Posted by: dhalsim2 | 2010/05/06

Redistricting Law

I spent the past three days studying redistricting law including federal law, state law, the Voting Rights Act of 1965, and priorities among conflicting redistricting requirements.  These days of study have been immeasurably valuable for their clarification of requirements, because when it comes to redistricting, the redistricter has no right to change the law or disregard the law; it is imperative that the redistricter fully comply with existing law.  If a person doesn’t like the law and wants to change it, they can take their desire to the legislature or the courts, but changing the law is completely separate from the actual redistricting process.

So what did I learn?  Well, I already had a very comprehensive understanding of requirements for population equality, contiguity, compactness, respect for communities of interest, nesting of smaller district types within larger district types, and disregard for candidate residences and political party welfare.  What I hadn’t fully comprehended was the importance of race when it comes to redistricting.  I thought that an ideal redistricting plan is color-blind.  After much research, I found that I was wrong.  Color-blindness is not good enough.  Per the Voting Rights Act, a redistricting plan must be very mindful of race/ethnicity because a lack of awareness often disenfranchises minority voters.  A color-blind plan will often dilute the minority voice even if it isn’t intentional.  Even if there is no intent to dilute minority power, if there exists the effect of power dilution, the plan would be in violation of the Voting Rights Act.

I know that many will balk at this, because from a superficial perspective (as I previously had), it makes complete sense to be color-blind.  What becomes more apparent when researching the law and its history is that

  1. there are many jurisdictions (not just in the South) that have a history of intentionally or unintentionally reducing a minority voter’s voting power to a level below that of a majority voter
  2. when the minority voter’s voting power is maximized, it approaches and does not surpass the voting power of a majority voter

This leads to the following priority order among redistricting considerations:

  1. population equality
  2. race/ethnicity
  3. contiguity
  4. political geography (respect for boundary lines of cities, counties, etc.)
  5. compactness
  6. nesting (keeping two assembly districts in one senate district and ten senate districts in one board of equalization district)
  7. disregard for candidate residences

What this means is that a consideration higher on the list will trump a consideration lower on the list.

Here is more that I learned about redistricting law:

  • Concerning population equality, the difference between the highest populated district and lowest populated districts can be up to 10% as long as the reason for the discrepancy is not to disenfranchise.  If the reason is to respect communities of interest, there is no problem with discrepancies up to 10%.
  • For the purpose of district population, the population count includes everyone including children and both legal and illegal aliens.
  • For the purpose of the Voting Rights Act, counts refer to eligible voters only.
  • In compliance with Section 2 of the Voting Rights Act, district lines must be drawn, if possible,  such that a minority group can make up the majority (> 50%) of the district to prevent cracking, yet should not be drawn such that they unnecessarily constitute more than 50% to prevent packing.  In compliance with Section 2 of the Voting Rights Act, a redistricter must consider:
    • Do minority voters represent most of the voters in a concentrated area?
    • Do majority voters tend to vote for different candidates than minorities?
    • Is the minority population otherwise protected given the “totality of the circumstances”?

    If the answer to the first two questions are yes and the answer to the third is no, the redistricting plan should not dilute.  This means that the minority group should be treated as a distinct voting group from that of the majority and that an effort needs to be made to ensure that this group’s political voice isn’t drowned out by that of the majority.

  • While the purpose of Section 2 of the Voting Rights Act is progress for minority voters, the purpose of Section 5 of the Voting Rights Act is to prevent regression.  Multiple jurisdictions across the country have a history of disenfranchising minority voters.  These jurisdictions have additional restrictions on them when it comes to redistricting.  Most of these jurisdictions are states in the South, but in California, we have four counties that are subject to Section 5 restrictions.  These are Kings, Merced, Monterrey, and Yuba counties.  Per Section 5, any new plan can not put minorities in a worse situation than what they currently have.  To apply this standard, one must ask:
    • Is the new map intended to dilute minority voting power?
    • Does the new map have the effect of leaving minority voters worse off?

    What this means is that for jurisdictions that are subject to Section 5 restrictions, unless there is a mass exodus of minority voters, there must be at least as many minority districts as there have been in the past.  Once the district plan has been created for these jurisdictions, it must be submitted to the Department of Justice for approval before it can be put in place.  In practice, because the four California counties can not be properly analyzed in isolation, the district plan for the whole state must be submitted to the Department of Justice.

