League of Women Voters of Maryland, Inc. ---- Fact Sheet -- January 2004
Go to: LWV Montgomery County Home Page
REDISTRICTING FACT SHEET
In
a recent speech, Walter Cronkite noted, “In Massachusetts, prior to the
election of 1812, the party in power was facing defeat when the governor,
Wilbridge Gerry, redrew districts to consolidate his party’s strength and weaken
that of the opposition. A local
newspaper editor thought one tortuously drawn district resembled a salamander
and coined the word used ever since to describe the product of partisan
redistricting – a ‘gerrymander’.
Gerrymandering has been and still is a bipartisan sin.’’
The
redistricting process and results in Maryland following the census of 2000
indicated that this was a topic ripe for study by LWVMD. The committee has researched the
redistricting processes for both congressional and legislative districts for
all fifty states. This condensation of
our findings is presented to help all League members in Maryland to discuss redistricting, answer the
consensus questions and, perhaps, embark on a effort to improve the Maryland
process.
Supreme Court
Redrawing the boundaries of legislative and
congressional districts after each decennial census has been primarily the
responsibility of state legislatures since the earliest days of the
republic. As the nation’s population
began to shift from rural to urban, many legislatures lost their enthusiasm for
this decennial task and failed to carry out their constitutional
responsibility. For decades, the U.S.
Supreme Court declined repeated opportunities to enter the “political thicket”
of redistricting and refused to order the legislatures to carry out their
duty. However, in l962, the Court held
that federal courts did have jurisdiction to consider constitutional challenges
to redistricting plans.
As the courts began striking down redistricting plans for
inequality of population, Congress enacted the Voting Rights Act (VRA) of l965
to remedy the inequality of opportunity afforded to racial and ethnic
minorities to participate in elections and required pre-clearance of changes in
state laws in many instances. The
Justice Dept. began to use this new authority to require that redistricting
plans in selected states be pre-cleared. In the l970s, the Court developed a standard
of population equality that required legislative districts to differ by no more
than 10% from the smallest to the largest.
In the next decade they refined the standard of equality that required
them to be mathematically equal unless justified by some “legitimate state
objective’.
The Court’s work
on population was then essentially complete but its rules for treatment of
minorities were far from settled. After
most of the plans based on the 1980 census had been enacted, Congress amended
the VRA to make clear that it applied to any plan that resulted in
discrimination against a member of a racial or ethnic minority group,
regardless of the intent of the plan’s drafters. Drafters of redistricting plans after the
l990 census went to great lengths to draw “majority-minority” districts
wherever they might be needed to obtain pre-clearance and some of the districts
took on bizarre shapes, causing them to be labeled “racial gerrymanders”. Many
of those plans had to be adjudicated in the federal courts.
A case on political gerrymandering has recently reached
the Supreme Court about Pennsylvania’s plan, arguing that extreme partisanship
by the Republican-controlled General Assembly diluted Democratic voting
power. The Court remains in the
“political thicket” it tried for so long to avoid. A decision on ‘political redistricting’ is
expected in early 2004.
A Brief History of Redistricting in Maryland
Legislative
In l960, Maryland was one of the many states in which the
legislature was seriously malapportioned.
Fast-growing suburban areas were under-represented and rural areas and
Baltimore City were
over-represented. At that time, the
apportionment of the General Assembly was fixed in the state’s Constitution:
each county had one Senator, Baltimore City had six; counties had between two
and six delegates, Baltimore City had thirty-six. No attempt was made to reapportion the
legislature to reflect the 1960 census; there was no constitutional or
statutory requirement to do so.
In the early 1960s after the Supreme Court handed down
its landmark decisions making equal population the basic requirement for both
houses of state legislatures, the Court applied the “one man, one vote” rule to
a Maryland case and declared our legislative districts unconstitutional. In l965 the General Assembly adopted a plan
retaining a senator for each county in spite of great population
variances. Only after the Maryland Court
of Appeals voided this plan did the General Assembly shape a plan with
districts of substantially equal population which the court accepted in
l966. In 1970 voters approved a
constitutional amendment requiring reapportionment following each census, and
established the procedure in effect today – the governor presents a plan to the
legislature which goes into effect automatically if the legislature fails to
agree upon an alternate plan within 45 days.
