Legislatures Reapportionment State Local Government Reapportionment

Legislatures Reapportionment State & Local Government

Reapportionment • Apportionment – The allotting of districts according to population shifts. The number of congressional districts a state has may be reapportioned every 10 years (Article 1: Section 2) • Redistricting – The drawing of new boundaries for congressional and state legislative districts, usually following a decennial census

Reapportionment • Gerrymander – Districts clearly drawn with the intent of pressing partisan advantage at the expense of other considerations. • Malapportionment – A situation in which the principle of equal representation is violated • Majority-Minority Districts – Districts in which a minority group such as African Americans or Hispanics, make up a majority of the population or electorate.

Reapportionment revolution • Apportionment – The Reapportionment Revolution • Major emphasis from the last successful social movement in America = Civil Rights

Apportionment Issues - Senate • Named Senate following Roman precedent – Madison = it should act with “more coolness, with more wisdom, than the popular branch” • Based on territory, not population – But, Madison argued to have Senate popularly elected – Gerry insisted that commercial (economic) interests would be more “secure in the hands of states vs. the people • Convention so voted, unanimously! • Historically, senators promoted dominant regional interests (farming, mining, shipping) – Presently states are more diverse than many House districts and more competitive than House seats

Apportionment Issues - Senate Unequal representation – Large population differences among states – Electoral Vote = CA (55) vs. 7 least populous states AL, DE, MT, ND, SD, VE, WY (3 each) – ~ 33% of population lives in just 4 states (CA, TX, FL, NY) – Alaska (1959) & Hawaii (1959) – Puerto Rico voted on statehood (4 million) • Would receive x Electoral votes • Unequal but…Constitutional

Apportionment Issues - House • Based on population (limited to 435 - 1910) – Aprox 700, 000 per district • Originally about 33, 000 – 4 delegates (Am. Samoa, D. C. , Guam, Virgin Is) – Puerto Rico resident commissioner • Trends = Frostbelt (rustbelt) to Sunbelt – 1940 – East & Midwest states = 58% house seats – 2000 – South & West = 58% house seats

Census Politics • Article 1, Sec. 2, Clause 3: The actual Enumeration shall be made…, in such Manner as they shall by law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at least one Representative…” • Should census figures be estimated? – Democrat Party would benefit most? – 2. 1% or 5 million missed (homeless, etc) • Court ruled …”actual enumeration”

Other Article 1, Sec. 2 Issues States regulate elections and voting qualification – Congress may supersede state regulations as the “Time, Places and Manner” • • • Set date for selecting electors Set age qualifications Residency requirements to vote in national elections Established a uniform election day for congress & Pres Gave American citizens who live overseas right to vote in national elections (via states of legal residence) • Other Constitutional voting rights (after Malapportionment history = slide “voting rights – cont. 2”)

Malapportionment • Many states did not manage re-districting according to equal populations – Early years not a major concern because fewer problems with population shifts – No specific ‘rule’ that states followed – Often left up to incumbents or majority party – Usually became urban/rural fight

Malapportionment • Non-political (tacit) – Growth pattern changes – Bureaucratic inability to respond to migration patterns • “We’ve always done it this way!” – Elected officials lean towards status quo • “We’ve always done it this way!” • Fear of loss of safe district • Political (explicit) – Fiefdom advantages (machine) – Partisan advantages – Racial advantages

Malapportionment • Gerrymandering – Use/abuse of districting to favor one group over another • Elbridge Gerry, MA (D) 1811 – Partisan redistricting to favor his party – Media called district a Gerrymander – His “Reward? ”

The salamander • State Senate Districts approved 1812

Elbridge Gerry (1744 -1814) • • • Born at Marblehead, Massachusetts 1762 graduated from Harvard 1772 1 st elected to Mass general court Signed the Declaration of Independence Continental Congress Member * 1787 delegate to Federal Convention U. S. House member for two terms 1797 diplomat team member – XYZ Affair 1810 -1812 Governor of Mass 1813 -1814 Vice President

Gerrymandering • Used to … – Benefit particular political party – Protect/Punish incumbents – Manipulate prospects • Boost/limit aspirants’ – ethnic, newcomer, etc – Manipulate ethnic groups prospects • Became easier with the advent of ECAD – 2000 s even citizen organizations used electoral ECAD • Cracking: splitting/diluting strength of group • Packing: confine groups strength into few districts or to make a district safer

First Past The Post • Winner Take All System – Majority (50+1) wins • Multicandidate race may produce only plurality winner – 1992 Clinton 43%; Bush 37%; Perot 19% – Tends to reinforce moderate/centrist candidates • Reinforces idea of “wasted vote” • Single Member Districts – Reinforcing trends of above • Proportional representation: each party running receives the proportion of legislative seats corresponding to its proportion of the vote – Encourages issue-oriented campaigns – Enhances the representation of females and minorities

