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Redistricting Legal Standards and Connecticut’s Latino Community 2011 1 Redistricting Legal Standards and Connecticut’s Latino Community 2011 1

One Person, One Vote Constitutional Requirement to Equalize All Representative Districts Based On Census One Person, One Vote Constitutional Requirement to Equalize All Representative Districts Based On Census n Failure To Do So Debases, Renders Ineffective The Votes In Over-populous Districts n Formula: Ideal Population = Tot. Population Divided by # of Districts n 2

One Person, One Vote Example Tot. Population = 1, 000 n # Of Districts One Person, One Vote Example Tot. Population = 1, 000 n # Of Districts = 10 n Ideal Population = 100 n Smallest District = 95 or a 5% Variance n Largest District = 120 or a 20% Variance n Total Variance = 25% (25 People Off of Ideal Population n 3

One Person, One Vote Permissible Deviations Congressional: As mathematically equal as possible. Karcher v. One Person, One Vote Permissible Deviations Congressional: As mathematically equal as possible. Karcher v. Dagget (1983): even a 0. 7% total variance is unconstitutional where a lesser variance (0. 45%) was presented and state interests not justified. n In Congressional Redistricting the Supreme Court ruled there are no de minimus population variances that can be avoided without justification n 4

One Person, One Vote Permissible Deviations (cont. ) n n n State & Local One Person, One Vote Permissible Deviations (cont. ) n n n State & Local Redistricting: 16. 4% Approaches the Limits of Tolerable Deviations. Mahan v. Howell (1973) Rule of Thumb: 10% Rule. Total Deviations >10% Always Requires Justification NY: Rodriguez v. Pataki (2002). Even where Senate districts downstate were overpopulated vs. under-populated upstate districts, no violation as long as within maximum population deviation. 5

One Person, One Vote Citizenship Voting Population n n Lepak v. City of Irving, One Person, One Vote Citizenship Voting Population n n Lepak v. City of Irving, TX (Feb 2011) where CVAP in one of 6 districts is half of CVAP in others, is City of Irving permitted to draw districts based on equal population vs. equal numbers of voters? Following Chen in 5 th Circuit, Garza in 9 th, Daly in 4 th Court ruled that it will not intervene in the political process b/c choice of using Total Population or CVAP is left to legislature to decide, thus Total Population is permissible. 6

One Person, One Vote Citizenship Voting Population n n ACS 2005 -2009 Data accessible One Person, One Vote Citizenship Voting Population n n ACS 2005 -2009 Data accessible now. Margin of Error > w/ lower geography. No match to 2010. 72. 4% of all Latinos are citizens (2 nd Lowest); 65. 3% of all Latinos are of voting age (Lowest); 40. 7% of all Latinos are CVAP (Lowest). CA: 60. 3% CVAP. TX: 66. 5% CVAP. FL: 63. 8% CVAP. NY: 67. 3% CVAP. IL: 58. 1% CVAP NYC: 67. 5% CVAP. LA: 48. 6% CVAP. Houston: 47. 3% CVAP. San Antonio: 84. 6% CVAP. Chicago: 60% CVAP. 7

One Person, One Vote Prison Populations n n New York, Delaware, Maryland are planning One Person, One Vote Prison Populations n n New York, Delaware, Maryland are planning to count prisoners in home districts, not where prisons are located, at least for state/local redistricting. Major victory in civil rights/voting rights struggle Prison counts an issue in virtually every urban state. Resource: www. prisonersofthecensus. org 8

Federal Voting Rights Act (VRA) Section 2: Three Gingles Prongs (1986) n Totality of Federal Voting Rights Act (VRA) Section 2: Three Gingles Prongs (1986) n Totality of Circumstances (Senate Factors) n Shaw Claims (1993) n 9

Section 2: Three Gingles Prongs (1986) n Is minority group large enough and geographically Section 2: Three Gingles Prongs (1986) n Is minority group large enough and geographically compact to constitute a majority in a single member district? n Is minority group politically cohesive? n Does white majority vote as a bloc to defeat the minority preferred candidate? 10

Section 2: Three Gingles Prongs (1986) n Underlying Section 2 Standard: – The “totality Section 2: Three Gingles Prongs (1986) n Underlying Section 2 Standard: – The “totality of circumstances” – does the minority group have less opportunity than whites to participate and elect candidates of their choice? 11

The Senate Factors Under Section 2 (1982) History of official discrimination in the area The Senate Factors Under Section 2 (1982) History of official discrimination in the area of voting n Racially polarized voting n History of discrimination in education, employment, health, housing, etc. n Discriminatory slating process n 12

The Senate Factors (cont. ) Overt or subtle racial appeals in political campaigns n The Senate Factors (cont. ) Overt or subtle racial appeals in political campaigns n Extent of election of minorities to public office n Significant lack of responsiveness by elected officials to minority needs n 13

Shaw Claims (1993) n Predominant use of race in redistricting is unconstitutional n Scrutiny Shaw Claims (1993) n Predominant use of race in redistricting is unconstitutional n Scrutiny of: – District shape and demographics – Statements by Legislators and staff – Nature of data used in redistricting 14

Shaw Claims (cont. ) n Yet States can intentionally create majority minority districts and Shaw Claims (cont. ) n Yet States can intentionally create majority minority districts and otherwise take race into account, without strict scrutiny, as long as traditional redistricting criteria are not subordinated (Justice O’Connor, Bush v. Vera, 1996) 15

Shaw Claims (cont. ) n Traditional districting practices: – – n Compactness Contiguity Respect Shaw Claims (cont. ) n Traditional districting practices: – – n Compactness Contiguity Respect for political subdivisions Protecting Incumbents Respect for “communities defined by actual shared interests” – FL: Lawyer v. DOJ: Senate Dist. In Tampa Bay In Shaw Challenge. Settled. Low Income Residents of Dist. Regarded by Court as Community of Interest. NY: Diaz v. Silver Latinos Not. Asians Are. Black Maybe Not. 16