The General Assembly has never adopted an alternate plan. An additional constitutional amendment in
1972 changed the size of the General Assembly so that senators and delegates
could run from the same multi-member districts.
As early as 1978, constitutional amendments have been
introduced calling for the establishment of a bipartisan commission to prepare
reapportionment plans for both legislative and congressional districts. They also specified standards which would
more strictly define “equal population” and “compact” and would prohibit
drawing lines to favor any person, party or group. These proposals have received little serious
consideration.
The governor’s 1991 legislative district plan was
challenged in state and federal courts, primarily on equal population and
political gerrymandering grounds. The
Maryland Court of Appeals appointed a special master and accepted his finding
that the state constitutional requirement that districts have “substantially
equal population” was not violated by the plan and that the plan was not a
partisan gerrymander according to the principles previously outlined by the
Supreme Court. However, minority vote dilution
of black voters in the region was found and the court ordered remedial action. The state prepared and submitted a modified
districting plan for house districts on the Eastern Shore which included a
single-member district with a majority-black voting age citizen population.
This 1992 redistricting plan also created a number of
districts which crossed county boundaries.
The Court of Appeals, although it ultimately approved the plan, cited it
as “perilously close” to running afoul of constitutional requirements. The plan adopted subsequent to the 2000
census added a number of these cross-jurisdictional districts, and the Court of
Appeals declared the plan unconstitutional and drew its own legislative
redistricting plan.
Congressional
When Maryland gained its eighth congressional district
as a result of the l960 census, its house districts were extremely
malapportioned. Baltimore City and rural
areas were over-represented and suburbs in Baltimore, Montgomery and Prince
George’s counties were under-represented.
In l960 the General Assembly created the additional district by simply
dividing the largest district, leaving all other districts essentially
unchanged. LWVMD petitioned this bill to
referendum and the redistricting plan was defeated by the voters. In l963 the General Assembly passed a second
plan which did not correct the inequities.
This plan was also petitioned to referendum, but before a vote could be
taken, the constitutionality of the plan was challenged in federal court.
While the MD case was under consideration, the US Supreme
Court declared that the population of congressional districts should be as
nearly equal as practicable. Finally, in
1966 the U.S. District Court declared another plan unconstitutional and drew a
plan for eight districts itself.
Although these districts were compact, contiguous and equal in
population, the plan preserved three Baltimore City congressional districts by
extending them into surrounding counties.
In l971, The General Assembly drew new lines for congressional districts
without challenge; Baltimore City was reduced to essentially two districts.
During the 1991 round of redistricting, the governor’s
congressional district plan was challenged in U.S. District Court on equal
population and vote dilution grounds.
The court upheld the plan, stating that the population variance was
acceptable in light of the state’s interest in keeping major regions intact, in
creating a majority-minority district, and protecting incumbents.
Redistricting Across the Nation
Instructions to Readers
Before you delve into fifty redistricting processes
and their details, it may be helpful to shut your eyes and conjure up a big
U.S. wall map. The map does not help
much if you are trying to envision the requirement of equal population, but you
might be able to see mountains and waterways; straight boundaries vs. wiggly
ones; rural vs. industrial; liberal vs. conservative, etc. All of these will
become real components when incorporating the
criteria of compact, contiguous, communities of interest etc. in the
variety of redistricting processes used by states following each decennial census. For example, Hawaii contends with “canoe
districts’ and at least one member of the Colorado redistricting commission
must be from the ‘western slope’.
Finally, bring up a mental map of
Maryland and its geopolitical realities. How do you redistrict
that?? It would also be very
instructional for you to look at the glossary of redistricting terms appended
to this fact sheet
Statutory Requirements for Legislative Districts
States vary widely in the mandatory requirements for
creating new districts. The most
frequently cited criteria are contiguous and compact; equality of population is
mentioned by only 13 states, probably because federal case law establishes it
with no need for restatement.
