority population has a fair opportunity to elect a representative of its choice if the minority would constitute less than a majority of the voting age population in the district. On the other hand, the Court said that “Our holding does not apply to cases in which there is intentional discrimination against a racial minority.” Slip op. at 15. The Court also endorsed the voluntary use of crossover districts to comply with § 2 and to maximize minority voting strength. Slip op. at 19-21. Justices Thomas and Scalia concurred in the judgment. Justices Souter, Stevens, Ginsburg, and Breyer dissented.
Kelsh v. Jaeger, 2002 ND 53, 641 N.W.2d 100 (2002)
A state senator filed a petition for a writ of prohibition enjoining the Secretary of State from conducting an election in his district in 2002, on the ground that he had been elected in 2000 to a four-year term and that the Legislature did not have the power, in passing a redistricting bill, to shorten his term. The Court held that truncating the terms of some members was necessary to achieve the constitutional goal of approximately one-half of the members being elected every two years, and that his was an appropriate term to truncate, since the redrawn district changed his constituency by 46.6 percent. The Court held that a provision in the redistricting law that gave an incumbent senator authority to stop the election in his district in 2002 was void as an impermissible delegation of legislative power.
Bismarck, ND 58505-0360
Adam v. Ohio, No. 426639 (Ct. Com. Pl. Cuyahoga Co., Apr. 26, 2001)
The complaint alleged that congressional districts were malapportioned because Ohio had lost one congressional seat and population estimates by the Census Bureau and Ohio Office of Strategic Research showed districts out of population balance. It requested the court to enjoin use of current districts, establish a deadline for the General Assembly and Governor to draw new districts, and draw new districts if deadline were not met. The complaint was dismissed.
Cunningham v. Ohio, No. 1:00CV2338 (N.D. Ohio, complaint filed Dec. 29, 2000)
The complaint alleged that congressional districts were malapportioned because Ohio had lost one congressional seat and population estimates by Census Bureau and Ohio Office of Strategic Research showed the districts were out of population balance. It requested the court to enjoin use of the current districts, establish a deadline for the State to draw new districts, and draw new districts if the deadline were not met.
Parker v. Ohio, No. C2-01-1132, 263 F. Supp.2d 1100 (S.D. Ohio May 23, 2003), aff’d 540 U.S. 1013 (Nov. 17, 2003) (No. 03-411) (mem.)
A three-judge court upheld the legislative plan drawn by the Apportionment Board against a challenge that it discriminated against African American voters. The court held that plaintiffs had failed to show that the African American population was sufficiently large and geographically compact to constitute a majority in a single-member district and held that, at least in the Sixth Circuit, the State was under no obligation under § 2 of the Voting Rights Act to create “influence” districts. The court held that plaintiffs had failed to prove their Fourteenth Amendment claim that race was the predominant factor in drawing the district lines and their Fifteenth Amendment claim that the Apportionment Board intentionally discriminated against citizens of Ohio based on their race.
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Legislative Service Commission
77 South High Street, 8th Floor
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Alexander v. Taylor, No. 97836, 51 P.3d 1204 (Okla. June 25, 2002)
When the Legislature failed to adopt a new congressional plan reflecting Oklahoma’s 2000 population and a reduction of its congressional seats from six to five, the Honorable Vicki Robertson, Judge of the District Court of Oklahoma County, after a five-day non-jury trial, on May 31, 2002, adopted the Governor’s proposed plan. On appeal, the Oklahoma Supreme Court affirmed, declining to follow Smith v. Clark, 189 F. Supp.2d 503 (S.D. Miss. Feb. 26, 2002), prob. juris. noted sub nom. Branch v. Smith, No. 01-1437 (U.S. June 10, 2002), and holding that state courts do have jurisdiction to draw congressional districts.
Perrin v. State, No. __________ (Dist. Ct. Multnomah Co., complaint filed Apr. 18, 2001)
The complaint alleged that the current congressional districts were malapportioned.
Perrin v. Kitzhaber, No. 0107-07021, (Dist. Ct. Multnomah Co., Oct. 19, 2001)
After the Oregon Legislature adjourned sine die without enacting a new congressional plan, plaintiff asked the court to draw one. The Court did so. See Or. Rev. Stat. § 188.140 (district descriptions).
Hartung v. Bradbury, 332 Or. 570, 33 P.3d 972 (2001)
Petitioners challenged a legislative plan prepared by the Secretary of State after the Legislature adjourned its regular session sine die without enacting one, following the Governor’s veto of the plan passed by the Legislature. Exercising original jurisdiction, the Supreme Court, Riggs, J., held that: (1) the plan did not violate the “separate vote” requirement of the Oregon Constitution; (2) the Governor had the power to veto the Legislature's redistricting plan; (3) the Secretary of State’s plan did not violate the constitutional provision that senate districts must consist of contiguous counties as limited by Fourteenth Amendment; (4) the secretary's population variance guidelines among districts met state and federal constitutional requirements; (5) the plan did not violate the statutory requirement that the secretary consider community of common interest in drawing boundaries; (6) the plan did not violate the statutory requirement that the secretary utilize political boundaries as nearly as practicable in drawing boundaries; and (7) the plan violated population equalization required by statute by using known incorrect census data. The court granted one petition and dismissed the remaining ones.
Carter v. U.S. Department of Commerce, No. 02-35161 (9th Cir. Oct. 8, 2002)
Plaintiff Oregon state legislators sought release of the adjusted census data for 2000 under the Freedom of Information Act. The Census Bureau resisted, citing the “deliberative process” privilege. The district court found that the deliberative process privilege did not permit nondisclosure of the adjusted numbers because they were neither predecisional nor deliberative and ordered the Department of Commerce to release the adjusted data. The court of appeals affirmed.
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Albert v. 2001 Legislative Reapportionment Commission, 567 Pa. 670, 790 A.2d 989 (2002)
Voters, organizations, and governmental entities petitioned for review of the legislative plan drawn by the Reapportionment Commission, primarily complaining that their various communities had been divided unnecessarily. The court held that only a voter could be an “aggrieved person;” others had no standing to challenge the plan. It held that the plan met state and federal constitutional requirements.
Erfer v. Commonwealth, 568 Pa. 128, 794 A.2d 325 (Mar. 15, 2002)
The complaint alleged that the congressional redistricting plan, Act No. 2002-1 of January 7, 2002, (Act 1), was a partisan gerrymander that violated various provisions of the Pennsylvania Constitution, including the equal protection guarantee and the free and equal elections clause. It alleged that, although support for Republicans and Democrats was approximately equal statewide, 13 or 14 of the 19 districts were likely to be won by a Republican candidate. The court held that the plaintiffs had failed to show they were effectively shut out of the political process, because they had not shown that a winning Republican candidate would entirely ignore the interests of citizens who voted for a Democrat and because at least five seats were “safe seats” for Democratic candidates.
