PROVIDING FAIR AND EFFECTIVE REPRESENTATION FOR THE PEOPLE OF TEXAS
A Proposed Congressional Redistricting Act and Constitutional Amendment for the State of Texas
February 2011
PREPARED BY:
A. J. Pate, CPA Houston, Texas
By: __________________ ____ A BILL TO BE ENTITLED AN ACT
_____.B. No. ________
relating to the redistricting of congressional districts and the establishment of redistricting principles1 and procedures to provide fair and effective representation2 for the people of Texas and to maintain public confidence in the integrity of the redistricting process. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Subtitle A, Title 3, Government Code, is amended by adding Chapter 307 to read as follows: CHAPTER 307. ESTABLISHMENT OF REDISTRICTING PRINCIPLES AND PROCEDURES Sec. 307.001. DEFINITIONS. In this chapter: (1) "Federal census" means the decennial census required by the United States Constitution to be conducted by the United States Bureau of the Census in every year ending in the numeral zero. (2) "Plan" means a redistricting plan for the Texas congressional districts drawn pursuant to the requirements of this chapter. Sec. 307.002. PLAN REQUIREMENTS. (A) In a plan adopted under this chapter, all applicable state and federal constitutional and statutory requirements shall be followed: (1) Districts shall be established as nearly equal in population as practicable and feasible3 to comply with the United States Constitution as interpreted by the Supreme Court of the United States. The total population deviation of the plan shall be less than one percent
from the ideal district population,4 in compliance with the legitimate state objectives and legislative policies5 stated in this chapter. The ideal district population shall be calculated by dividing the total state population in the most recent federal census by the total number of districts. Deviations shall be specifically reconciled to the redistricting principles stated in this chapter.6 (2) The plan shall comply with applicable requirements of the federal Voting Rights Act of 1965, as amended. Such requirements protect geographically‐compact minority groups7 and are fully consistent with the redistricting principles expressed in this chapter. The redistricting principles shall not be subordinated to combine distant and discrete minority communities of interest with disparate needs and interests.8 (B) In a plan adopted under this chapter, the following redistricting principles shall be followed: (1) The plan shall respect the integrity of the state's basic geographic regions9 delineated by its Councils of Governments.10 These councils shall form the cores of districts insofar as practicable, individually or by combining or dividing as may be required to comply with population equality. (2) The plan shall avoid unnecessarily dividing counties and cities in the formation of districts.11 To the extent practicable, district lines shall be coterminous with the boundaries of these political subdivisions.12 City boundaries, which may be highly irregular,13 shall not be given priority over retaining a community of interest intact. (3) The plan shall keep intact, to the extent practicable, any discrete and insular communities of interest14 which are readily identifiable, based on actual shared and relevant
interests and common concerns. Communities of interest shall be defined by social, economic, racial, ethnic, cultural, industrial, commercial, and/or geographic commonalities. (4) Each district shall be composed of undivided census tracts15 as the smallest unit of redistricting.16 (5) Districts shall be geographically compact,17 composed of convenient contiguous territory,18 based on a sense of community enabled by reasonable availability and facility of transportation and communication between population centers and other inhabited areas.19 Districts shall not be considered non‐compact due solely to following irregular natural geographic or political boundaries.20 A district is not contiguous unless all areas are joined by whole census tracts; areas which connect only at the points of adjoining corners are not contiguous.21 The Texas Legislative Council shall develop compactness tests, based on prevailing optimal compactness models,22 to measure relative compactness of individual districts and alternative plans. (6) The plan shall be drawn totally and absolutely without regard or reference to partisan political effect or consequences of any kind.23 The following data are strictly prohibited and excluded from use in establishing districts: partisan data of any type, voting history and electoral data, and locations of the residences of incumbents, candidates, or any other specific persons. (C) All of the above redistricting principles can be classified as various aspects or characteristics of communities of interest,24 from regional to local. However, since the population equality requirement is generally counterproductive to such interests,25
adjustments to equalize populations shall be made at the margins of districts, with minimal disruption of communities of interest. (D) The redistricting principles are interdependent and interrelated, with the intent of being not only reconcilable, but also compatible.26 Any conflicts between these principles in their application shall always be resolved in favor of the principle that, in a specific or particular circumstance or instance, would provide the fairest and most effective representation for affected communities of interest. (E) The redistricting principles shall apply to all plans drawn and adopted by the legislature, or any agency or commission that the legislature may establish for such purposes. Sec. 307.003. PROCEDURAL STANDARDS. (A) Preliminary Regional Hearings. (1) The legislature shall conduct public hearings in the various geographical regions of the state, as has been its customary practice, beginning in the year in which the federal census is taken. (2) At a minimum, public hearings shall be conducted within all Councils of Governments with populations equal to or greater than the average district population, as of the federal census then current. (3) These public hearings shall be adequately publicized through state and local media and the Internet, as appropriate. These publications shall include the plan requirements (Sec. 307.002).
