2000s Redistricting Case Summaries - Wisconsin Legislaturelegis.wisconsin.gov/senate/16/miller/files/2000s Redistricting Case... · 2000s Redistricting Case Summaries Page 3 of 65

2000s Redistricting Case Summaries Page 1 of 65

2000s Redistricting Case SummariesThis page describes cas es related to redis tricting following the 2000 census . As new complaints are fi ledand cases decided , we encourage you to send the NCSL redistricting listserv a message that includes thecitation , a hypertext link if available, and a brief description of the issues. As time allows, we willconsolidate that information on this page .

Summaries of cases arising from the 1990 census may be found at: 1990s Redistrictin,e Case Summaries.Names and contact information for redistricting experts in each of the 50 state legislatures are includedwith those summaries .

Many of the documents to which these summaries are linked are in portable document format (.pd fl . Youwill need the AdobeOO AcrobatO reader to view them. If you do not have it installed on your system, youmay download it for free from the Adobe web site.

Alabama

Sinkfzeld v. Bennett, No. CV 93-689-PR (Cir. Ct. Montgomery Co. 2001)

This litigation concerning congressional districts began in 1993 based on the 1990 census, as described inAlabama Redistrictiug Cases: the 1990s. In January 2001, plaintiffs John and Camilla Rice moved thatthe Court vacate its consent decree from the previous decade and "relinquish the jurisdiction it hadretained over future redistricting efforts." See Gustafson u.Iohns, No. 01-0447-BH-S, 215 F. Supp.2d1279 (S.D. Ala. Jul. 8, 2002) (three-judge court). The Circuit Court denied the motion and an appeal wastaken. Id. at 1249. On October 19, 2001,the Alabama Supreme Court "rejected the appeal." Id. at 1250.

On March 13, 2001, plaintiffs moved to file a supplemental complaint that the 2000 census would showthat the congressional and state board of education districts were malapportioned and diluted the votingstrength of African Americans. Plaintiffs requested the court to defer proceedings on the complaint "longenough to afford the Alabama Legislature a full and fair opportunity to enact and to obtain Voting RightsAct preclearance of redistricting plans for Congress, the Alabama State Senate, the Alabama House ofRepresentatives, and the Alabama State Board of Education." Should the Legislature fail in that task,plaintiffs requested the court to carry it out.

Barnett v. Alabama, No. Civ.A. 01-0433 (S.D. Ala. Nov. 7, 2001) (three-judge court)

On June 15, 2001, plaintiffs challenged the Legislature's failure to re-draw the Alabama House andSenate districts following the 2000 census. The Legislature passed plans that were approved by thegovernor on July 3, 2001. When those plans were precleared in October and November 2001, the districtcourt dismissed the complaint as moot.

Barnett v. Alabama, No. Civ.A. 01-0434-BH-S, 171 F. Supp.2d 1292 (S.D. Ala. Nov. 20, 2001) (three-judge court)

Filed simultaneously with the challenge to the Alabama House and Senate districts, this litigationchallenged Alabama's congressional districts as unconstitutional. The case (along with the Congressionaldistricts claim in Montiel v. Davis, No. CV-0 1-D-1376-N (S.D. Ala.)) was transferred to the MiddleDistrict of Alabama to be consolidated with the Douglas litigation, discussed below.

Montiel v, Davis, No. Civ_A_01`0447-BH-S, 215 F. Supp.2d 1279 (S.D. Ala. Jul. 8, 2002) (three-judgecourt)

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separation-of-powers doctrine did not preclude.judicial review of redistricting claims made under statelaw . The Court further held that the plaintiffs could not contend for the first time on appeal that theAlabama Senate redistricting plan ran afoul of a different part of Ala. Const. 1901 Article IX, §200because it split county lines.

Douglas v. Alabama, No. CV-2001- 1 985 (Cir. Ct. Montgomery Co.)

When the Legislature failed to redraw Alabama's Congressional districts following the 2000 census ,plaintiff alleged state and federal constitutional violations in state court. The defendants removed thelitigation to federal court .

Douglas v. A labama, No. 0 1 -D-922-N (M.D . Al a. Apr. 29, 2002) (three-judge court)

This litigation arose in state court and was removed to federal court, where it was consolidated with theCongressional district claims in Montiel v. Davis, No . CV-0 1-D-1376-N (S.D. Ala.), and Barnett v.Alabama, No. 0 1-0434 (S.D. Ala.). The federal court allowed the Legislature time to draw a plan, andwhen it failed to do so, the case proceeded to trial. During the trial, the Legislature drew a plan that theGovernor signed into law. That plan was then submitted for preclearance under § 5 of the Voting RightsAct. The federal court decided to wait for a preclearance determination by U.S. Department of Justice,rather than proceeding "to implement an interim plan or enter an injunction , as urged by the Plaintiffs."Order at 4. When preclearance was granted, the district court dismissed the case as moot. Costs and feesfor the court's experts were assessed against the state; plaintiffs were not entitled to attorney's fees.