Vieth v. Commonwealth, No. 1:CV-01-2439, 188 F. Supp.2d 532 (M.D. Pa. Feb. 22, 2002), appeal dismissed for want of jurisdiction sub nom. Pennsylvania Republican Caucus v. Vieth, No. 01-1713 (U.S. Oct. 7, 2002); appeal dismissed as moot, No. 01-1873 (Act 1 had been repealed for any election after 2002), and sub nom. Jubelirer v. Vieth, No. 02-135 (U.S. Oct. 7, 2002)
The complaint alleged, among other things, that the congressional redistricting plan passed by the Pennsylvania General Assembly and signed into law on January 7, 2002 (Act 1), was a partisan gerrymander that violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The district court held that, although plaintiffs had alleged that they had been shut out of the political process, they had “not alleged facts indicating that they have been shut out of the political process and, therefore, they cannot establish an actual discriminatory effect on them.” 188 F. Supp. 2d at 547. The partisan gerrymandering claim was dismissed.
Vieth v. Commonwealth, No. 1:CV-01-2439, 195 F. Supp. 2d 672 (M.D. Pa. Apr. 8, 2002), appeal dismissed as moot sub nom. Jubelirer v. Vieth, No. 01-1817, and Schweiker v. Vieth, No. 01-1823 (Act 1 had been repealed for any election after 2002)
The complaint alleged, among other things, that the congressional redistricting plan passed by the Pennsylvania General Assembly and signed into law on January 7, 2002 (Act 1), violated the constitutional requirement for equal population, since it had an overall range of 19 persons. Plaintiffs showed that a plan could be drawn with an overall range of one person and that split no precincts. Defendants countered that plaintiffs’ “zero deviation” plan had not been presented to the General Assembly at the time the bill was being considered and that to have reduced the deviation below 19 persons while keeping the general outline of Act 1 would have required that more precincts be split than the six that were split under Act 1. A majority of the three-judge federal district court found that plaintiffs had met their burden of showing that the deviation in Act 1 was avoidable. The court also noted that the deviation could not be justified as a good faith effort to achieve population equality, since the staff person drawing the plan had been told to stop working for a lower deviation once he got to 19; that it could not be justified as an attempt to avoid splitting precincts, since plaintiffs showed it was possible to draw a map with zero deviation that split no precincts; and that of all the plans presented at trial, Act 1 had the least compact districts, split the most counties and municipalities, split more precincts than any plan other than one submitted by defendants themselves, retained the cores of prior districts only for Republican incumbents, and paired six incumbents rather than the minimum of four. The court declared Act 1 unconstitutional, enjoined its implementation, and gave the General Assembly three weeks to enact and submit to the court a new plan. The court deferred action on the plaintiffs’ request that it draw its own congressional plan pending action by the General Assembly.
Vieth v. Pennsylvania, No. 1:CV-01-2439, 241 F. Supp.2d 478 (M.D. Pa. Jan. 24, 2003), aff’d sub nom. Vieth v. Jubelirer, No. 02-1580 (U.S. Apr. 28, 2004)
On April 18, 2002, the General Assembly enacted a new congressional plan, HB 2545, Act 34, which reduced the overall range of the plan from 19 persons to one person. On April 23, 2002, the court stayed its order of April 8, allowing Act 1 to be used for the 2002 election. It set a hearing for May 8, 2002, on the question of whether Act 34 should govern elections in 2004 and beyond.
On January 24, 2003, a three-judge court held that Act 34 met equal population requirements. This was true notwithstanding that there was a question about its actual boundaries. A decision of the Court of Common Pleas for Armstrong County on March 15, 2002, had moved the boundary between two precincts, moving 49 people from the 12th Congressional District to the 3rd Congressional District and giving the plan an overall range of 97 people. The next day, the Commonwealth enacted Act 44, retroactively rescinding the Armstrong County Court’s ability to alter precinct boundaries. On December 9, 2002, the Commonwealth enacted Act 150, fixing the boundaries of precincts that served as the boundaries of legislative or congressional districts until new districts were drawn. The three-judge court found that the General Assembly had made a good faith effort to adopt a zero-deviation plan so, even if the General Assembly did not have constitutional authority to undo the decision of the Court of Common Pleas, the plan was valid.
The three-judge court also held that the plan was not an unconstitutional partisan gerrymander, because plaintiffs had not alleged facts “indicating that they have been shut out of the political process.” 241 F. Supp.2d at 484. The court noted that, even though the plan met equal population requirements, it “jettisons every other neutral non-discriminatory redistricting criteria that the Supreme Court has endorsed in one person-one vote cases.” Id. at n.3.
Vieth v. Jubelirer, No. 02-1580, 541 U.S. 267 (Apr. 28, 2004)
The U.S. Supreme Court affirmed the judgment of the district court. Justice Scalia, joined by the Chief Justice, Justice O’Connor, and Justice Thomas, concluded that political gerrymandering claims are nonjusticiable because no judicially discernible and manageable standards for adjudicating these claims exist. They would therefore overrule Davis v. Bandemer, 478 U.S. 109 (1986), in which the Court held that political gerrymandering claims are justiciable, but could not agree on a standard for assessing them.
Justice Kennedy concurred in the judgment, agreeing that there are currently no manageable standards for measuring whether a political gerrymander burdens the representational rights of a party’s voters, but not wanting to foreclose the possibility of finding a limited and precise rationale for correcting a proven constitutional violation. He suggested exploration of the First Amendment as a possible basis for analyzing a partisan gerrymander, looking for whether a redistricting plan burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association.
Writing separately in dissent, Justices Stevens, Souter, and Breyer each proposed a different standard for adjudicating political gerrymandering claims. Justice Breyer suggested that the differing standards did not mean that no constitutional standard could be developed, but rather that they served to stimulate further discussion that might result in a majority agreeing on a standard in some future case.