(4) These public hearings shall be designed to promote public participation in the redistricting process by providing citizens the opportunity to present relevant testimony, particularly regarding the identification of local and regional communities of interest. (5) All citizens, or any person representing citizens, shall be given equal treatment in public hearings. No person, including officeholders at any level of government, will be given deference or preferential treatment, nor will their testimony, oral or written, be given preferential consideration. Testimony will be received in the order of appearance at all hearings, as determined by each person personally registering to speak. (B) Redistricting Bills. (1) In January of each year ending in the numeral one, the legislature will convene in regular session. The official population data from the federal census taken in the previous year will be delivered by the United States Bureau of the Census no later than April 1 as required by federal law. Plans must be completed prior to filing deadlines for primary elections in the following year (years ending in the numeral two), after allowing for up to 120 days for preclearance under Section 5 of the Voting Rights Act by the United States Justice Department or the United States District Court for the District of Columbia. (2) In the process of preparing a plan during the regular session and called special sessions, if any, legislative redistricting committees shall hold public hearings as deemed adequate and appropriate, in compliance with the standards in Sec. 307.003 (A) (3), (4), and (5). (3) Public testimony shall be taken at all hearings on preliminary plans made public by committees or individual members of the legislature, particularly presenting evidence and argument with respect to the specific application of plan requirements, in part or in whole.
(4) Plans may be submitted at all hearings, and to the redistricting committees at other times, by citizens or other interested parties. These plans must meet the following criteria: must be based on the latest federal census data, must present a statewide plan, must conform to plan requirements, and must provide relevant explanations for each district drawn. Informational submissions, clearly designated as such, may be prepared and presented for the sole purpose of identifying boundaries of specific communities of interest, with or without regard for population factors. (5) The Texas Legislative Council shall establish objective models to measure compliance with plan requirements (Sec. 307.002). Before final consideration and adoption of a plan, the council shall prepare a comparative analysis and qualitative ratings of all statewide plans prepared by the legislature and by individual citizens using the redistricting computer systems of the council. This analysis and rating shall be made public and available for public comment. If the legislature does not adopt the plan rated highest, such action must be fully explained with specific reasons.27 Sec. 307.004. CHALLENGES TO PLAN. (A) The Texas Supreme Court shall be the court of original jurisdiction for legal challenges to any plan adopted by the legislature.28 (B) if an adopted plan is challenged and declared invalid or if the legislature fails to adopt a timely plan, the five highest‐rated plans, as determined by the Texas Legislative Council (Sec. 307.003(B)(5)), shall be transmitted to the Texas Supreme Court. The council shall also transmit to the court the highest‐rated plan prepared by an individual private citizen of the State of Texas, if such a plan is not among the five highest‐rated plans. The court shall select
one of the plans, without change or modification, to serve as the redistricting plan for the state. The adoption of a plan should be made not later than thirty days after transmitted plans are received by the court. (C) The Legislature hereby expresses its preference29 that any court, state or federal, complies with state policy by incorporating the redistricting principles of this chapter (Sec. 307.002 (B)) in any plan it may prepare or adopt. (D) Congressional redistricting is a state legislative function under both the state and federal constitutions.30 Therefore, the legislature reserves the right to replace any court‐ mandated remedial plan,31 immediately if in session or, if not in session, in a called special session or the next regular session, whichever comes first. However, a plan drawn and adopted by the legislature or a plan selected and adopted by the Texas Supreme Court under Sec. 307.004(B) cannot be redrawn by the legislature until after the next federal census. SECTION 2. This Act takes effect immediately upon passage if it receives a vote of two‐thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2011.