Gustafson v. Johns, No. 05-00352-CG-C, 4 34 F. Supp .2d 1246 (S .D . Al a. May, 22, 2006) (three-judgecourt), aff'dNp. 06-135 g , 2 13 Fed.Appx. 872 ( ll th Cir . Jan . 9, 2007) (unpubl i shed)

On June 16, 2005, plaintiffs challenged the Alabama House and Senate redistricting. The 19 votersalleged that the redistricting plans violated the one-person, one vote standard, were partisangerrymanders, and violated plaintiffs' First Amendment right to freedom of association. The district courtheld that res judreata barred the litigation as the present plaintiffs "were virtually represented by priorplaintiffs." 434 F. Supp.2d at 1254. The decision includes a lengthy description of the variousredistricting litigation commenced following the release of the 2000 census figures.

Gustafson v. Johns, No. 06-13508 2 1 3 Fed.Appx. 8 72 (1 l th C i r. Jan. 9 , 2007)

The first issue before the Eleventh Circuit was whether the appeal from the three-judge court wasproperly before it, or whether that appeal properly belonged in the United States Supreme Court. TheEleventh Circuit concluded that it had jurisdiction because "a finding that a plaintiffls claim is barred byresjudicata is not a reso lution on the merits of the constitutional claim." 231 Fed. Appx. at 875, re lyingon MTM, Inc. v. Baxley, 420 U.S. 799 (1975). The Eleventh Circuit affirmed the district court's holdingthat resjudicata barred the litigation on a theory labeled "virtual representation."

Owens v. Jordan , No. CV-2002-1 51 2 (Cir . Ct. Montgomery Co. S ep . 2006), aff'd No. 1060 1 89 (Ala .)

Plaintiff contended that the redistricting plan for the Alabama State Senate that was enacted in 2001 wasunconstitutional under state law. Specifically, she alleged that it violated Ala. Const. 1901 art. IX, § 200because it split too many counties and did so unnecessarily. In a September 2006 Order, the Circuit Courtheld that Plaintiffls claims were barred by resjudicata because of Montiel v. Davis, 215 F. Supp.2d 1279(S.D. Ala. 2002) (three-judge court), and Rice v. English, 835 So.2d 157 (Ala. 2002). The Courtadditionally found that the case was due to be dismissed for failure to actively prosecute.

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2000s Redistricting Case Summaries

State Contacts

James L. BaldwinAssistant Attorney GeneralP.O. Box 100300Juneau, AK 99811-0300907/465-3600907/465-2520 FaxJimBaldwin law_stateak.us

Arizon a

Tamara CookDirectorDivision of Legal & Research ServicesState Capitol, Room 3Juneau, AK 99801-1182907/465-2450907/465-2029 Fax

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Navajo Nation v. Arizona Indep. Redistricting Comm'n, Order, No. CV 02-0799-PHX-ROS (D. Ariz.May 29, 2002), Opinion, 230 F. Supp.2d 998 (D. Ariz. Sept. 19, 2002)

A three-judge court ordered that the revised legislative plan certified by the Independent RedistrictingCommission to the Secretary of State on May 28, 2002, be used on an emergency interim basis for the20021egislative elections only, with the members elected to serve for a full two-year term.

Arizona Minority Coalition for Fair Redistricting v. Arizona Indep. Redistricting Comm'n, No. CV 2002-004380, and Ricarte v. Arizona Indep. Redistricting Conzm'n, No. CV 2002-004882 (Superior Court,Maricopa Co., Jan. 16, 2004), aff'd in part, rev'd in part, & remanded, No. 1 CA-CV 04-0061 (Ariz. Ct.App. Oct. 21, 2005)

The complaint in Arizona Minority Coalition for Fair Redistricting al leged that the legislative planadopted by the Independent Redistricting Commission on November 3, 2001, violated Ariz. Const. art.IV, part 2, § 1(14) F., which requires that "To the extent practicable, competitive districts should befavored where to do so would create no significant detriment to the other goals." It alleged that the plandecreased the number of competitive legislative districts from nine to six, even though other plans werepresented to the Commission that maintained nine competitive districts. It requested that the Court enjoinuse of the plan for the 2002 election and direct the Commission to adopt a plan with more competitivedistricts.