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Legislative Reference Bureau
641 Main Capitol Building
Harrisburg, PA 17120-0033
Parella v. Irons, No. 02-4578 (Providence Superior Ct. Oct. 8, 2003), aff’d sub nom. Parella v. Montalbano, No. 2003-595 (R.I. June 9, 2006)
A 1994 amendment to the Rhode Island Constitution reduced the number of senators from 50 to 38 and the number of representatives from 100 to 75, effective for the members taking office in January 2003. The 2001 General Assembly created a Reapportionment Commission to recommend Senate, House, and congressional plans to the General Assembly, in accordance with standards of equal population, compactness, contiguity, communities of interest, and fair representation set forth in the law. 2001 R.I. Pub. Law ch. 315 (July 13, 2001). The 2002 General Assembly enacted legislative plans as 2002 R.I. Pub. Law ch. 4 (Feb. 20, 2002), coded as R.I. Gen. Laws 1956 § 22-1-2 (Senate districts) and § 22-2-2 (House districts). Plaintiffs residing in four Senate districts challenged the Senate plan as failing to meet the constitutional mandate that districts be “as compact in territory as possible.” R.I. Const. art. 8, § 1. They argued that their four districts did not follow natural, historic, geographic, or political lines, as required by 2001 R.I. Pub. Law ch. 315, § 2. The trial court placed upon plaintiffs the burden of proving beyond a reasonable doubt that the statute violated the constitution, as would be appropriate in any case challenging the constitutionality of a statute. The trial court concluded that “[t]he compactness clause is violated ‘only when a reapportionment plan creates districts solely for political considerations, without reference to other policies, in such a manner that the plan demonstrates a complete abandonment of any attempt to draw equal, compact and contiguous districts.’” (quoting Holmes v. Farmer, 475 A.2d 976, 986 (R.I. 1984)). The trial court held that the plan did not violate the compactness requirement.
On June 9, 2006, the Supreme Court of Rhode Island affirmed the judgment of the trial court.
Joseph A. Montalbano
President of the Senate
318 State House
Providence, Rhode Island 02903
Colleton County Council v. McConnell, No. 3:01-CV-3581, 201 F. Supp.2d 618 (D. S.C. Mar. 20, 2002)
The complaint alleged that, the governor having vetoed on August 31, 2001, the legislative and congressional redistricting plans passed by the General Assembly, and the General Assembly having failed to override the vetoes, the legislative process was at an impasse. It requested the court to enjoin the further use of the existing districts and draw new legislative and congressional districts for use in the 2002 elections. On March 20, 2002, the court adopted legislative and congressional plans. On April 18, 2002, the court issued an order clarifying that two special elections, one for the state House and one for the state Senate, should be conducted under the old redistricting plan, not the new one.
John P. Hazzard, V
Chief of Staff and Counsel
President Pro Tempore and Senate Judiciary Committee
P.O. Box 142
Columbia SC 29202-0142
Senior Staff Counsel
Senate Judiciary Committee
P.O. Box 142
Columbia, SC 29202-0142
Charles F. Reid
House of Representatives
Director, Office of Research & Statistics
Budget & Control Board
1000 Assembly Street Suite 425
Columbia, SC 29201-3117
Bone Shirt v. Hazeltine, No. CIV 01-3032, 200 F. Supp.2d 1150 (D. S.D. May 2, 2002)
The complaint alleged that the legislative redistricting plan enacted by the Legislature in 2001 had not been precleared under § 5 of the Voting Rights Act, even though preclearance was required. It alleged that the plan violated § 2 of the Voting Rights Act by packing American Indians into Senate District 27, where they were 86 percent of the voting-age population, when they were “sufficiently numerous and geographically compact that they would constitute a majority in one or more Senate districts and one or more single-member House districts.” A three-judge federal district court enjoined the State from implementing the 2001 plan for Senate District 27 and mandated the State to submit the plan for preclearance within 30 days.
Bone Shirt v. Hazeltine, No. Civ. 01-3032, 336 F. Supp.2d 976 (D. S.D. Sep. 15, 2004)
After a nine-day trial, the court found that the plan violated § 2 of the Voting Rights Act as alleged by plaintiffs and gave the Legislature 45 days to submit remedial proposals consistent with the opinion for consideration by the court and to brief the issue of whether defendants should be permanently enjoined from enforcing the 2001 plan in future elections, not including 2004.
Bone Shirt v. Hazeltine, 2005 SD 84, 700 N.W.2d 746 (S.D. June 29, 2005)
The State rejected the opportunity to draw a new plan and asked the federal district court to certify to the South Dakota Supreme Court the question of whether the Legislature had the power to redistrict the state in a non-census year. The state Supreme Court ruled the Legislature did have that power.
Bone Shirt v. Hazeltine, No. Civ. 01-3032, 387 F. Supp.2d 1035 (D. S.D. Aug. 18, 2005), aff’d No. 05-4010 (8th Cir. Aug. 22, 2006)
When the State informed the federal district court that it would not propose a remedial plan, the court adopted a plan submitted by the plaintiffs. The plan reduced the American Indian voting-age population in District 27 from 86 percent to 65.56 percent and divided the adjacent District 26 into a new House District 26A with 74.36 percent American Indian voting-age population and District 26B with a majority-white population. The plan continued House District 28A with a majority-Indian population. It thus increased from four to five the number of Indian-preferred candidates who were likely to win seats in the Legislature.
Bone Shirt v. Hazeltine, No. 05-4010 (8th Cir. Aug. 22, 2006)
The Court of Appeals affirmed the finding of the district court that the legislative plan violated § 2 of the Voting Rights Act, the remedial plan adopted by the district court, and the finding of the district court that its plan need not be precleared under § 5 of the Voting Rights Act before taking effect.
Rueben B. Bezpaletz
Chief of Research and Legal Services
Legislative Research Council
Pierre, SD 57501-5070
Crone v. Darnell, 2001 WL 1589601, 176 F. Supp.2d 814 (W.D. Tenn. 2001)
The complaint alleged that the 2000 census showed that the current senate, house, and congressional districts were malapportioned, that the Tennessee General Assembly had adjourned its regular session on August 7, 2001, and was not scheduled to reconvene until January 8, 2002. It alleged that the filing deadline was April 4, 2002, that the primary was scheduled for August 1, 2002, and the general election for November 5, 2002. It alleged that plaintiff qualified electors had a right under the U.S. Constitution and federal law to have new districts drawn 90 days before the filing deadline. It requested the court to enjoin further use of the current districts and adopt a new redistricting plan. The three-judge court found that there was no federal right to 90 days notice of new district boundaries and dismissed the complaint for failure to state a claim on which relief could be granted.
Office of Legal Services
G-10 War Memorial Building
Nashville, TN 37243-0059
Morales v. Daley, 116 F. Supp.2d 801 (S.D. Tex. 2000)
The court found that Census 2000 does not invade individual privacy in violation of the constitution.
Brown v. Perry, No. GN100812 (261st Dist. Ct., Travis County, complaint filed Mar. 16, 2001)
The complaint alleged that the 2000 census showed that the current state senate and house districts were malapportioned. It requested the court to declare the current districts invalid, enjoin their use in future elections, set reasonable deadlines for state authorities to enact or adopt new plans, and draw plans if the state authorities failed to do so.