By: __________________ ____ A JOINT RESOLUTION
_____.J. R. No. ________
proposing a constitutional amendment establishing fair redistricting principles and procedures relating to the drawing of United States congressional districts for the State of Texas. BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Article Ill, Texas Constitution, is amended by adding Section 28a to read as follows: Sec. 28a. (a) The Legislature of the State of Texas exercises its authority to adopt redistricting plans for the election of the members of the United States House of Representatives from this state. Districts for this federal legislative body may not be established or changed except as provided by this section. (b) In a redistricting plan or modification of a plan drawn and adopted under this section, the following principles shall apply: (1 ) districts shall keep intact, to the extent practicable, identifiable communities of interest, defined by social, economic, racial, ethnic, cultural, industrial, commercial, and/or geographic commonalities; (2) districts shall respect the integrity of the state's basic geographic regions; (3) districts shall be geographically compact, composed of convenient contiguous territory;
(4) districts shall avoid dividing counties and cities in the formation of districts, with district lines coterminous with the boundaries of political subdivisions to the extent practicable; (5) districts shall be composed of undivided census tracts; (6) districts shall be drawn completely without purposeful intent to favor or disfavor any specific person, political party, or any other organization; (7) districts shall be established as nearly equal in population as practicable and feasible in accordance with these principles; and (8) districts must be drawn in accordance with the United States Constitution and all applicable federal laws. (c) The legislature shall enact appropriate laws to implement this section. (d) The Supreme Court of Texas shall have original jurisdiction for legal challenges to any adopted redistricting plan. (e) No redistricting plan adopted by the legislature shall be redrawn by the legislature until after the next federal census required by the United States Constitution. However, the authority of the legislature to replace any court‐ordered remedial plan shall not be restricted. SECTION 2. This proposed constitutional amendment shall be submitted to the voters at an election to be held November 6, 2012. The ballot shall be printed to permit voting for or against the following proposition: "The constitutional amendment establishing fair redistricting principles and procedures to be applied to the drawing of United States congressional districts for the State of Texas."
1 Opinion of the Court, Justice Kennedy: ". . . traditional race‐neutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests . . ." Miller v. Johnson, 515 U. S. 900, at 916 (1995). Opinion of the Court, Justice O'Connor: ". . . traditional districting principles such as maintaining communities of interest and traditional boundaries . . ." Bush v. Vera, 517 U. S. 952, at 977 (1996). Justice Souter, with whom Justice Ginsburg joined, dissenting: ". . . traditional districting principles . . .: contiguity, compactness, respect for political subdivisions, and conformity with geographic features like rivers and mountains. . . . [,] such considerations . . . relevant to justifying small deviations from absolute population equality, Karcher, 462 U. S., at 740 . . ." Vieth v. Jubelirer, 541 U.S. 267, at 348 (2004). Opinion of the Court, Chief Justice Warren: "[T]he achieving of fair and effective representation for all citizens is . . . the basic aim of legislative apportionment . . ." Reynolds v. Sims, 377 U.S. 533, at 565‐6 (1964). Since Justice Brennan was the most zealous advocate on the Supreme Court of population equality in districts, Karcher v. Daggett is often cited as a requirement for achieving absolute equality ("zero deviation") between congressional district populations. The following quotes of Justice Brennan in this case clearly dispel such a dogmatic misinterpretation of the Court's opinion. In fact, the phrase "zero deviation" occurs only twice in Court opinions (one occurrence being in a footnote), neither instance being the Opinion of the Court, and it has never been a requirement