The complaint in Ricarte alleged that the congressional plan adopted by the Independent RedistrictingCommission on November 3, 2001, violated Ariz. Const. art . IV, part 2, § 1(14) F., which requires that"To the extent practicable, competitive districts should be favored where to do so would create nosignificant detriment to the other goals." It alleged that the plan created only one competitivecongressional district (de fined as one with less than a seven percent advantage for one party, based onparty voter registration), even though other plans were presented to the Commission that created morethan one competitive district. It also alleged that the plan concentrated Hispanic voters into CongressionalDistrict 4 "far beyond the numbers necessary for Hispanic voters to be able to elect candidates of theirchoice and thereby preventing them from having a reasonable opportunity to influence elections in otherdistricts." It requested that the Court enjoin use of the plan for the 2002 election, direct the Commissionto adopt a valid plan, and adopt a court plan for use until the Commission adopted a valid plan .

The 2002 election was run using a revised interim plan approved by the federal court in Navajo Nation v.Arizona Indep. Redistricting Comm'n, No. CV 02-0799-PHX;ROS (D. Ariz. May 29, 2002), describedabove. On August 14, 2002, the commission adopted its final legislative plan to govern the elections of2004 and beyond.

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State Contacts

David Ferguson Marty GarrityDirector Bureau of Legislative ResearchBureau of Legislative Research State Capitol, Room 315State Capitol, Room 315 Little Rock, AR 72201Little Rock, AR 72201 501/682-1937501/682-1937 501/682-1936 Fax501/682-1936 Fax Mart G arkle_s�tate•[email protected]

Phyllis PocheDirectorCensus State Data CenterUniv. of Arkansas-Little Rock2801 South UniversityLittle Rock, AR 72204501/569-8530501/569-8538 Faxpnpq_che ualr.edu

California

City ofLos Angeles v. Evans, No. CVO1 -1671_ (C .D . Cal ., complaint dated Feb . 2 1 , 2001 )

Page 7 of 65

The complaint alleged that Secretary of Commerce Donald Evans revoked the delegation of authority tothe Director of the Census to make a final determination whether statistically adjusted figures should bereleased to the States and localities for redistricting purposes (by amending 15 C.F.R. Part 101) withoutallowing a period for notice and comment on the revocation, in violation of § 553 of the AdministrativeProcedures Act. The complaint requested a declaration that the revocation was invalid and an injunctionagainst implementing it.

The complaint was dismissed on or about Apri126, 2001.

Cano v. Davis, No. CV O1-08477 NIMM (RCx) (C .D . Ca. June 1 2, 2002), aff'd 5 37 U. S . _(Jan. 1 3,2003) (No . 02-577 ) (mem .)

Plaintiff Latino voters and advocacy groups challenged two congressional districts and one state senatedistrict enacted September 27 , 2001. They contended that the three districts violated the Voting RightsAct and the Equal Protection Clause of the Fourteenth Amendment. The court granted summaryjudgment for the defendants, saying that the Legislature had "permissibly exercised its broad discretion todraw new district lines."

State Contact

Darren P. ChesinChief ConsultantSenate Elections, Reapportionment & Constitutional Amendments Committee

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On May 9, 2003, the Colorado General Assembly enacted a new congressional redistricting plan, SenateBi1103-352. Plaintiffs alleged in state court that the General Assembly had violated a variety of state lawsregarding the procedure by which the lawmakers must introduce, read, debate, and pass bills. The casewas removed to federal court.

Keller v. Davidson, No. 03-Z-1482 (CBS) (D. Colo. Sept. 25, 2003)

The federal district court deferred proceedings in the removed case pending the outcome of a suit broughtby the Colorado Attorney General (People ex rel. Salazar v. Davidson, No. 03SA133) challenging theauthority of the General Assembly to enact a congressional redistricting plan after an election had beenheld under the court-drawn plan.

People ex rel. Salazar v. Davidson, No. 03SA133 and Davidson v. Salazar, No. 03SA147, 79 P.3d 1221(Colo. Dec. 1. 2003) (en banc), cert. denied, Colorado General Assembly v, Salazar, No. 03-1082, 541U.S. 1093 (June 7, 2004)

The Colorado Attorney General brought an original proceeding in the Colorado Supreme Court tochallenge the constitutionality of Senate Bill 03-352, a congressional redistricting law enacted by theGeneral Assembly to replace the court-ordered congressional districts used in the 2002 general election.The Court held the new law unconstitutional because the Colorado Constitution, Article V § 44, requiresthe General Assembly to redistrict after each census and before the ensuing general election, and does notallow redistricting at any other time. Because the General Assembly failed to redistrict during thisconstitutional window, it relinquished its authority to redistrict until after the 2010 census.