Voting Rights – (cont. 2) • 14 th Amendment – Forbids qualifications that have no reasonable relation to the ability to vote • 15 th Amendment – Forbids qualifications based on race • 19 th Amendment – Forbids qualifications based on gender • 24 th Amendment – Poll tax prohibited for national elections • 26 th Amendment – Forbids states to deny citizens 18 years of age or older the right to vote on account of age

Voting Rights – (cont. 3) • 14 th Amendment & 5 th Amendment – Equal Protection Clause declares that no state (including any subdivision thereof) shall “deny to any person within its jurisdiction the equal protection of the laws. ” although no parallel clause explicitly applies to the national government, courts have interpreted the 5 th Amendment’s Due Process Clause, which states that no person shall “be deprived of life, liberty, or property, without due process of law, ” to impose the same restraints on the national government as the equal protection clause imposes on the states.

Other - (cont. 4) • Civil Rights Act of 1957 – Makes it a federal crime to prevent persons from voting in federal elections – Gave Attorney Gen. Right to sue to correct discrimination and intimidation of potential voters • Civil Rights Act of 1964 – Bars discrimination in employment or in public accommodations on the basis of race, color, religion, sex, or national origin; created the Equal Employment Opportunity Commission • Voting Rights Act of 1965 – Authorizes the appointment of federal examiners to register voters in areas with a history of discrimination

1965 VRA Act • Section 2: – Prohibits voting qualifications that result in a denial of voting rights on account of race and color • Section 5: States with a history of denying minority voting rights – must Pre-clear with DOJ any voting practice changes • Change in polling places • Changes in candidacy requirements or qualifications • Changes in boundary lines of voting districts – Annexation/deannexation amendments to LG boundaries • Changes that affect the creation or abolition of an elective office • Imposition by state political parties of fees for delegates to nominating conventions – May not dilute the voting power of minority group (race or color)

1965 Act Amendments • South Carolina v. Katzenbach (1966) – Court Upholds VRA of 1965 • Rules the enforcement clause of the 15 th amendment gives Congress “full remedial powers” to prevent racial discrimination in voting, and holds that the VRA is a “legitimate response” to the “insidious and pervasive evil” which has denied blacks the right to vote since 1870. Further – Sect. 5, preclearance was designed “to shift the advantage of time and inertia from the perpetrators of the evil to its victims. ” • Renewed in 1982 • Renewed in 2006 for another 25 years – Senate voted 98 -0 to approve renewal – Some House members wanted the law to include all states not just the Southern states

Judicial Election Law (JEL) • Courts may determine election rules? – Many cases grew out of Civil Rights agenda and the discrimination against African-Americans – Smith v. Allwright (1944) • Declared white primary unconstitutional – Gomillion v. Lightfoot (1960) • declared (Tuskegee) district unconstitutional because it was drawn to ensure a certain race would be a minority within the district – Baker v. Carr (1962) • Tenn. malapportioned districts violated the equal protection clause of the 14 th Amend. & overturned Colegrove v. Green (1946) which had stated that relief was best appropriated through the political process – Gary v. Sanders (1962) • GA Gov may not be selected by county unit system but vote total

Reapportionment • Baker v Carr (1962): 14 th amendment provides equal protection making unequal districts a “justiciable” question for the Supreme Court • Reynolds v Sims (1964): both chambers of state legislature must be apportioned with equal population districts (legislators represent people not trees or acres) • Wesberry v Sanders (1964): applied “one personone vote” principle to the US House districts • Mahan v Howell (1973): “Absolute Equality” not necessary and may conflict with other state interests. May allow about 10% difference

Reapportionment, cont. • Gerrymandering: • Davis v Bandemer (1986): gerrymandering could violate the constitution. 1) one election does not usually provide enough info and 2) ruling not clear • Shaw v Reno (1993): Affirmative gerrymandering and reverse discrimination where majority “minority” districts were created. Look at “compactness & govt boundaries. Mc. Kinney example

(JEL) - 2 – Wesberry v. Sanders (1964) • “…as nearly as is practical” = substantial equality in population (congressional elections) – Reynolds v. Sims (1964) • Congressional districts & Men are not trees & One person = One Vote (state legislative districts) – Lucas v. Colorado (1964) • Even a popular citizen referendum must meet the Reynolds Principle of “one man, one vote” – Harper v. Virginia Board of Elections (1966) • Ruled Poll Tax unconstitutional for all elections