of the Court. Opinion of the Court, Justice Brennan: "Any number of consistently applied legislative policies might justify some variance, including, for instance, making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent Representatives. As long as the criteria are nondiscriminatory, these are all legitimate objectives that, on a proper showing, could justify minor population deviations." [Citations omitted.] Karcher v. Daggett, 462 U.S. 725, at 740‐1 (1983). Justice Brennan also stated in Footnote 6, "A federal principle of population equality does not prevent any State from taking steps to inhibit gerrymandering, so long as a good faith effort is made to achieve population equality as well. See, e.g., Colo. Const. Art. V, § 47 (guidelines as to compactness, contiguity, boundaries of political subdivisions, and communities of interest); Mass. Const., Amended Art. CI, 1 (boundaries); N.Y. Elec. Law 4‐100(2) (McKinney 1978) (compactness and boundaries)." He further stated in Footnote 11, "The very cases on which Kirkpatrick relied made clear that the principle of population equality did not entirely preclude small deviations caused by adherence to consistent state policies." "[P]opulation equality is such a crude way of equalizing voters that an obsession with very small population deviations seems rather silly." Bruce Cain, The Reapportionment Puzzle, (1984),
3 2
p. 59. As quoted by the Supreme Court of California, Wilson v. Eu, 1 Cal. 4th 707, at 754, footnote 12 (1992).
4
"Congressional districts shall each have a population as nearly equal as practicable to the ideal district population . . . No congressional district shall have a population which varies by more than one percent from the applicable ideal district population . . ." Iowa Code, Chapter 42.4 (1.b), Redistricting standards. Apparently allowing for a total deviation of two percent.
A total deviation of one percent would be roughly equivalent to the average population of a Texas census tract. Opinion of the Court, Justice White: "Just as a federal district court, in the context of legislative reapportionment, should follow the policies and preferences of the State, as expressed in statutory and constitutional provisions or in the reapportionment plans proposed by the state legislature, whenever adherence to state policy does not detract from the requirements of the Federal Constitution, we hold that a district court should similarly honor state policies in the context of congressional reapportionment. In fashioning a reapportionment plan or in choosing among plans, a district court should not preempt the legislative task, nor 'intrude upon state policy any more than necessary.' Whitcomb v. Chavis, supra, at 160, 91 S. Ct., at 1878." White v. Weiser, 412 U.S. 783, at 795 (1973). Opinion of the Court, Justice Brennan: "The State must, however, show with some specificity that a particular objective required the specific deviations in its plan, rather than simply relying on general assertions. The showing required to justify population deviations is flexible, depending on the size of the deviations, the importance of the State's interests, the consistency with which the plan as a whole reflects those interests, and the availability of alternatives that might substantially vindicate those interests yet approximate population equality more closely." Karcher v. Daggett, 462 U.S. 725, at 741 (1983). In Thornburg v. Gingles, the Court established conditions for determining when a minority district must be created under § 2 of the Voting Rights Act of 1965. Opinion of the Court, Justice Brennan: ". . . [T]he minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single‐ member district." Thornburg v. Gingles, 478 U.S. 30, at 50 (1986). Opinion of the Court, Justice Kennedy: "It remains the rule, however, that a party asserting § 2 liability must show by a preponderance of the evidence that the minority population in the potential election district is greater than 50 percent ['an objective, numerical test']." Bartlett v. Strickland, 129 S. Ct. 1231, at 1249 (2009). "This Court has held that § 2 does not require the creation of influence districts. . . . Only when a geographically compact group of minority voters could form a majority in a single‐member district has the first Gingles requirement been met." ibid., p. 1249.