  • Contiguity is a fairly simple requirement.  What isn’t strictly defined is contiguity with islands.  Some may say that an island is contiguous to the mainland where there exist ferry routes.  Others may say that an island is contiguous based on mainland proximity.  Still others may say that an island can be considered contiguous to any part of the mainland that borders on the same body of water regardless of distance.  There is no legal standard to the contiguity of islands.
  • Districts must respect political boundaries, i.e., boundaries of cities, counties, neighborhoods, and communities of interest.  Note that this consideration is higher than the consideration for compactness and that if the political boundary has a non-compact shape, the district should have a non-compact shape.  “Neighborhood” is not strictly defined.  Sometimes cities define neighborhoods for their city.  There are also other sources for neighborhood data.  Frequently, data from one source does not conform with data from other sources.  Communities of interest are even less defined.
  • Compactness is an interesting consideration.  While most researchers measure compactness based on the shape of the districts boundaries, even before I did my legal research, I didn’t think that made the most sense.  It is really population distribution that determines compactness.  The location of imaginary lines is irrelevant.  What is relevant is the set of people that comprise the district.  My legal research confirms my understanding.  The state of California defines compactness by population distribution of a district and not by the shape of the district.
  • I had already known that two assembly districts should be nested in one senate district and that ten senate districts should be nested in one board of equalization district, but I had previously thought that this was a hard requirement.  My legal research revealed that this is among the lowest considerations when it comes to redistricting.
  • Lastly, I had previously thought that redistricting data came solely from the census.  This isn’t true.  Most of it does come from the census, but a redistricter also uses electoral data to determine if minority voters in a district vote differently than majority voters, geographic data to determine what areas are urban versus rural, etc., and data directly from public testimony to determine what neighborhoods and communities of interest that voters feel that they are a part of.

So as you can see, there is a lot more to redistricting than what one might learn about it in a high school government class.  Computer algorithms can certainly still aid in the redrawing of district lines, but there are many more inputs and complexities than existing algorithms can handle.

Sources of information include:

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Responses

  1. Thanks for the useful information!

  2. Failure to respect the utilitarian boundaries offered by three, four and five digit postal zip codes can only result in judicial intervention.

  3. Thanks for the comment, Jon. However, I must disagree. ZIP codes were created solely for mail delivery, not as any other representation of community. In fact, ZIP codes don’t actually have an “boundaries.” They are mail routes that on a map would look like lines and points. ZCTAs are boundary approximations based on ZIP codes, but they don’t represent a community any more than a ZIP code does.

  4. […] TMC’s research came up with a interesting article on redistricting and a little know term call…  But a question to ponder, is ‘gerrymandering’ actually occurring in the City Riverside?  Gerrymandering is a process and practice that attempts to establish a poltical advantage for a particular party or group by manipulating geographic boundries to create partisan or incumbent protected districts. […]

  5. Thanks for all the really specific information. I couldn’t find the specifics you enumerated about the VRA in the Act or the sources you listed, e.g.:

    “For the purpose of the Voting Rights Act, counts refer to eligible voters only.
    In compliance with Section 2 of the Voting Rights Act, district lines must be drawn, if possible, such that a minority group can make up the majority (> 50%) of the district to prevent cracking, yet should not be drawn such that they unnecessarily constitute more than 50% to prevent packing. In compliance with Section 2 of the Voting Rights Act, a redistricter must consider:
    Do minority voters represent most of the voters in a concentrated area?
    Do majority voters tend to vote for different candidates than minorities?
    Is the minority population otherwise protected given the “totality of the circumstances”?
    If the answer to the first two questions are yes and the answer to the third is no, the redistricting plan should not dilute. This means that the minority group should be treated as a distinct voting group from that of the majority and that an effort needs to be made to ensure that this group’s political voice isn’t drowned out by that of the majority.”

    Can you please point me to where you found this info? Thanks!

    • Hi Alec. That information doesn’t come from the VRA. It came from a law organization that the state brought in to educate Redistricting Commission applicants about the VRA and its application. I believe that they said those specific requirements came from precedents set by various court cases over the years. I don’t remember the name of the person who gave the talk or the name of the organization, but the talk was video taped and put up on the Redistricting Commission website back in late April or early May of 2010. I just now checked the website to try and find the video for you, but it looks like they took the old videos down. The best I could find was this page with Outreach Partners. Rose Institute sounds familiar; that might have been it.


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