Many states (28) set criteria for political boundaries
such as keeping whole counties, cities, unincorporated towns, boroughs,
townships or wards. Fifteen states
mandate or request ‘due regard ‘ for keeping communities of interest intact,
without specific definitions for ‘communities of interest’. A few require giving regard to the cores of
prior districts or geographical boundaries.
Five states require the process to be blind to the residence locations
of incumbents and political party registrations while an equal number allow the
process to protect incumbents. Oregon
requires that the district must be connected by transportation lines. Arizona voters passed a proposition in 2000
stating, “To the extent practicable, competetive districts should be favored
where to do so would create no detriment to the other goals.”
Authorities for Legislative Redistricting
Legislatures
Constitutionally or by statute, most states designate the
legislature as the responsible entity for drafting the redistricting plan which
will be considered a regular bill to be enacted with the provision for a
gubernatorial veto. Some legislatures
have a redistricting committee and others have an advisory committee made up of
legislative leaders (or their designees or named party officials) to do the
work of drawing up the plan, but the legislature has final authority. A few states have a provision for a back-up
commission to make the decision if the
legislature cannot agree by the deadline.
Arkansas bypasses the legislature by giving the complete
responsibility to a Board of Apportionment made up of the governor, secretary
of state, and attorney general. Iowa is unique in that it uses its
Legislative Services Bureau to develop
up to three ‘criteria driven’ plans for presentations to the legislature. Included in the process is an advisory
commission consisting of four ‘civilian’ members chosen by each caucus in the
legislature and chaired by a 5th member chosen by the four. Their role is to advise only upon request;
the legislature has the final authority.
Maryland is the only state where the governor has the responsibility for
drafting the plan. The legislature has final authority.
Commissions
Some states have appointed commissions in an attempt to
remove the authority for legislative redistricting a step away from the elected
officials. These commissions which have
final authority vary in their degree of independence from elected
officials. Some members of most
commissions are appointed by the legislative leaders (Alaska, Colorado, Hawaii,
Montana, Washington) or they are the legislative leaders or other legislators
(Pennsylvania, Rhode Island), or they are appointed by the major parties
(Idaho, New Jersey) or by the Governor from the major parties (Missouri). In some cases one or two people are added as
public members considered to be ‘tie-breakers’.
In Arizona, the Commission on Appellate Court
Appointments (CACA) appoints a pool of 25 nominees—10 each from the two largest
parties and five not from either of the large parties. Legislative leaders then choose four members
from the pool and these four appoint a chair.
If the four deadlock on choice of a chair, the CACA appoints one from the pool.
Colorado has an 11-member commission. First, the majority and minority leaders of
each house of the legislature designate themselves or an alternate; then the
governor appoints three members and finally the Chief Justice appoints four
members to assure a commission that meets three criteria: (1) no more than six
members from one party, (2) each congressional district is represented, and (3)
one member is from the Western Slope.
Probably the commissions who are the most independent
(Alaska, Hiawaii. Idaho, Missouri, Montana,
Washington) are those in which all the members are ‘civilians’, i.e.
currently they may not be elected officials nor will they be allowed to run in
defined future elections.
Statutory Requirements for Congressional Redistricting
The relatively small populations of seven states earn
them only one congressional
representative so they are, therefore, spared the process of congressional redistricting—Alaska,
Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming.
Only 17 of the remaining 43 states include criteria in
their state constitutions or statutes.
The criteria strongly mirrors those for legislative districts:
contiguous(16), respecting political boundaries (14), compact(12),
keeping communities of interest intact (7), equality of
population(6), ignoring or not favoring
incumbents(5), maintaining cores of prior districts(4), protecting
incumbents(3), having the district connected by transportation lines(1), and favoring competitive districts(1). The federal case law of the last half
century, summarized earlier, does substitute as a basis for state action when
constitutions and statutes are silent.
Although it has been conventional wisdom that
redistricting occurs only once a decade, recent happenings indicate that this
is another area where statutes/constitutions may need to be amended.
Authority for Congressional Redistricting
There are few significant differences between the
authority for congressional versus legislative redistricting in the 43 states
with more than one congressional district.