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Supreme Court of California, Report and Recommendations of Special Masters (hereinafter "Masters"): "[T]he values expressed in the concept of contiguity, community of interest, and respect for local government boundaries — the concept of 'functional compactness' — is completely consistent with the concept of 'geographically compact' minority districts. Indeed, use of these criteria reinforces the [Voting Rights] Act's guarantee to minority groups to have an equal opportunity 'to participate in the political process' [citation omitted]." Wilson v. Eu, 1 Cal. 4th 707, at 763 (1992).
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Opinion of the Court, Justice Kennedy: "[T]here is no basis to believe a district that combines two far flung segments of a racial group with disparate interests provides the opportunity that § 2 requires or that the first Gingles condition contemplates. . . . Legitimate yet differing communities of interest should not be disregarded in the interest of race. The practical consequence of drawing a district to cover two distant, disparate communities is that one or both groups will be unable to achieve their political goals." LULAC v. Perry, 548 U. S. 399, at 433‐4 (2006).
Opinion of the Court, Justice Kennedy: "A State is free to recognize communities that have a particular racial makeup, provided its action is directed toward some common thread of relevant interests." Miller v. Johnson, 515 U. S. 900, at 920 (1995). Opinion, Supreme Court of California: "Insofar as possible the integrity of the state's basic geographical regions should be preserved." Legislature v. Reinecke, 10 Cal. 3d 396, at 402 (1973). Masters: "The integrity of California's basic geographical regions (coastal, mountain, desert, central valley and intermediate valley regions), should be preserved insofar as practicable." Legislature v. Reinecke, 10 Cal. 3d 396, at 412 (1973). Masters: "[D]istricts should be contained, insofar as possible, wholly within one of the major geographic regions of the state." Wilson v. Eu, 1 Cal. 4th 707, at 762 (1992). I first applied the concept of using Texas' twenty‐four Councils of Governments to define the geographical regions of Texas (macro communities of interest) in the 2000 redistricting cycle, initially in testimony before legislative redistricting committees in 2000 and then incorporated into my congressional redistricting plan for Texas, Plan No. 1025C, dated May 21, 2001. Councils of governments, composed of whole counties, are associations of local governments formed to deal with regional issues through coordinated planning and cooperative action. LULAC v. Perry, 457 F. Supp. 2d 716 (E.D. Tex. 2006). On remand from the Supreme Court. Remedial Proposal of A. J. Pate on Remand, Epilogue, filed July 14, 2006: "Plan 1160C was drawn on a non‐partisan basis to maximize representation for communities of interest by basing districts on publicly‐available independent, apolitical, and self‐defined communities of interest: Councils of Governments, counties, and census tracts." See Endnote 24.
10 9
This concept had also been adopted in this same remedial phase by the Jackson plaintiffs, as stated in the Remedial Brief of the Jackson Plaintiffs by Gerry Hebert for the Democratic Congressional Interveners. This brief stated that its plan complied with "traditional, neutral districting principles", including "respect for Texas's regions". Noting that Texas is divided into twenty‐four regional councils of governments, the brief further stated that the Jackson Plan's consistency with these regions "will allow Representatives in Congress to focus their efforts more intently on county and local governments that share common interests." This concept is adaptable nationally, since virtually all states are divided into councils of governments or regional councils, which basically define their geographic regions.
11
Opinion, Supreme Court of California: "Insofar as practical, counties and cities should be maintained intact." Legislature v. Reinecke, 10 Cal. 3d 396, at 402 (1973).