Mayfield v. State, No. 8-00CV268-DF (E.D. Tex. Apr. 26, 2001)
The complaint alleged that the current congressional districts were malapportioned because Texas would increase from 30 to 32 seats as a result of the 2000 census and the Legislature would fail to redraw them, and that population estimates by the Texas Legislative Council showed current districts were malapportioned. It requested the court to establish a deadline for the Legislature to act and to draw a plan if the Legislature failed. A three-judge panel dismissed the complaint. It found that plaintiffs did not have standing to challenge the constitutionality of the current districts, since there was no certainty the districts would be used for any future election and therefore no certainty that plaintiffs would ever be harmed by them. It also found that the plaintiffs’ request to establish a deadline for the Legislature to act was not ripe, since the Legislature had only recently received the block population counts and was working to enact a plan.
Lee v. State, No. 6:01CV98 (E.D. Tex. Apr. 26, 2001)
The complaint, as amended March 13, 2001 (the day after Texas received its 2000 population data), alleged that the current congressional, senate, and house districts were malapportioned based on the 2000 census and that, if the Texas Legislature failed to enact new plans the court’s intervention might be necessary. It requested the court to declare the current districts invalid, enjoin their use in future elections, set a deadline for state authorities to enact or adopt new plans, and draw plans if the state authorities failed to do so. A three-judge panel dismissed the complaint. It found that plaintiffs did not have standing to challenge the constitutionality of the current districts, since there was no certainty the districts would be used for any future election and therefore no certainty that plaintiffs would ever be harmed by them. It also found that the plaintiffs’ request to establish a deadline for the Legislature to act was not ripe, since the Legislature had only recently received the block population counts and was working to enact a plan.
Associated Republicans of Texas v. State, No. W-01-CA-083 (W.D. Tex. May 8, 2001)
The complaint alleged that the 2000 census would show that the current congressional, senate, and house districts were malapportioned. It requested the court to declare the current districts invalid, enjoin their use in future elections, and set reasonable deadlines for the Legislature to enact new plans. A three-judge panel dismissed the complaint. It found that plaintiffs did not have standing to challenge the constitutionality of the current districts, since there was no certainty the districts would be used for any future election and therefore no certainty that plaintiffs would ever be harmed by them. It also found that the plaintiffs’ request to establish a deadline for the Legislature to act was not ripe, since the Legislature had only recently received the block population counts and was working to enact a plan.
Mayfield v. State, No. 6:01-CV-218 (E.D. Tex., complaint filed May 14, 2001) consol. with Balderas v. State
Associated Republicans of Texas v. Cuellar, No. 2001-26894 (281st Dist. Ct., Harris County, complaint filed May 24, 2001) abated by Perry v. Del Rio
Associated Republicans of Texas v. State, No. W-01-CA-167 (W.D. Tex., complaint filed May 25, 2001) consol. with Balderas v. State
Manley v. State, No. 6:01-CV-231 (E.D. Tex., complaint filed May 28, 2001) consol. with Balderas v. State
Cotera v. Perry, No. GN-101660 (353rd Dist.Ct., Travis County, complaint filed May 31, 2001) consol. with Del Rio v. Perry
Rivas v. Cuellar, No. 2001-33760 (152nd Dist. Ct., Harris County, complaint filed Jul. 3, 2001) consol. with Associated Republicans of Texas v. Cuellar
Anderson v. State, No. W-01-CA-214 (W.D. Tex., complaint filed July 6, 2001) consol. with Balderas v. State
Connolly v. Perry, No. GN-102250 (98th Dist. Ct., Travis County, complaint filed July 23, 2001) consol. with Del Rio v. Perry
Perry v. Del Rio, 2001 WL 1044910, 66 S.W.3d 239 (Tex. Sep. 12, 2001) Opinion, Dissent
The complaint was filed December 27, 2000, the day before state reapportionment numbers were released by the Census Bureau, in Travis County district court in Austin. It alleged that the current congressional districts were malapportioned because Texas would increase from 30 to 32 seats as a result of the 2000 census and the Legislature would fail to redraw them, and that population estimates by the Texas Legislative Council showed that the current districts were malapportioned. It requested the court to establish a deadline for the Legislature to act and to draw a plan if the Legislature failed.
The Legislature adjourned sine die on May 28, 2001, without redrawing either legislative or congressional districts. On May 31, the complaint was amended to allege these new facts and a new suit, Cotera v. Perry was also filed in Travis County district court. On July 3, 2001, the Governor announced his intention not to call a special session to consider redistricting “at this time.”
By the end of July, two other suits, Associated Republicans of Texas and Rivas v. Cuellar, had been filed in Harris County district court in Houston, and five suits had been filed in federal district court, all making similar claims and demanding similar relief.
After a summer of motions and appeals challenging the jurisdiction of the various courts over the various suits on ripeness and other grounds, the Supreme Court of Texas ruled that the Travis County district court had the dominant jurisdiction, even though the Del Rio case was not ripe at the time it was filed, since it became ripe before it was decided and its complaint was the first to be amended or filed after the case became ripe. The case became ripe only after the census data were released on March 12, 2001, and the Legislature adjourned sine die on May 28, 2001, without enacting a plan. The court ordered the cases in Harris County district court to be abated.
Perry v. Del Rio, 2001 WL 1285081, 45 Tex. Sup. Ct. J. 52, 67 S.W.3d 85 (Oct. 19, 2001) Opinion, Concur (Owen), Concur (Rodriguez, Enoch, Jefferson), Dissent (Phillips, Hankinson), Dissent (Hecht)
Following the September 12, 2001, decision of the Supreme Court that the Travis County court had dominant jurisdiction, the trial court considered a number of congressional redistricting plans submitted by the various parties. On October 3, 2001, the trial court announced its intent to adopt Plan 1065C, which it made available for public inspection on the Legislature’s redistricting Web site, and gave the parties until October 9 to file comments and proposed changes. Sometime after 10:00 a.m. on October 10, the court notified the parties by facsimile that it was “seriously considering” adopting certain changes proposed by the Speaker of the Texas House. The court explained the changes but did not make available to the parties a map showing them, and gave the parties until 12:00 noon to respond. Later that day, the court adopted a plan named Plan 1089C, which the court said incorporated changes submitted by the parties.
On October 19, 2001, the Texas Supreme Court ruled that the trial court had violated the rights of the parties under art. I, § 19 of the Texas Constitution not to be “deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land,” because it had failed to give the parties an opportunity for a meaningful hearing on the plan finally adopted, when the changes from the plan it initially proposed to adopt were extensive and significant. The Court vacated the judgment and remanded the case to the trial court for further proceedings.