Section 2: Gingles One n Is minority group large enough and geographically compact to Section 2: Gingles One n Is minority group large enough and geographically compact to constitute a majority in a single member district? – CITIZENSHIP VAP: Negron v. Miami (11 th Cir. 1997); King v. Bd. Of Elections (7 th Cir. Chicago). n Are Crossover Districts Required? – No. Bartlett v. Strickland (2009). A 39% Black district created to comply w/ VRA that violated N. Carolina law prohibiting crossing County lines not required under Section 2. Blacks must = 50% of single member Dist. 17

Section 2: Gingles One n Are Coalition Districts Required? – Minority Voters, collectively, must Section 2: Gingles One n Are Coalition Districts Required? – Minority Voters, collectively, must satisfy all Gingles requirements to have a chance at a Coalition District. Support found in lower courts in Connecticut, Texas, California – Caveat: Supreme Court has yet to directly decide viability of Coalition Districts n Are Influence Districts Required? – Section 5: Georgia v. Ashcroft & 2006 VRA fix: “ability to elect” is the standard. – Section 2: Page v. Bartels (D-NJ 2001). “Packing” v. “Unpacking” where “Unpacking” wins. 18

Section 2: Gingles Two n Is minority group politically cohesive? – CA: Gomez v. Section 2: Gingles Two n Is minority group politically cohesive? – CA: Gomez v. Watsonville: Cohesion Limited to Voting Patterns. But CO: Sanchez v. Bond: Lay Evid. Shows Latinos Don’t Share Political Objectives 19

Section 2: Gingles Three n Does white majority vote as a bloc to defeat Section 2: Gingles Three n Does white majority vote as a bloc to defeat the minority preferred candidate? -- Page v. Bartels Significant levels of white & Latino crossover votes enabled Blacks to win in disrtricts w/ <30% Black VAP. Influence Disricts will “enhance & expand” opportunities for Blacks & Hispanics to participate, in light of “significant proof” that Blacks & Latinos vote as a bloc. Missing? Latino RPV analysis. Missing? Analysis of Power of Incumbency. 20

Section 2: Totality of Circumstances n Underlying Section 2 Standard: – The “totality of Section 2: Totality of Circumstances n Underlying Section 2 Standard: – The “totality of circumstances” – does the minority group have less opportunity than whites to participate and elect candidates of their choice? » FL: Johnson v. De. Grandy (SCOTUS) No Dilution Where Latinos = Voting Majorities in # of Dist. Proportional To Share of Pop. Proportionality Need Not Be Considered On Statewide Basis – Here Dade County had 50% Latino VAP and of 5 Senate Seats 3 Were Latino. Of 17 House Seats, 9 Were Latino. » NY: Rodriguez v. Pataki (2002): Challenge to Bx. County Senate seats rejected b/c Bronx Latinos were proportionately represented in NYS Senate. 21

Section 2: Totality of Circumstances (cont) n LULAC v. Perry (2006): – To protect Section 2: Totality of Circumstances (cont) n LULAC v. Perry (2006): – To protect incumbency of Republican Henry Bonilla, who didn’t enjoy Latino support, Texas dismantled an emerging Latino majority district and replaced it with a “trade off” district stretching from San Antonio to El Paso. Court rules that promoting traditional redistricting criteria is not excuse for diluting minority voting strength. Debate on Majority Minority Districts: Do they enhance Latino Turnout/Participation? Do they limit Latino power? Is Substantive Representation Sufficient? 22

Consider: Proportional Representation n n Cumulative Voting; Limited Voting; Preference Voting Usually as Remedy Consider: Proportional Representation n n Cumulative Voting; Limited Voting; Preference Voting Usually as Remedy to VRA challenge to Multimember Districts Port Chester, NY. Court Orders CV. Latino Voters Rated CV > positively and Plumped their Votes >often. Luis Marino elected Illinois – CV as Remedy Alabama: 2 cases w/ CV as Settlement 23

Consider: State VRA California State Voting Rights Act as Model n Restricts At-large, Multimember Consider: State VRA California State Voting Rights Act as Model n Restricts At-large, Multimember Systems n Provides protections and remedies beyond VRA n NY: Assemblyman Peter Rivera proposed bill to outlaw all At-large districts n Resource: Joaquin Avila: National Voting Rights Advocacy Initiative @ Seattle Univ Law School, [email protected] edu 24 n

Consider: Non-Citizen Voting Impossible to debate Latino voting strength without it n Usually limited Consider: Non-Citizen Voting Impossible to debate Latino voting strength without it n Usually limited to local municipal / school board elections n Tacoma Park, MD; Cambridge, MA; Chicago School Board elections n NYC: had it, lost it. Now City Council Bill n Proposed in Brookline, MA as recently as Sept. 2010 n 25

Connecticut 151 plus 36. 8/151 and 0/36. 13%. Yet VRA shuns Proportionality n No Connecticut 151 plus 36. 8/151 and 0/36. 13%. Yet VRA shuns Proportionality n No Latino State Senator, similar to NJ n Significant Latino Growth – 50%. 66% Latino VAP. CVAP? Puerto Rican growth significant @ 30%. Dominican? n n Big Picture: 493, 000 26

For further information Juan Cartagena President & General Counsel Latino. Justice PRLDEF 99 Hudson For further information Juan Cartagena President & General Counsel Latino. Justice PRLDEF 99 Hudson St. 14 th Fl. New York, NY 10013 (212) 219 -3360 [email protected] org 27