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Redistricting in Nevada in 2011: Why We Redistrict Every 10 Years

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REDISTRICTING IN
BY SCOTT G. WASSERMAN, ESQ.
Why We Redistrict
Every 10 Years
Section 13 of Article 1 of the Nevada Constitution requires that representation be apportioned according to population. The principle of “one person, one vote,” requiring that election districts be made up of equal population so that each person has an equal vote with the same voting strength was mandated by the U.S. Supreme Court in Reynolds v. Sims, 377 U.S. 533 (1964). Redistricting is necessary to address shifts in population and to ensure compliance with these principles. During the 2011 legislative session, the legislature will undertake the task of redistricting congressional districts (following the 2010 U.S. decennial census, Nevada was apportioned a fourth congressional district), state legislative districts, Nevada System of Higher Education Board of Regents districts and State Board of Education districts. The Nevada Constitution requires the legislature at its first session,1 after the taking of the decennial census of the United States, to undertake its redistricting duty and to use the U.S. Census as the basis of representation. These Nevada constitutional provisions are consistent with U.S. Supreme Court holdings that the U.S. Census is an appropriate basis for redistricting and that it is sufficient to redistrict every 10 years.
MEASURING POPULATION TERMINOLOGY
Ideal district population – is equal to the total state population divided by the total number of districts. Deviation – is the degree by which a single district’s population varies from the ideal population. Overall range or maximum population deviation – the total difference in population of the largest district and the smallest district. 26 Nevada Lawyer February 2011
N NEVADA IN 2011
What Constitutes Equal Population — Congressional Districts
The population of congressional districts must be “as nearly equal as practicable.” Any population deviation, no matter how small, could render a redistricting plan unconstitutional. In recognition of this principle, in 2001, the Nevada Legislature drew the three congressional districts that varied only by a total of six people or 0 percent. One congressional district had two people more than the ideal district of 666,086 and one congressional district had four people less than the ideal district. In 2011, the ideal population of the four congressional districts will be 675,128 people.
REAPPORTIONMENT v. REDISTRICTING
Apportionment is the division of a given number of elected members among established political subdivisions in accordance with an existing plan or formula. Redistricting is the drawing of new boundaries for existing districts. after each decennial census, the 435 members of the U.s. house of representatives are apportioned among the states in accordance with the apportionment Clause of the U.s. Constitution. the congressional districts are then redrawn or redistricted by the states.
What Constitutes Equal Population — State Election Districts
The U.S. Supreme Court allows a greater degree of variation in drawing state and local districts. The Nevada Legislature will enact legislation to redraw the legislative districts, the Nevada System of Higher Education Board of Regents redistricting and the State Board of Education districts. The overriding objective of such redistricting is substantial equality of population among the districts. Redistricting of such plans can withstand a constitutional challenge on the basis of population only if it has minor deviations in population among districts. Redistricting plans with a maximum population deviation of under 10 percent fall within “minor deviations” but such deviations should be justified by traditional race-neutral districting principles (discussed in detail infra).Consistent with this principle, the legislature’s Interim Committee on the Requirements for Reapportionment and Redistricting has adopted a recommendation that the legislature only consider redistricting plans that have population deviations of no greater than +/- 5 percent from the ideal district population. Compliance with this principle is crucial as a redistricting plan with a maximum population deviation of 10 percent or greater creates a prima facie case of discrimination and must be justified by a rational state policy.