Balderas v. State, No. 6:01-CV-158 (E.D. Tex. Nov. 14, 2001) (congressional plan), aff’d 536 U.S. 919 (June 17, 2002) (No. 01-1196) (mem.)
The complaint, filed April 12, 2001, alleged that the current legislative and congressional districts were malapportioned. On July 6, 2001, a three-judge court deferred to the state court proceedings scheduled for September and ordered the cases abated until October 1, 2001, with a trial date set for October 15, 2001. When the state court proceedings extended beyond that date, the federal court further delayed action until October 22.
On October 10, the Travis County district court in Del Rio v. Perry adopted a congressional plan, which the Texas Supreme Court vacated on October 19, 2001, because it found the trial court had violated the rights of the parties under the state constitution to have a meaningful hearing before the plan was adopted.
The three-judge court commenced trial on October 22. After considering the submissions of the parties, the court drew a plan of its own. It first modified the majority-minority districts protected by the Voting Rights Act, then located a new district in suburban Dallas and a new district in suburban Houston, and then redrew the rest of the state, making the districts mathematically equal and compact while splitting as few counties and cities as possible. The court then reviewed the districts to see whether they might be “avoidably detrimental” to the three incumbent Republicans and three incumbent Democrats holding “substantial leadership positions” in the Congress. They were not. Next, the court reviewed its plan against a partisan index of the votes cast for the candidates of the Republican and Democratic parties at the 2000 general election for Congress and determined that the plan was “likely to produce a congressional delegation roughly proportional to the party breakdown across the state.” The court rejected requests to create minority opportunity districts, i.e., districts with a sizeable number but less than an effective voting majority of either African Americans or Hispanics, saying that was a proper concern of the legislative process but not for the courts.
Balderas v. State, No. 6:01-CV-158 (E.D. Tex. Nov. 28, 2001) (Senate plan) (House plan), aff’d sub nom. Mayfield v. Texas, No. 01-1126, Mexican American Legislative Caucus— Texas House of Representatives v. Texas, No. 01-1225, Amps v. Texas, No. 01-1242, 536 U.S. 919 (U.S. June 17, 2002) (mem.)
Following the failure of the state legislature to adopt a redistricting plan for the Senate, the Legislative Redistricting Board adopted a plan on July 24, 2001. On October 15, 2001, the plan was precleared by the U.S. Department of Justice. Plaintiffs attacked the plan for failure to draw additional Latino majority districts in South Texas and in Dallas and Tarrant counties, and for failure to draw minority “influence” districts in Dallas, Harris, Tarrant, and Jefferson counties. Amicus curiae Texas NAACP argued to a third African-American opportunity district in Harris county. The three-judge court found that it was not possible to create additional effective majority districts without diluting existing majority-minority districts. The court declined to find any necessity to create minority “influence districts.” It also found the evidence insufficient to establish that African Americans and Latinos voted cohesively enough to constitute a majority in a single-member district. In a concurring opinion, Judge Hannah expressed “shock” at the way the State of Texas had disregarded traditional districting principles such as compactness, respect for political subdivisions, and respect for communities of interest in drawing Senate and House district boundaries, but concurred that the plans did not violate federal law.
The plan for the House of Representatives had likewise been drawn by the Legislative Redistricting Board on July 24, 2001, but on November 16, 2001, the U.S. Department of Justice objected to the plan as causing a retrogression with respect to the number of Hispanic opportunity districts. The three-judge court found that the State could not have created additional Latino majority districts without risking retrogression in existing Latino majority districts. The court found the evidence insufficient to show that African Americans, Latinos, and Asians had voted sufficiently cohesively to constitute a majority in a single-member district and therefore declined to create an African-American opportunity district in Tarrant County. The court modified the plan to address the objections raised by the Justice Department and adopted it as the court’s own. Notwithstanding that the plan adopted by the court “unavoidably bears some resemblance to plans submitted by the parties in certain areas,” the court asserted that the plan was a judicial plan entirely of its own making and therefore “not subject to the preclearance requirements of Section 5 of the Voting Rights Act.”
Session v. Perry, No. 2:03-CV-354, 298 F. Supp.2d 451 (E.D. Tex. Jan. 6, 2004), vacated and remanded sub nom. Jackson v. Perry, 543 U.S. 941 (Oct. 18, 2004) (No. 03-1391 et al.) (mem.)
The 2002 election for congressional seats was run under the plan adopted by the federal district court in Balderas v. State, No. 6:01-CV-158 (E.D. Tex. Nov. 14, 2001). In 2003, the Texas Legislature attempted to pass a new congressional plan during its regular session and two special sessions, and succeeded during its third special session, enacting H.B. No. 3, Plan 1374C, on October 13, 2003. Plaintiffs alleged that Plan 1374C was invalid because “(1) Texas may not redistrict mid-decade; (2) the Plan unconstitutionally discriminates on the basis of race; (3) the Plan is an unconstitutional partisan gerrymander; and (4) various districts in Plan 1374C dilute the voting strength of minorities in violation of § 2 of the Voting Rights Act.” The three-judge court rejected the challenges.
Henderson v. Perry, No. 2:03-CV-354-TJW, 399 F. Supp.2d 756 (E.D. Tex. June 9, 2005), prob. juris. noted sub nom. League of United Latin American Citizens v. Perry, No. 05-204 et al. (mem.) (Dec. 12, 2005), aff’d in part, rev’d in part, vacated in part, and remanded sub nom. League of United Latin American Citizens v. Perry, No. 05-204, 548 U.S. 399 (U.S. June 28, 2006)
On remand from the U.S. Supreme Court, the three-judge court again rejected the challenges.
League of United Latin American Citizens v. Perry, No. 05-204, 548 U.S. 399 (U.S. June 28, 2006)
On its return to the Supreme Court, the Court held that neither the U.S. Constitution nor any act of Congress prohibits a state from redrawing boundaries drawn earlier in the same decade. This is especially true when the earlier boundaries were drawn by a court, since the primary responsibility for drawing congressional districts lies with the state legislatures and the courts undertake the “unwelcome obligation” only when a state legislature defaults.
Justice Kennedy, joined by Justices Souter and Ginsberg, opined that plaintiffs had failed to state a claim with regard to political gerrymandering because they had failed to articulate a manageable standard by which political gerrymandering claims could be judged. The fact that the plan may have been adopted to secure a partisan advantage may help to show discriminatory intent, but it does not prove that the plan will have a discriminatory effect. The plurality was not convinced that the new plan would have a discriminatory effect. Rather, they noted that the new plan would give each party a number of seats that is closer to its share of the vote statewide than the old plan did. The plurality was wary of a “symmetry standard” that would measure a plan’s partisan bias by comparing how each of two parties would fare hypothetically if they each in turn had received a given percentage of the vote, since it was not based on the results of actual races under the plan. Chief Justice Roberts and Justice Alito agreed that the political gerrymander attack had failed, but chose not to decide whether that was because plaintiffs had failed to state a claim or because a political gerrymandering claim is not justiciable. Justices Scalia and Thomas reiterated that, in their view, political gerrymandering claims are not justiciable.