(JEL) - 3 – Mahan v. Howell (1973) • Strict adherence to numbers not necessary but an “honest and good faith effort” is…deviations okay if based on legitimate considerations of a ‘rational state policy” and preserves voters … in a political subdivision…try to keep political boundaries intact (Dissent = judicial activism could lead to “regionalism”) – Gaffney v. Cummings (1973) • Generally, partisan gerrymandering does NOT violate federal court standards for “equal protection” under the 14 th amendment – U. J. O. v. Carey (1977) • Obligation = 1965 VRA…to ensure election of minority members – Davis v. Bandemer (1986) • Federal courts may intervene when partisan gerrymandering “consistently degrades a voter’s or a group of voters’ influence on the political process as a whole. ”

(JEL) - 4 – Shaw v. Reno (1993) 5 -4 ruling • Rejected 1 st & 12 th N. C. districts • Said the DOJ was wrong to create as many Majority-Minority districts as possible (sidesteps UJO) • Announced that although it was a legitimate goal for states to take into account when they drew electoral districts to increase the voting strength of minorities, they could not make race the sole or predominant reason for drawing district lines. • O’Conner (maj. opinion) “…districting so highly irregular that, on its face, it rationally cannot be understood as anything other than an effort to segregate voters…on the basis of race. ”

(JEL) - 4 – Holder v. Hall (1994) 5 -4 ruling • “…size of governing body is not subject to Section 2” VRA = no intentional discrimination • Thomas – “…an examination of the current state of our decisions should make obvious a simple fact that for far too long has gone unmentioned: vote dilution cases have required the federal courts to make decisions based on highly political judgments – judgments that courts are inherently ill-equipped to make. ” – “Worse, our interpretation…required us to distort our decisions to obscure the fact that…at the heart of our cases rests on precisely the principle the Act condemns. ” • O’Conner (in Shaw and cited in Holder) – …”we have collaborated in what may aptly be termed the racial-balkanization of the Nation. ”

(JEL) - 5 – Miller v. Johnson (1995) 5 -4 ruling • rejected GA districts drawn with race as a predominant factor • Kennedy (maj. opinion) plaintiff must prove that race was a predominant factor motivating the states actions – 3 clues to prove racial predominance: • Compactness • Contiguity • Political subdivision intactness • Problem = Absolute Equality • Result?

(JEL) - 6 – Many of the Majority-Minority districts became white majority • Common belief – white percentage should be less than 40% within district • Most minority candidates WON – C. Mc. Kinney won an easy election! • We’ve come a long way? – “The idea that minorities have to have a super-majority of black voters to win in their districts, that’s history now. ” • Simply an effect of Incumbency?

(JEL) - 7 – Hunt v. Cromartie (1999) Unanimous • Remanded case back to district court • Judges were not sure of ‘motive’ of state – District Court should consider state’s point of view of grouping Democrats together…who just happen to be black • Just because a district has a supermajority does not mean that the state was motivated by race – D. Court ruled that district was driven by race – Easley V. Cromartie (2001) 5 -4 • Disagreed with lower court (findings) • Court gave “wiggle” room to racially drawn districts • Comments…(next slide)

(JEL) - 8 cont. - Easley v. Cromartie (2001) • Majority-Minority district may stand • Kennedy – “…race closely correlates with political behavior. ” – Thomas (Bleckley case) • Blacks do not always vote for the black candidate – League of United Latin American Citizens v. Perry (2006) 7 -2 • No workable “test” to measure “how much partisan dominance is too much” • Stevens & Breyer - dissented – State “violated constitutional obligation to govern impartially” • Indecision = Partisan gerrymandering standards are? – How do you define “Impartially? ”

(JEL) - 9 Problems: No Clear Guidelines – Legislators job = create/formulate fair rules – Judicial do not provide advisory opinions • Passive • Nine “subjective” opinions! - All decisions lean toward motive • Motives difficult to interpret • Human behavior difficult to predict

Paradox of Representation (Lublin) • Liberals pushed for majority-minority districts – DOJ – MM districts & LG wards – Bleached other areas • Ginsberg – …we should “intervene only to protect the rights of minorities. ” • O’Conner – racial districting conveys “the belief…that individuals should be judged by he color of their skin. ” • Generally, yielded more minority lawmakers but led to more conservative House – Reduced minorities’ leverage and influence – Similar to Peggy Heiling’s study of L. G. s

House Districting – Redistricting • Non-partisan Districting Boards – 6 states – Both parties represented on Board – May be appointed by Governor and political party legislative leaders • Yet, it is an inherently ‘political system’ • Politics is… – Harold Lasswell – David Easton