Legislatures are involved in some manner in most of the states, either
primarily responsible for the drafting the plan or passing the legislation or
both.
Court Action on Redistricting Plans
Only about half of the redistricting plans for
congressional seats or for either house of the legislature escape court
action. After the 2001 round of
redistricting, about ten percent of the time the courts drew the plan after a
legislative impasse. They rejected or corrected a dozen or so more, often at
the instigation of a citicitizen who believes that individual constitutional
rights have been violated. Two plans
still have challenges pending and Maine has not finished action.
The Redistricting Process in Maryland
Congressional
Both the Maryland Constitution and statutes are silent on
the matter of congressional redistricting.
Congress has given the state legislature to redistrict congressional
seat. The only federal statutory
requirement is that congressional districts be single-member districts. The Maryland plan is introduced as a regular
bill in the General assembly and must be passed by both houses and signed by
the governor who has veto over the plan.
Legislative
Article III, Section 5 of the Maryland Constitution
requires the Governor to prepare a legislative districting plan following the
decennial census. The Governor must
present the plan to the President of the Senate and the Speaker of the House of
Delegates. The presiding officer must
have the plan introduced as a joint resolution on the first day of the regular
session in the second year following the decennial census.
If the General Assembly has not adopted
another redistricting plan by the 45th day of the session, the
governor’ s plan as presented becomes law.
Article III, Sections 2 and 3 set out the requirements
for redistricting the General Assembly.
The size shall be 47 senators and 141 delegates. One senator and three delegates are to be
elected from each district. For the
purpose of electing delegates, a district may be subdivided into 3
single-member districts or one- single member district and one multi-member
district. An additional ‘resident
delegate’ requirement has been added to the Assembly’s joint resolution since
l970 prohibiting two delegates who represent a district that includes more than
one county or parts of counties from living in the same county.
Article III, Section 4 requires legislative districts to
be substantially equal in population, compact in form and contiguous. It also requires a legislative redistricting
plan to give ‘due regard’ to the natural boundaries and the boundaries of
political subdivisions. Article III also
requires public hearings to be held before the legislative plan is enacted.
Although not required by law, since l981 the Governor has
appointed an advisory committee to draft his plan for legislative and
congressional districts. The committee
sets the legal and policy guidelines it will use in creating the plans. It receives input from legislators, community
organizations and the general public through a series of public hearings
throughout the State.
Glossary of Redistricting Terms
Census block:
The smallest unit of census geography for which the Census Bureau collects
data. The boundaries for these areas are
generally streets or other notable physical features.
Compactness:
Refers to extent to which a district’s geography is dispersed around its
center. Districts should not be too
diffuse (i.e., extend too far from the center of the district)
Commission:
A statutory or constitutional body charged with researching or implementing
policy. Redistricting commissions have
been used to draw districts for legislatures and Congress.
Community of interest: A group of people united by a common social,
political, economic, or ethnic similarities.
Court decision have come down discarding some plans that disregarded
communities of interest.
Competitiveness:
Districts are considered competitive is there is a 10% or greater variance
between the votes obtained by the winning and the losing candidates. Districts are considered highly competitive
if there is a 5% or less variance between the votes obtained by the winning and
the losing candidates.
Contiguity:
A requirement mandating that a district be in one piece. A district is considered contiguous if all
parts of the district touch one other at more than one point.
Deviation:
The degree to which a district’s population can vary from the ideal size.
Gerrymandering:
The drawing of non-compact, tortuous districts to benefit a political
party. Many so-called gerrymandered
districts have been challenged in court. In 1962, the Supreme Court ruled that
districts must follow the principles of “one man, one vote” and have fair
borders and an appropriate population mixture.
The Supreme Court has subsequently found that manipulating districts to
give an advantage to one political party was unconstitutional.
There are two basic techniques in Gerrymandering:
Packing: Drawing district boundary lines so that the members
of the minority are concentrate, or “packed” into as few districts as
possible. They become a supermajority in
the packed districts. They can elect
representatives from those districts, but their voters in excess of a simple
majority are ‘wasted.” They are not
available to help elect representatives in other districts, so the cannot elect
representatives in proportion to their numbers in the state as a whole.