The Court, in an opinion by Justice Kennedy, joined by Justices Stevens, Souter, Ginsberg, and Breyer, held that Congressional District 23 violated § 2 of the Voting Rights Act. The Court noted that, before the 2003 redistricting, District 23, which runs from the outskirts of El Paso southeast to Laredo 540 miles away and takes in part of San Antonio, had a Latino citizen voting-age population of 57.5 percent, and that the incumbent, Republican Henry Bonilla, had received only 8 percent of the Latino vote in the 2002 election and won with 51.5 percent of the total vote. The new plan shifted nearly 100,000 people out of District 23 in an area that was 94 percent Latino, reducing the Latino share of the citizen voting-age population in the district to 46 percent, in an effort to prevent the emerging Latino majority from electing a representative of their choice. To compensate for the loss of this Latino population, the State created a new Congressional District 25 to add the Latino population of Austin to the Latino population of McAllen, 300 miles south on the Mexican border. But the Court found that creating a Latino-majority district from two Latino populations that were not compact, both because they were 300 miles apart and because they were “disparate communities of interest” with “differences in socio-economic status, education, employment, health, and other characteristics,” did not compensate for dismantling District 23, where the Latino population was compact, in the sense that it did not have divergent needs and interests.
Justice Kennedy, joined by Chief Justice Roberts and Justice Alito, rejected the § 2 challenge to Congressional District 24 in the Dallas area. They found that African Americans were only 25.7 percent of the citizen voting-age population of District 24 before it was redrawn and that, even with the assistance of cross-over votes, their population was not sufficiently large to elect a candidate of their choice. The fact that they had consistently voted for the incumbent did not make him their candidate of choice. Justices Scalia and Thomas reiterated that, in their view, redistricting plans are not subject to challenge under § 2.
League of United Latin American Citizens v. Perry, No. 2:03-CV-354, 457 F. Supp.2d 716 (E.D. Tex. Aug. 4, 2006) (opinion) (order) (maps)
On remand from the U.S. Supreme Court, the district court redrew five congressional districts in southwest Texas. The Latino citizen voting-age population of District 23 was increased from 46 percent to 57.4 percent, almost the 57.5 percent it had been under the court-drawn plan of 2001, by adding portions of Bexar County (San Antonio area). The court then made conforming changes to adjacent districts. District 25 was confined to the area east of San Antonio, rather than running from the Rio Grande to Austin. District 15, which likewise had run from the Rio Grande almost to Austin, was terminated at the southern border of District 25.
All incumbents were retained in their old districts. A special election for the five altered districts was set to be held concurrently with the general election on November 7, 2006.
Northwest Austin Municipal Utility Dist. No. 1 v. Mukasey, No. 06-1384, 573 F. Supp.2d 221 (D.D.C. May 30, 2008), rev’d Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder, No. 08-322, 557 U.S. ____ (June 22, 2009)
Plaintiff, a municipal utility district in Texas, a covered jurisdiction, sought a declaratory judgment exempting it from § 5’s “preclearance” obligation. In the alternative, plaintiff challenged § 5’s constitutionality, arguing that when Congress extended the provision in 2006 it lacked sufficient evidence of racial discrimination in voting to justify the provision’s intrusion upon state sovereignty. A three-judge federal court rejected both claims. First, plaintiff was ineligible to seek a declaratory judgment exempting it from § 5 because it did not qualify as a “political subdivision” as defined in the Voting Rights Act. Second, applying the standard set forth by the Supreme Court in South Carolina v. Katzenbach, 383 U.S. 301 (1966), the Court concluded that, given the extensive legislative record documenting contemporary racial discrimination in voting in covered jurisdictions, Congress’s decision to extend § 5 for another twenty-five years was rational and therefore constitutional. Alternatively, the Court concluded that § 5’s extension was constitutional even if, as plaintiff argued, its challenge was controlled by the stricter standard set forth in City of Boerne v. Flores, 521 U.S. 507 (1997). Given § 5’s tailored remedial scheme, the extension qualified as a congruent and proportional response to the continuing problem of racial discrimination in voting.
Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder, No. 08-322, 557 U.S. ____ (June 22, 2009)
On appeal, the U.S. Supreme Court reversed. It expressed serious doubt that § 5's “current burdens [were] justified by current needs,” slip op. at 6-11, but avoided the constitutional issue by permitting the utility district to escape those burdens by “bailing out” of the preclearance requirement, slip op. at 11-17.
Section 4(b) of the Voting Rights Act authorizes a State or political subdivision to bail out of coverage by § 5 by petitioning the U.S. District Court for the District of Columbia for a declaratory judgment that it had not engaged in prohibited discrimination for the preceding ten years. Section 14(c)(2) defines a political subdivision as a county or parish or another subdivision that conducts registration for voting. Since the municipal utility district did not fit that definition, the district court had denied bailout. The Supreme Court reversed, saying that “specific precedent, the structure of the Voting Rights Act, and underlying constitutional concerns compel a broader reading of the bailout provision.” Slip op. at 12. The Court found that amendments to § 4 made in 1982 had the effect of broadening the meaning of “political subdivision” in that section to include all political subdivisions of a State, including municipal utility districts that do not register voters. Slip op. at 14-16. It remanded the case to the district court for further proceedings consistent with the opinion. Slip op. at 17.
Manager, Mapping and Redistricting
Austin, TX 78711-2128
Texas Legislative Council
P.O. Box 12128
Austin, TX 78711-2128
Utah v. Evans, 143 F. Supp.2d 1290 (D. Utah Apr. 17, 2001), aff’d 534 U.S. ____ (Nov. 26, 2001) (No. 01-283) (mem.)
A three-judge panel dismissed a complaint that the Census Bureau erred in failing to count Mormon missionaries among U.S. residents overseas, thus causing Utah to lose one congressional seat to North Carolina.
Utah v. Evans, 143 F. Supp.2d 1290 (D. Utah Apr. 17, 2001),aff’d 536 U.S. ____ (June 20, 2002) (No. 01-714)
A three-judge panel dismissed a complaint that the Census Bureau erred in estimating the size of one household based on that of its neighbors when census workers repeatedly failed to find anyone home. The U.S. Supreme Court affirmed, holding that the “imputation” used by the Census Bureau in this case was different from the “sampling” prohibited by the Court in Department of Commerce v. United States House of Representatives, 525 U.S. 316 (1999), since it was attempting to determine the characteristics of missing individual data rather than extrapolating data from a sample to the whole population.