Masters: "It is clear that in many situations county and city boundaries define political, economic and social boundaries of population groups. Furthermore, organizations with legitimate political concerns are constituted along local political subdivision lines. Therefore, unnecessary division of counties and cities in reapportionment districting should be avoided." Legislature v. Reinecke, 10 Cal. 3d 396, at 412 (1973). Also see Endnotes 1 and 3. Opinion of the Court, Chief Justice Warren: "A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme. Valid considerations may underlie such aims. Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering." Reynolds v. Sims, 377 U. S. 533, at 578‐9 (1964). Though this decision applied to legislative districts, the principle remains the same for congressional districts. "To the extent consistent with [population equality], district boundaries shall coincide with the boundaries of political subdivisions of the state. The number of counties and cities divided among more than one district shall be as small as possible." Iowa Code, Chapter 42.4 (2), Redistricting standards. Also see Endnotes 1 and 3.
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Masters: "The use of whole census tracts makes it difficult to comply literally with another recommended criterion, that of maintaining the integrity of city boundaries. Some cities have exceedingly irregular boundaries with an odd assortment of "fingers" and "peninsulas" jutting out from the basic part of the city. . . . Often census tract boundaries do not correspond exactly with the boundaries of such cities. In such instances, census tract boundaries which preserve the bulk of the city in one district have been followed even though it resulted in trimming off small peninsulas or other such extensions of territory. This has been done only where the
population affected was relatively small." Legislature v. Reinecke, 10 Cal. 3d 396, at 413‐4 (1973). City boundaries are frequently arbitrary and controversial, often including some groups which prefer not to be included, while excluding some which would prefer inclusion. Masters: "The social and economic interests common to the population of an area which are probable subjects of legislative action, generally termed a 'community of interests' (cf. Gov. Code, § 25001), should be considered in determining whether the area should be included within or excluded from a proposed district in order that all of the citizens of the district might be represented reasonably, fairly and effectively. Examples of such interests, among others, are those common to an urban area, a rural area, an industrial area or an agricultural area, and those common to areas in which the people share similar living standards, use the same transportation facilities, have similar work opportunities, or have access to the same media of communication relevant to the election process." Legislature v. Reinecke, 10 Cal. 3d 396, at 412 (1973). Also see Endnotes 1 and 3. Census tracts are designed by the U. S. Bureau of the Census to be demographically homogeneous, relatively permanent, and bounded by natural and/or manmade geographical features. They are statistical subdivisions of counties and do not cross county lines. See Endnote 16. Masters: ". . . [C]ensus tracts should be used as the basic unit for district formation, with division of such tracts being made only when necessary for population equality or to improve substantially compliance with other recommended criteria. Census tracts are the basic unit used by the Census Bureau for measuring the characteristics of the population. . . . [A]n effort has been made by the Census Bureau to make them homogeneous as to social characteristics and to use prominent natural or manmade geographical features as boundaries. Thus, following, rather than disregarding, census tracts will aid in establishing natural, well defined legislative districts and will aid in obtaining valid pertinent socio‐economic data about such districts." Legislature v. Reinecke, 10 Cal. 3d 396, at 413 (1973). Opinion, Supreme Court of California: "We find the Masters' rationale for using undivided census tracts to be both legitimate and compelling." Wilson v. Eu, 1 Cal. 4th 707, at 719 (1992). Various redistricting experts, authorities, and other interested organizations are also now calling for the use of undivided census tracts as the basic unit in redistricting. These include: • Model Redistricting Act, Section 4 (a)(6), Redistricting Criteria: "To the extent practicable, district lines shall use visible geographic features, city and county boundaries, and undivided
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census tracts." Issued in 2005 jointly by the Mexican American Legal Defense and Educational Fund, California Common Cause, the Asian Pacific American Legal Center, and the League of Women Voters of California. • A Proposal for Redistricting Reform: A Model State Constitutional Amendment, Section 6.E: "Respect for Neighborhoods. Each residence in the State must be included in one building block, each building block must be included in one district, and no building block can be divided between two or more districts. The term 'building block' means a census tract used by the United States Bureau of the Census in the most recent federal decennial census of population." Americans for Redistricting Reform, January 2009. By Sam Hirsch, formerly of Jenner & Block LLP, Washington, D.C., representing Democratic plaintiffs in several Texas redistricting cases; joined U.S. Department of Justice as Deputy Associate Attorney General in February 2009. • Arizona State Constitution, Article 4, Part 2, Section 1 (14.E): "To the extent practicable, district lines shall use visible geographic features, city, town and county boundaries, and undivided census tracts . . ." The Arizona Redistricting Commission, independent of the state legislature, was established by the passage of Proposition 106 by the people of Arizona in the 2000 general election.