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REDISTRICTING IN NEVADA IN 2011
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Potential Legal Challenges to Redistricting Plans
Racial and Ethnic Discrimination
The U.S. Supreme Court has held that a challenge of a redistricting plan under the 14th Amendment Due Process Clause or the 15th Amendment’s prohibition against the abridgement or denial of the right to vote on the basis of race or color, requires a showing of a discriminatory purpose and discriminatory result. Because a challenge under Section 2 of the Voting Rights Act of 1965 as amended does not require proving the element of intent, the majority of claims of racial and/or ethnic discrimination are brought under Section 2. Section 2 of the Voting Rights Act prohibits a state from imposing any voting qualification, standard, practice or procedure that results in the denial or abridgement of any citizen’s
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right to vote on account of race, color or status as a member of a language minority group. Thus Section 2 claims need only establish a discriminatory effect or result; intent is not a required element. Section 2 claims often involve claims of diluting the voting strength of a minority group by using multimember districts, or by the practice of “packing” or “fracturing” minority groups. It is important to note that the use of multimember districts in and of themselves is not unlawful. The use of a multimember district to dilute the voting power of a minority group in violation of Section 2 of the Voting Rights Act is unlawful. For example, if a minority group could constitute a majority of the population in a single member district of, for example, 65 percent of the population, and that group was instead included in a two-member multimember district and became only 32.5 percent of the population of the multimember district, the minority group’s voting power would be diluted. An example of “packing” would occur if it were possible to create two districts with a minority population consisting of 65 percent in each, but instead the minority group is “packed” into one district, for example a district whose population consists of 90 percent of the minority group, and then the other district consists of a minority population of only 40 percent.Thus, rather than having two majorityminority districts, there is only one supermajoritycontinued on page 30
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REDISTRICTING IN NEVADA IN 2011
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minority district and the minority group’s voting power is diluted. Finally, an example of “fracturing” is when a minority group is broken off into several districts. For example, if a minority group could be included in one district and would constitute 66 percent of the population of that district, thereby creating a majority-minority district, but instead the minority group is split up into three districts thereby consisting of only 22 percent of the population in those three districts and is not a majority-minority group in any single district, the minority group’s voting power is diluted. An effective minority-majority district is a district that contains a sufficient minority population to provide the minority community with an opportunity to elect a candidate of their choice. In early voting rights litigation, a rule of thumb developed that a district needed to contain a minority population of 65 percent to elect a representative of their choosing. The courts now recognize that the percentage to yield an effective minority-majority district varies by jurisdiction and minority group. Establishing that a minority group could constitute a majority of the population in a given district is only one element of proving a claim that a redistricting practice violates Section 2 of the Voting Rights Act.
Racial Gerrymandering & Traditional Districting Principles
While race must be considered to ensure compliance with the Voting Rights Act and to ensure against racial or ethnic discrimination (race conscious redistricting), race should not become the dominant and controlling rationale of a districting plan. Racial gerrymandering exists when race is the dominant and controlling rationale in drawing district lines and traditional race-neutral districting principles are made subordinate to racial considerations. Judicially recognized traditional districting principles include compactness of districts, contiguity of districts, preservation of political subdivisions, preservation of communities of interest, preservation of cores of prior districts, protection of incumbents and compliance with Section 2 of the Voting Rights Act. Compactness of a district cannot be overemphasized. The U.S. Supreme Court uses an “eyeball approach” to evaluate compactness of districts and has noted that redistricting is one area in which appearances do matter. A circle, square or rectangle would be examples of the most compact districts. Drastic departures from compactness are a signal something is amiss. Racial gerrymandering cases often involve issues of districts failing to comply with the principle of compactness.
Thornburg v. Gingles, 478 U.S. 30 (1986):
The U.S. Supreme Court established a three-prong test to prove a violation of Section 2 of the voting Rights Act:
Partisan Gerrymandering
In 1986, the U.S. Supreme Court held that political gerrymandering cases are justiciable under the equal protection clause (Davis v. Bandemer, 478 U.S. 109 (1986)). However, the plaintiff must show intentional discrimination and an actual discriminatory effect. In the seminal case, the U.S. Supreme Court held that unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade the influence of a group of voters on the political process as a whole. This is a standard no case has yet satisfied. In fact, in a recent decision, four Justices seemed willing to rule partisan gerrymandering no longer justiciable, while three justices proposed differing standards.