John Q. Cannon
In re Reapportionment of Towns of Woodbury and Worcester, 2004 VT 92, 177 Vt. 556, 861 A.2d 1117 (Sep. 13, 2004)
Petitioners, citizens of the towns of Woodbury and Worcester, challenged the Legislature’s 2002 reapportionment of voting districts for the Vermont House of Representatives on the ground that placement of their towns in the new Lamoille-Washington-1 district violated the requirement of Vt. Const. ch. II, § 13, that the Legislature “seek to maintain geographical compactness and contiguity and to adhere to boundaries of counties and other existing political subdivisions,” and the requirement of 17 V.S.A. § 1903(b)(1)-(2) that “districts shall be formed consistent with the following policies insofar as practicable:
(1) preservation of existing political subdivision lines;
(2) recognition and maintenance of patterns of geography, social interaction, trade, political ties and common interests. . . ..”
The court noted that petitioners had not come forward with a better plan, since the plan they preferred had been considered by the Legislature and found to have more towns objecting to it than the plan adopted. It found that petitioners had not met the heavy burden required to successfully challenge a legislative reapportionment plan.
115 State St.
Montpelier, VT 05633-5301
Virginia v. Reno, No. 1:00CV00751 , 117 F. Supp.2d 46 (D. D.C. Oct. 18, 2000) (three-judge panel), aff’d Virginia v. Reno ___ U.S. ____ (Jan. 8, 2001) (No. 00-862) (mem.)
The state’s request to preclear law barring use of census data compiled in part through sampling and statistical methods for congressional and state redistricting was dismissed as premature, pending release of census counts.
West v. Gilmore, No. CH01-84 (Cir. Ct., City of Salem, Mar. 11, 2002), rev’d sub nom. Wilkins v. West, No. 021003 (Nov. 1, 2002)
The complaint alleged that the 2001 House and Senate redistricting plans segregated voters on the basis of race and packed minority voters into just a few districts, in violation of the Voting Rights Act, the Equal Protection Clause of the Fourteenth Amendment, and the Virginia Constitution. It alleged that the majority-minority districts were bizarrely shaped, were not compact, and did not respect the boundaries of political subdivisions or communities of interest, and that some were contiguous only by water. The complaint alleged that both House and Senate plans were partisan gerrymanders that ignored communities of interest and paired high-profile Democratic leaders, in violation of the Free Speech protections of the Virginia Constitution. It alleged that the plans discriminated against women by pairing more women than men incumbents and by changing their district boundaries more than those of men, in violation of the Virginia Constitution’s prohibition against discrimination on the basis of gender.
Trial was held on September 20-22, 2001. At the conclusion of the trial, Judge Richard C. Pattisall ruled that the November 6, 2001, election for the House of Delegates should proceed on the basis of the new districts. Nominations had been completed on the basis of the new plan. There simply was not enough time to draw new districts or to reinstate the predecessor House districts for the pending November election. Judge Pattisall took the case under advisement, saying he would focus on issues involving racial gerrymandering, compactness, and contiguity. He said he would issue his ruling and opinion in the near future.
On March 11, 2002, the court struck down the General Assembly’s 2001 House and Senate redistricting plans and ordered new elections for the House of Delegates in 2002. It found that three senate districts and three house districts were not composed of “contiguous and compact territory” as required by the state constitution. It found that the 2001 criterion adopted by the General Assembly, that “contiguity by water is permissible,” was contrary to the state constitution because it omitted the proviso from 1991 that, with contiguity by water, there still must be a “reasonable opportunity for travel within the district.” The court found that six senate districts were drawn along racial lines and packed as many minority voters as possible into just a few districts in order to minimize their political influence. Five of them had a Black voting age population of more than 55 percent, a percentage that in past elections had enabled minority candidates of choice to win by landslide proportions. The court found that 12 house districts were drawn along racial lines and discriminated against Blacks by packing them into districts more than necessary to give them a reasonable opportunity to elect a candidate of their choice.
Wilkins v. West, No. 021003, 264 Va. 447, 571 S.E.2d 100 (Nov. 1, 2002)
The Supreme Court of Virginia vacated the judgment of the trial court as to certain districts because no plaintiff resided in them and thus lacked standing to sue. It reversed the judgment of the trial court holding that certain districts violated the requirement of the Virginia Constitution, art. II, § 6, that districts be “composed of contiguous and compact territory,” and reversed the judgment of the trial court holding that certain districts violated the equal protection requirements of the Virginia Constitution, art. I, § 1 and the racial anti-discrimination requirements of art. I, § 11. The court opined that, where parts of a district are separated by water, “physical access is not necessary for exercising the right to vote, does not impact otherwise intact communities of interest, and, in today's world of mass media and technology, is not necessary for communication among the residents of the district or between such residents and their elected representative.” Slip op. at 17, 264 Va. at 463, 571 S.E.2d at 109. It found that the choices made by the General Assembly in balancing the various constitutional requirements, including that districts be composed of contiguous and compact territory, were fairly debatable and thus entitled to deference by the courts. The court opined that the racial anti-discrimination requirements of art. I, § 11 were the same as those of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and that to prove a violation complainants must show that race was the predominant factor in drawing the districts. It found that the “districts also were drawn with attention to such factors as population equalization, compactness and contiguity, retention of core districts where possible, and enhancement of communities of political interest,” and that the complainants had failed to carry their “heavy burden” to show that race predominated in drawing the districts. Slip op. at 36-37, 264 Va. at 474, 571 S.E.2d at 115.
Hall v. Warner, No. CH02-100 (Cir. Ct., City of Petersburg, complaint filed Apr. 17, 2002)
The complaint alleged that Virginia’s Fourth Congressional District, as enacted in 2001, violated § 2 of the Voting Rights Act because it diluted minority votes and significantly impacted the ability of African American voters to elect a candidate of their choice.
