Senate Bill 25 Original Senator mcpherson

1. Senate Bill 25 OriginalSenator mcpherson March 22, 2011

2. Traditional Districting Principles • Compactness -Shaw v. Reno (Shaw I); Bush v. Vera; DeWitt v. Wilson • Contiguity - Shaw v. Reno • Preservation of Counties and Other Political Subdivisions - Shaw v. Reno; Abrams v. Johnson • Preservation of Communities of Interest - Miller v. Johnson; Abrams v. Johnson • Preservation of Cores of Prior Districts - Abrams v. Johnson • Protection of Incumbents - Abrams v. Johnson • Compliance with Section 2 of the Voting Rights Act - Shaw v. Hunt (Shaw II) NCSL. Redistricting Law. 2010. Pages 105-106.

3. Complying with Section 2 of the Voting Rights Act • A claimed violation of Section 2 of the Voting Rights Act could provide the compelling governmental interest the state needs to create a race-based district. • “To prevail on such a claim, a plaintiff must prove that the minority group is ‘sufficiently large and geographically compact to constitute a majority in a single-member district;’ and that the minority group is ‘politically cohesive;’ and that ‘the white majority votes sufficiently as a bloc to enable it…usually to defeat the minority’s preferred candidate’.” – Thornburg v. Gingles NCSL. Redistricting Law. 2010. Page 76.

4. Complying with Section 5 of the Voting Rights Act • The Supreme court, after lengthy consideration of the role the Department of Justice played in these cases, made it clear that the test for Section 5, as decided in Beer v. United States (425 U.S. 130 (1976)), was non retrogression, not maximization of minority districts as urged by the Department of Justice. • “We do not accept the contention that the State has a compelling interest in complying with whatever preclearance mandates the Justice Department issues.” – Miller v. Johnson • “There is no indication Congress intended such a far reaching application of Section 5, so we reject the Justice Department’s interpretation of the statute and avoid the constitutional problems that interpretation raises’.” – Id. At 927 NCSL. Redistricting Law. 2010. Page 77.

5. The Foundation of a Defensible Plan • What does this mean for the 2010 round of redistricting? • Now more than ever, identifying and using traditional race-neutral districting principles is key. In racial gerrymandering cases, courts are willing to pierce the veil of claimed traditional districting principles to see if they really were used; it is a highly fact-based inquiry. • “That the legislature addressed these interests does not in any way refute the fact that race was the legislature's predominate consideration.”– Shaw II NCSL. Redistricting Law. 2010. Page 113.

6. You Need Not Maximize the Number of Minority Districts • Notwithstanding anything you might have been told by the Justice Department in the 1990’s you are not required to maximize the number of majority-minority districts. • The Justice Department’s policy of pressuring states to maximize the number of majority-minority districts was not based on a correct reading of the Voting Rights Act. Wattson, Peter. “How to Draw Redistricting Plans that Will Stand Up in Court.” National Redistricting Seminar. NCSL. September 26,2010. Pages 22-23.

7. You Need Not Maximize the Number of Minority Districtscontinued… • Section 2 included a proviso, added through the efforts of Senator Dole in 1982, that ‘”nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” - 42 U.S.C. § 1973 (b). • In other words, § 2 did not mandate proportional representation. So, how could it be construed by the Justice Department to require that a minority group be given the maximum number of elected representatives? Wattson, Peter. “How to Draw Redistricting Plans that Will Stand Up in Court.” National Redistricting Seminar. NCSL. September 26,2010. Page 23.

8. You Need Not Maximize the Number of Minority Districtscontinued… • The Court refused to draw a bright line giving plan drafters a safe harbor if they created minority districts in proportion to the minority population. That, the Court said, would ignore the clear command of the statue that the question of whether minority voters have been given an equal opportunity to elect representatives of their choice must be decided based on the “totality of circumstances,” rather than any single test. It would encourage drafters to draw majority-minority districts to achieve proportionality even when they were not otherwise necessary and would foreclose consideration of possible fragmentation of minority populations among other districts where they were not given a majority. - 512 U.S. at 1017-21 (slip op. at 20-24). Wattson, Peter. “How to Draw Redistricting Plans that Will Stand Up in Court.” National Redistricting Seminar. NCSL. September 26,2010. Page 23.

9. Avoid Drawing a Racial Gerrymander • When a state creates a majority-minority district without regard to “traditional districting principles,” the district will be subject to strict scrutiny and probably struck down. – Shaw v. Reno, Miller v. Johnson and Bush v. Vera Wattson, Peter. “How to Draw Redistricting Plans that Will Stand Up in Court.” National Redistricting Seminar. NCSL. September 26,2010. Page 24.

10. Avoid Drawing a Racial GerrymanderContinued… • As Justice O’Conner said, “[R]eapportionment is one area in which appearances do matter.” - 509 U.S. at 647 (slip op. at 15). A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group – regardless of their age, education, economic status, or the community in which they live – think alike, share the same political interests, and will prefer the same candidates at the polls…By perpetuating such notions, a racial gerrymander may exacerbate the very patterns of racial bloc voting that majority - minority districting is sometimes said to counteract. – 509 U.S. at 647-48 (slip op. at 15-16). Wattson, Peter. “How to Draw Redistricting Plans that Will Stand Up in Court.” National Redistricting Seminar. NCSL. September 26,2010. Page 25.

11. Follow Traditional Redistricting Principles • If you do choose to subordinate traditional districting principles to race in order to create a majority-minority district, be aware that it is unlikely your district will stand up in court. A racial gerrymander is subject to strict scrutiny under the Equal Protection clause of the 14th Amendment. To survive strict scrutiny, a racial classification must be narrowly tailored to serve a compelling government interest. – Shaw v. Reno Wattson, Peter. “How to Draw Redistricting Plans that Will Stand Up in Court.” National Redistricting Seminar. NCSL. September 26,2010. Page 32.

12. A Compelling Governmental Interest • What may qualify as a “compelling governmental interest?” • So far, the Supreme Court has considered remedying past discrimination, avoiding retrogression in violation of § 5 of the Voting Rights Act, and avoiding a violation of § 2 of the Voting Rights Act to be possible compelling governmental interests. Wattson, Peter. “How to Draw Redistricting Plans that Will Stand Up in Court.” National Redistricting Seminar. NCSL. September 26,2010. Page 33.

13. Narrowly Tailored to Achieve that Interest • During the 1990s and 2000s, however, no racial gerrymander was explicitly found by the Supreme Court to have been sufficiently narrowly tailored to achieve any of these compelling governmental Interests. • See, Shaw v. Reno, Miller v. Johnson, Bush v. Vera, League of United Latin American Citizens v. Perry, contra, King v. State Board of Elections, King v. Illinois Board of Elections. • Don’t assume that yours will be the first! Wattson, Peter. “How to Draw Redistricting Plans that Will Stand Up in Court.” National Redistricting Seminar. NCSL. September 26,2010. Page 33.

14. Put the Genie Back in the Bottle!