Fracturing: Drawing district lines so that the minority
population is broken up. Members of the
minority are spread among as many districts as possible, keeping them a
minority in every district, rather than permitting them to concentrate their
strength enough to elect representatives in some districts. Also known as “cracking.”
Minority-majority district: A district containing a majority (50 % plus 1) of
minority population
Minority opportunity district: A district that provides minority voters with an
equal opportunity to elect a candidate of their choice regardless of the racial
composition of the district. In this
type of district, minorities constitute less than 50% of the voting age
population.
Multi-member district: A district that elects two or more members to a
legislative body.
Natural boundaries: District boundaries that are natural geographic features (rivers,
mountains, etc.)
Pre-clearance:
Obtaining approval from either the U.S. Department of Justice or special court
in the District of Columbia of voting changes, including redistricting
plans. The Justice Department or court
must review the plans in order to prevent the dilution of minority voting
strength. The following states are
entirely subject to pre-clearance: Virginia, South Carolina, Georgia, Alabama,
Mississippi, Louisiana, Texas, Arizona and Alaska. The following states are only partially
covered (i.e., only certain sections of the state must obtain pre-clearance:
California, Florida, North Carolina, New York, Michigan, New Hampshire and
South Dakota.
Reapportionment:
The process of reassigning a given number of seats in a legislative body to
established districts, usually in accordance with an established plan or
formula. The number and boundaries of
the districts do not change, but the number of members per district does.
Redistricting:
The process of changing the district boundaries. The number of members per district does not
change, but the district’s boundaries do.
Single-member district: District electing only one representative.
Voting Rights Act of 1965: Prior to 1965, many black voters, in spite of the
provision of the 15th Amendment that the right to vote shall not be
denied or abridged on the basis of race, color or previous condition of
servitude, were disenfranchised.
White-dominated legislatures prevented blacks from voting though poll
taxes, literacy tests, vouchers of “good character” and disqualification for
“crimes of moral turpitude.” Although
the laws appeared prima face to be “color-blind” they were designed to exclude
black citizens disproportionately by allowing white election official to apply
the procedures selectively., By 1910, the overwhelming majority of blacks sin
the south had been disenfranchised.
By 1965, the civil rights
movement brought the disenfranchisement of blacks to the front of the political
agenda. Public sentiment turned against
the voting restrictions, especially after white supremacists committed several
high-profile violent acts against voting rights activists.
The Voting Rights Act
temporarily suspended literacy tests, and provided for the selection of federal
examiners, vested the power to registered qualified citizens to vote, in those
jurisdictions “covered” under a formula in the stature. In addition, under Section 5 of the Act,
these covered jurisdictions had to acquire pre-clearance for new voting practices and procedures from
either the District Court for the District of Columbia or the U.S. Attorney
General. Section 2 of the Act places a
national restriction on the denial or abridgment of the right to vote on the
basis of race or color.
CONSENSUS
QUESTIONS – Redistricting in Maryland
LEGISLATIVE REDISTRICTING
The Maryland Constitution
currently gives the Governor the authority for redistricting - “Following each
decennial census of the United States and after public hearings, the Governor
shall prepare a plan setting forth the boundaries of the legislative districts
for electing of the members of the Senate and the House of Delegates.” With respect to criteria for the
redistricting plan, the Constitution states: “Each legislative district shall
consist of adjoining territory, be compact in form, and of substantially equal
population. Due regard shall be given to natural boundaries and the boundaries
of political subdivisions.”
(1)
Should
the criteria for legislative redistricting stated in the Maryland Constitution
be changed or expanded?
The criteria currently in the Maryland Constitution
are considered appropriate minimal standards for redistricting. These criteria are divided into two
categories, strict criteria (each district shall.....)
and subordinate criteria (due regard
shall be given to....). Should any of
the following criteria be added to the Constitution? Please note which criteria you propose should
be “strict” criteria or “due regard” criteria:
Consider: keeping communities of interest intact,
keeping core of prior districts intact,
not favoring a particular political party, protecting incumbents/not protecting
incumbents (no regard for incumbents), creating competitive districts or other
criteria.