16
"Census tracts generally have between 1,500 and 8,000 people, with an optimum size of 4,000 people. Counties with fewer people have a single census tract. When first delineated, census tracts are designed to be homogeneous with respect to population characteristics, economic status, and living conditions [micro communities of interest]. The spatial size of census tracts varies widely depending on the density of settlement. Census tract boundaries are delineated with the intention of being maintained over many decades so that statistical comparisons can be made from decennial census to decennial census." U. S. Census Bureau, Cartographic Boundary Files, Geographic Area Description, Census Tracts, 2005.
17
Masters: "The territory included within a district should be contiguous and compact, taking into account the availability and facility of transportation and communication between the people in a proposed district, between the people and candidates in the district, and between the people and their elected representatives." Legislature v. Reinecke, 10 Cal. 3d 396, at 411 (1973). Also, see Endnotes 1 and 3.
18
Masters: "'[C]ontiguity' is not an abstract or geometric technical phrase. It assumes meaning when seen in combination with concepts of 'regional integrity' and 'community of interest.'" Wilson v. Eu, 1 Cal. 4th 707, at 761 (1992). Also, see Endnotes 1, 3, and 17.
19
See Endnotes 14 and 17.
20 "In general, reasonably compact districts are . . . not irregularly shaped, to the extent permitted by natural or political boundaries." Iowa Code, Chapter 42.4 (4), Redistricting standards.
21
"Districts shall be composed of convenient contiguous territory. Areas which meet only at the points of adjoining corners are not contiguous." Iowa Code, Chapter 42.4 (3), Redistricting standards.
In the Iowa Code, Chapter 42.4 (4), two different compactness tests are set forth in detail "to compare the relative compactness of two or more districts, or of two or more alternative districting plans". "No district shall be drawn for the purpose of favoring a political party, incumbent legislator or member of Congress, or other person or group, or for the purpose of augmenting or diluting the voting strength of a language or racial minority group. In establishing districts, no use shall be made of any of the following data: a. Addresses of incumbent legislators or members of Congress. b. Political affiliations of registered voters. c. Previous election results. d. Demographic information, other than population head counts, except as required by the Constitution and the laws of the United States." Iowa Code, Chapter 42.4 (5), Redistricting standards. Opinion, Supreme Court of California: "In drawing voting district lines, the Masters expressly declined to consider the effects of reapportionment on political parties or incumbents. . . . The Masters' plans quite properly were intended to be politically nonpartisan and 'incumbent neutral.'" Wilson v. Eu, 1 Cal. 4th 707, at 719 (1992). In testimony before Texas legislative redistricting committees beginning in 2000 and continuing through my congressional redistricting plans drawn after the release of census data in 2001, I advocated the use of councils of governments as macro/regional communities of interest, counties as intermediate/historical communities of interest (particularly rural counties), and census tracts as micro/neighborhood communities of interest. These are nested communities of interest—census tracts do not cross county lines and councils of governments are composed of whole counties. Justice Stevens, concurring: "The major shortcoming of the numerical standard is its failure to take account of other relevant—indeed, more important—criteria relating to the fairness of group participation in the political process. To that extent, it may indeed be counterproductive." Karcher v. Daggett, 462 U. S. 725, at 753 (1983). Opinion, Supreme Court of California: "As to all of the recommended criteria, their applicability, priority and scope, other than population equality, depend on circumstances
25 24 23
22