• The minority group must be
sufficiently large and geographically compact to constitute a majority in a single-member district; cohesive; and
• The minority group must be politically •
The majority votes sufficiently as a bloc to enable it usually to defeat the minority group’s preferred candidate.
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Public Participation
Public participation is encouraged in all aspects of redistricting. Consistent with this principle, the legislature’s Interim Committee on the Requirements for Reapportionment and Redistricting has adopted a recommendation to encourage public participation in the redistricting process and to make available redistricting workstations for the use of the public.
hONO R ROLL
The State Bar of Nevada Board of Governors and the Access to Justice Commission extend a special thanks to the following attorneys who generously accepted cases in November 2010 through the Legal Aid Center of Southern Nevada, Washoe Legal Services, Nevada Legal Services and Volunteer Attorneys for Rural Nevadans.
Adriana Rincon Angela Hensley Anthony Brooks Anthony Smith Bryan Hunt Cecilia Lee Christopher Carr Christopher Tilman Daniel Bonneville Dara Goldsmith David Mincin David Tanner Edward Kainen Eric Swanis Ernie Adler Franchesca Van Buren G. Lance Coburn Guinness Ohazuruike Holly Stoberski James Greene James Jimmerson Jason Naimi Jason Maier Jennifer Ann Griffith Soderlund Jennifer Hostetler Jennifer Sloan Hilsabeck John Graves, Jr. Kara Hendricks Kari Molnar Kimberly Cooper Kriston Whiteside Laura Deeter Lawrence Winking Lindsay Demaree Lisa Kent Lori Jordan Margaret Manes Marjan Hajimirzaee Marjorie Guymon Mark Smith Marsha Kimble-Simms Matthew McAlonis Matthew Wagner Maya Bodhi Meng Zhong Michael Lynch Michael Paul Rhodes Michael Terry m’Ryah Littleton Patricia Winnie Racheal Mastel Rena Hughes Rob Chung Robert Dickerson Ronald Green Sue Trazig Cavaco Thomas Kummer Thomas Askeroth Timothy Sutton Victoria Nelson William Devine
1. While the Nevada Constitution requires the legislature at its first session after the taking of the U.S. decennial census to perform its redistricting duty, in 2001, with a limited session of 120 days, the legislature completed its redistricting efforts in a special session immediately following the regular session. Since no election was impending at that time, there was no immediate need for judicial relief. Only if a legislature failed to redistrict in sufficient time for the next election process after the decennial census is it likely that a court would do much more than mandate the legislature to adopt a redistricting plan in a timely fashion. Failure of a legislature to enact a constitutional redistricting plan in the face of an impending election would ultimately result in a courtdrawn plan being imposed on the election process. Thus, it is possible that if the Nevada Legislature is unable to complete its redistricting effort during the 2011 Regular Session of the Legislature, such efforts would be completed during a special session.
ScOtt G. WASSermAn serves as the chief executive officer and special counsel to the Board of Regents of the Nevada System of Higher Education. Previously he served as a deputy attorney general in the civil division of the Office of the Attorney General and served in the Nevada State Legislature as chief deputy legislative counsel. During his 18-year tenure with the Nevada Legislature, Wasserman was the redistricting legal advisor to the Legislature and its committees charged with the preparing for and carrying out the redistricting tasks during the 1990s and 2000s redistricting cycles.
ASK-A-LAWYER, CLINICS, AND OThER BRIEF SERvICES
Anna Farrales Barbara Gruenewald Corinne Price David Carroll Eric Lerude Felicia Galati Gabrielle Jones Jennifer Roberts Kate McLendon-Kent Kristina Chandler Laura Deeter Mario Fenu Mariteresa Rivera-Rogers Muriel Skelly Rene Valladares Rhonda K. Forsberg Richard Cornell Robert Blau Tera Hodge Trina Dahlin Valerie Cooney Vicky Mendoza William Devine II William Kapalka
BOLD honors multiple cases accepted and/or sessions conducted within the month. February 2011 Nevada Lawyer 31
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