Hall v. Virginia, No. 2:03cv151 (E.D. Va. Aug. 7, 2003), aff’d 385 F.3d 421 (4th Cir. Sep. 22, 2004)
The complaint alleged that Virginia’s Fourth Congressional District, as enacted in 2001 and precleared by the Department of Justice, violated § 2 of the Voting Rights Act because it diluted minority votes and significantly impacted the ability of African American voters to elect a candidate of their choice. Plaintiffs did not seek to redraw the district as a majority-minority district, but rather to increase the African American population from 33.6 percent of the total population to about 40 percent of the total population, roughly the same as before the district was redrawn. Against the argument that no court had previously held that § 2 of the Voting Rights Act required the creation of a minority “influence” district where the minority population was not sufficiently large to form a majority in a single-member district, plaintiffs argued that they sought the creation of a minority “coalition” district, which they defined as one where the votes of blacks would combine with the crossover votes of whites to elect the black candidate of choice. The court held that § 2 did not require the creation of either “influence” or “coalition” districts and dismissed the complaint.
Robert J. Austin
Section Manager of Special Projects
Division of Legislative Services
910 Capitol Street, 2nd Floor
Richmond, VA 23219
No cases reported to this service.
Senate Republican Caucus
P.O. Box 40482
Olympia, WA 98504-0482
Senate Democratic Caucus
P.O. Box 40464
Olympia, WA 98504
Assistant Director of Elections
Office of the Secretary of State
Redistricting Project Analyst
Office of the Secretary of State
P.O. Box 40229
Olympia, WA 98504-0229
Redistricting Project Analyst
Office of the Secretary of State
P.O. Box 40229
Olympia, WA 98504-0229
Deem v. Manchin, No. 3:01cv75, 188 F. Supp.2d 651 (N.D. W. Va. Dec. 27, 2001), aff’d sub nom. Unger v. Manchin, 536 U.S. 935 (June 24, 2002) (No. 01-1600) (mem.)
The complaint alleged that the Senate districts created by House Bill 511, enacted September 19, 2001, violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution because the smallest district was 10.92 percent smaller than the largest district. A complaint in intervention alleged that the House districts created by House Bill 511 violated the “three-fifths rule” in Article VI, § 6 of the West Virginia Constitution, which requires that a county containing less than three-fifths of the ideal population for a House of Delegates district be attached to a contiguous county to form a House of Delegates district.
On a motion for summary judgment, a three-judge court dismissed both complaints. The West Virginia Constitution, Article VI, § 4, requires that Senate districts be “bounded by county lines.” Article VI, § 4, requires that each Senate district be given two senators and that, if more than one county is included in the district, the two senators reside in different counties. Since 1977, the Legislature had found and declared that it was not possible to avoid dividing counties and also meet federal constitutional requirements for equal population. In House Bill 511, the Legislature articulated its redistricting principles as: recognizing established political subdivision lines; making senatorial districts as compact as possible, consistent with equality of population; forming each district of contiguous territory; maintaining communities of interest; and crossing county lines only when necessary to preserve the other stated goals. The court found the Legislature’s decision to put two Senate districts in Kanawha County and keep it whole but slightly underpopulated, rather than adding a few people to bring it up to the ideal size and having one senator reside in the county with only a few people in the district, was “a rational legislative choice” in keeping with the Legislature’s stated goals. The court dismissed the complaint against the House of Delegates districts as not raising a federal question and not linked to the federal claim against the Senate districts.
Legislative Automated Systems Division
Building 1, Room MB48
1900 Kanawha Blvd. East
Charleston, WV 25305-0250
Arrington v. Elections Board, No. 01-C-121 (E.D. Wis. Nov. 28, 2001)
The complaint alleged that population shifts had rendered Wisconsin’s congressional districts no longer “as equal in population as practicable,” that Wisconsin had gone from nine seats to eight, and that since the state Senate was controlled by Democrats and the Assembly was controlled by Republicans, the Legislature would fail to redraw the districts to meet constitutional requirements. It requested appointment of a three-judge panel, an injunction against further use of the unconstitutional districts, and that the court draw a plan if the Legislature failed to do so. On November 28, 2001, the three-judge panel found that plaintiffs had standing to bring the suit and that it was sufficiently ripe not to be dismissed. Nevertheless, the court stayed its proceedings until February 1, 2002, in order to give the Legislature an opportunity to do its constitutional duty. It set December 19, 2001, as the deadline for parties to submit their proposed schedules for the action and January 7, 2002, as the date for a status/planning conference. One judge dissented, saying that the suit was premature until the Legislature had either passed an invalid plan or failed to act in time to hold an election in November 2002. He refused to take part in further proceedings until a new complaint was filed.
On March 26, 2002, the Governor signed AB711, creating new congressional districts.
Jensen v. Elections Board, No. 02-0057-OA, 2002 WI 13 (Wis. Feb. 12, 2002)
The Wisconsin Supreme Court denied a petition for leave to file an original action in the Supreme Court to declare the existing legislative and congressional districts invalid and draw new districts in the event of a legislative impasse, on the ground that the petition was submitted too late in the process. The federal court in Arrington was already well on its way to adopting a plan, should that be necessary, and for the state court to enter the “political thicket” would only put it “on a collision course with the case now pending before the federal three-judge panel.” Had the court’s jurisdiction been invoked earlier, “the public interest might well have been served by our hearing and deciding this case. As it stands, it is not.” The court sought to avoid both conflict and duplication of effort at taxpayers’ expense. The court scheduled a hearing for October 14, 2002, on proposed new rules for how it would exercise original jurisdiction in future redistricting cases.
Baumgart v. Wendelberger, No. 01-C-121 (E.D. Wis. May 30, 2002)
On May 22, 2002, the three-judge federal court issued its order adopting legislative districts, accompanied by maps. The court rejected all 16 plans submitted by the parties and amici and drew one of its own, beginning with the 1992 court-drawn plan and making modifications necessary to achieve population equality, using whole wards, cities, and counties. The court’s “maximum deviation” (overall range) was 1.48 percent. It preserved the cores of prior districts better than the plans submitted to it, split fewer municipalities, and had better compactness scores. Rather than determine whether § 2 of the Voting Rights Act required the creation of majority-minority districts, the court preserved the five African-American majority assembly districts, one African-American influence assembly district, and one Latino majority assembly district in Milwaukee County that had been drawn by the court’s predecessor in 1992. The court allowed the parties five days to review and comment on a draft plan before issuing the final plan. On May 30, 2002, the court issued an amended memorandum and order as its final plan. On July 11, 2002, the court issued an order making technical corrections to the plan.
Research and Information Services Manager
Madison, WI 53703
Senior Legislative Analyst
Legislative Reference Bureau
1 East Main Street, Suite 200
Madison, WI 53703
Tony Van Der Wielen
GIS Application Developer
Legislative Technology Services Bureau
17 West Main Street, Suite 200
Madison, WI 53703-3305
No cases reported to this service.
Dan J. Pauli
Legislative Service Office
Legislative Service Office
Room 213 State Capitol
Cheyenne, WY 82002
Kenneth F. Glover
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Update: October 2, 2009 (psw)