(2)
Who
should have the authority to draft the legislative redistricting plan?
Consider: the
Governor, the Legislature, an Independent Commission, a state agency (such as
Department of Legislative Services), or the Court of Appeals or other.
(3)
If
an independent commission were given authority to draft the legislative
redistricting plan, who should have the authority to appoint members to this
commission?
Consider:
the Governor, the Legislature, Judges/Chief Judge of Court of Appeals,
political parties, others, or some combination of the preceding.
(4) If an independent commission were given
authority to draft the legislative redistricting plan,
what should
be criteria for membership on this commission?
Consider:
not an elected official, not an appointed state official, not allowed to become
an elected official for some period after the enactment of the plan, not a
political party official, not a public official, others. Also, should the commission contain
geographical distribution (some from Western Maryland, Eastern Shore, etc) and
political distribution (members required from each major political party)?
(5)
Who should have the final approval for the
legislative redistricting plan?
[Any
citizen has the right to sue the state over a redistricting plan that he or she
believes violates his state or federal constitutional rights, and redistricting
litigation is common. This question does
not address this circumstance.]
Consider:
the appointed redistricting commission, the Legislature, the Governor (veto
power over the Maryland Court of Appeals (should Maryland law mandate a review
of the plan?)
CONGRESSIONAL REDISTRICTING
Currently, there is no mention in the Maryland
Constitution of Congressional redistricting.
Although there are no specific criteria for Congressional redistricting
within the Maryland Constitution, federal case law has mandated that states are
required to redistrict after the census, the districts should be substantially
equal in population, the districts should be compact, districts may not be
drawn in such a way as to dilute a minority population’s voting strength, race
should not be the predominant consideration in drawing district boundaries and
a redistricting plan may not interfere with a minority party’s ability to
participate in the electoral process to the point that party is effectively
shut out of the legislative process altogether.
(6)
Should
the Maryland Constitution contain requirements or criteria for Congressional
redistricting?
If so, which criteria should be included?
Consider:
Deadline (such as prior to federal election
immediately following the availability of decennial census data), frequency
(such as only once each ten years),
respecting political boundaries, respecting geographical
or natural boundaries,
keeping communities of interest intact, keeping core of
prior districts intact, not
favoring
a particular political party, protecting incumbents/not protecting incumbents (no
regard for incumbents), creating competitive districts, or others.
(7)
Who
should have the authority to draft the Congressional redistricting plan?
Consider:
the same person/entity as that which drafts the legislative plan, the Governor,
the Legislature, an Independent Commission, a state agency, the Maryland Court
of Appeals or others.
(8)
If an independent commission is given the
authority to draft the Congressional redistricting plan, who should have the
authority to appoint members to this commission?
Consider:
the same person(s) or entities who appoint the commission for legislative
redistricting, the Governor, the Legislature, Judges/Chief Judge of Court of
Appeals, political parties, others or some combination of the preceding.
(9)
If an independent commission is given the
authority to draft the Congressional redistricting plan, what should be criteria for membership on
this commission?
Consider: same as for commission responsible for
legislative plan, not an elected official,
not
an appointed state official, not allowed to become an elected official for some
period after the enactment of the plan, not political party official, or
others. Also, should the commission
contain geographical distribution (some from Western Maryland, Eastern Shore,
etc) and political distribution (members required from each major political
party)?
(10)
Who should have the final approval for the
Congressional plan?
[Any
citizen has the right to sue the state over a redistricting plan that he or she
believes violates his state or federal constitutional rights, and redistricting
litigation is common. This question does
not address this circumstance.]
Consider:
the appointed redistricting commission, the Legislature, the Governor (veto
power over the Maryland Court of Appeals (should Maryland law mandate a review
of the plan?)
(11)
Should
the League support changes in Maryland’s constitution and/or statutes that
would create a redistricting
process which would promote fair and effective representation in the state
legislature and the House of
Representatives with maximum opportunity for public scrutiny?