indigenous to the area under consideration." Legislature v. Reinecke, 10 Cal. 3d 396, at 414 (1973). Justice Powell, with whom Justice Stevens joined, concurring in part and dissenting in part: "A standard that judges the constitutionality of a districting plan solely by reference to the doctrine of 'one person, one vote' may cause two detrimental results. First, as a perceived way to avoid litigation, legislative bodies may place undue emphasis on mathematical exactitude, subordinating or ignoring entirely other criteria that bear directly on the fairness of redistricting. Second, as this case illustrates, and as Reynolds v. Sims anticipated, exclusive or primary reliance on 'one person, one vote' can betray the constitutional promise of fair and effective representation by enabling a legislature to engage intentionally in clearly discriminatory gerrymandering." [Citations omitted.] Davis v. Bandemer, 478 U.S. 109, at 168 (1986). Justice Harlan, with whom Justice Stewart joined, dissenting: "[T]he Court's exclusive concentration upon arithmetic blinds it to the realities of the political process, as the Rockefeller case makes so clear. The fact of the matter is that the rule of absolute equality is perfectly compatible with `gerrymandering' of the worst sort. A computer may grind out district lines which can totally frustrate the popular will on an overwhelming number of critical issues. The legislature must do more than satisfy one man, one vote; it must create a structure which will, in fact, as well as theory be responsive to the sentiments of the community." Wells v. Rockefeller, 394 U.S. 542, at 551 (1969). Zero population deviation, virtual or actual, is a reductio ad absurdum. The Court had strained at a gnat, and swallowed a gerrymander.
26
Masters: "In sum, we find the criteria underlying the drawing of district boundaries . . . not only reconcilable, but compatible. The criteria have guided our deliberations and informed our decisions." Wilson v. Eu, 1 Cal. 4th 707, at 763 (1992). Cited by DeWitt v. Wilson, 856 F. Supp. 1409, at 1414 (1994). In general, this is similar to the redistricting role of Iowa's Legislative Services Agency, a nonpartisan legislative agency which serves the Iowa General Assembly. Iowa Code, Chapter 42.3, Timetable for preparation of [redistricting] plan.
28 27
Currently, seventeen states have designated the state's supreme court as the court of original jurisdiction in challenges to redistricting plans.
The Supreme Court of California was called upon to resolve impasses created by the Legislature failing to prepare redistricting plans acceptable to Gov. Ronald Reagan in the 1970 census cycle and Gov. Pete Wilson in the 1990 census cycle. In both instances, the court appointed three Special Masters, retired judges, to draw the plans. Both sets of Masters appointed Professor Paul L. McKaskle (a personal friend of mine) as their director and chief counsel.
In my opinion, these Masters produced a model set of redistricting standards which they applied consistently and fairly, establishing a benchmark of excellence other redistricting authorities should strive to emulate. See Wilson v. Eu, 823 P.2d 545 (1992) and Legislature v. Reinecke, 516 P.2d 6 (1973).
29 30
See Endnote 5.
Redistricting of the Texas congressional districts has always been considered a legislative responsibility under the general legislative power granted by Section 1, Article III, of the Texas Constitution, according to the Texas Legislative Council.
Article I, Section 4, of the U. S. Constitution provides: "The Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . ." Opinion of the Court, Justice Kennedy: "[A] lawful, legislatively enacted plan should be preferable to one drawn by the courts. . . . [I]f a legislature acts to replace a court‐drawn plan with one of its own design, no presumption of impropriety should attach to the legislative decision to act . . . [O]ur decisions have assumed that state legislatures are free to replace court‐mandated remedial plans by enacting redistricting plans of their own." LULAC v. Perry, 548 U. S. 399, at 416 (2006). Opinion of the Court, Justice Kennedy: "The task of redistricting is best left to state legislatures, elected by the people and as capable as the courts, if not more so, in balancing the myriad factors and traditions in legitimate districting policies." Abrams v. Johnson, 521 U.S. 74, at 101 (1997).
Note: These endnotes are not intended to be exhaustive, rather intended to be illustrative and representative.
31