Keller v. Davidson, No. 03-Z-1482 (CBS), 299 F. Supp. 2d 1171 (D. Colo. Jan. 23, 2004)

After the Colorado Supreme Court ruled in Salazar that the Colorado General Assembly had lost itsauthority to enact a redistricting plan after the 2002 general election, the three-judge federal district courtconcluded that the defendants Secretary of State and General Assembly had fully litigated in state courttheir claim that Colorado's prohibition on the General Assembly enacting a redistricting plan after the2002 general election violated Article I, & 4 of the U.S. Constitution, which says that "The Times; Placesand Manner of holding Elections for Senators and Representatives, shall be prescribed in each State bythe Legislature thereof....." and that "issue preclusion" (the decision on an issue that was fully litigatedin a previous case between the same parties is binding on those parties in a later case) would preventthem from asserting those same claims in federal court after the decision of the state court became final.It deferred further action on the various claims and counterclaims until the Colorado Supreme Court'sdecision became final following review by the U.S. Supreme Court.

Colorado General Assembly v. Salazar, No. 03-1082, 541 U.S. 1093 (June 7, 2004)

On June 7, 2004, the U.S. Supreme Court declined to grant certiorari in Salazar. Chief Justice Rehnquistand Justices Scalia and Thomas dissented from the denial of certiorari on the ground that Article V, & 44of the Colorado Constitution might be in conflict with Article I � 4 , o£the U.S. Constitution.

Keller v. Davidson, No. 03-Z-1482 (CBS), 2004 WL 2359556 (D. Colo. Oct. 15, 2004)

After the U.S. Supreme Court denied certiorari in Salazar, the three-judge federal court dismissed theKeller suit.

Lance v. Davidson, 379 F. Supp.2d 11'17 (D. Colo. July 27, 2005), vacated and remanded Lance v.Dennis, No. OS-SSS, 546 U.S. 459 (U.S. Feb. 21, 2006)

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Denver, CO 80203-1782303/866-2045303/866-4157 FaxJe�_Barr _ state.co.us

Connecticut

No cases reported to this service.

Sta t e Contacts

D'Ann MazzoccaExecutive DirectorOffice of Legislative ManagementLegislative Office BuildingHartford, CT 06106860/240-0100860/240-8881 Faxdann.mazzoccaCcr�ctta.ct.�ov

Kristin SullivanAssociate AnalystOffice oFLegislative ManagementLegislative Office BuildingHartford, CT 06106860/240-8400860/240-8881 Faxkristin.sullivan cga.ct.gov

Delawa re


State Contact

Richard DillardAttorneyState SenateLegislative HallDover, DE 19903302/744-4060302/739-5049 Faxrichard [email protected]

Dis trict of ColumbiaNo cases reported to this service.

1313 Sherman Street, Room 521Denver, CO 80203303/866-4904barbara.kirkmeyerCcr�,state.co.us

Dan DuffyPrincipal AnalystOffice of Legislative ResearchRoom 5300, Legislative Office BuildingHartford, CT 06106860/240-8400860/240-8881 [email protected]

Jim SillsChief Information OfficerDepartment of Technology & Information801 Silver Lake BoulevardDover, DE 19904302/739-9628302/739-1442 [email protected]

Page 11 of 65

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On appeal of the district court's denial of preclearance of the Senate plan, the Supreme Court vacated thejudgment and remanded the case to the district court for further proceedings consistent with the opinionexpressed by Justice O'Connor, on behalf of herself and Justices Rehnquist, Scalia, Kennedy, andThomas. Justice O'Connor said the district court had erred in focusing too narrowly on a decline in blackvoting age population in three districts. Rather, the district court should have evaluated the statewide planas a whole. It should have looked at the increases in black voting age population in other districts andtried to determine whether the increases were sufficient to offset the declines. Further, the district courtshould have looked beyond the plan's effect on the ability of minority voters to elect a candidate of theirchoice and evaluated its effect on their ability to participate in the political process, such as by formingcoalitions with other groups to elect a candidate or by having sufficient voting strength to influence theelection of a candidate. The State had a legitimate choice to make in deciding whether it was better toadopt a plan with a certain number of "safe" majority-minority districts or a plan with fewer safe districtsbut more where the minority had an opportunity to elect a representative of their choice. The district courtalso should have considered the impact of the new plan on the incumbents elected from the benchmarkmajority-minority districts, whether it would adversely affect their legislative leadership, influence, andpower. Finally, the district court should have considered the support of the plan by incumbents electedfrom the benchmark majority-minority districts as evidence of a lack of retrogressive effect. JusticeO'Connor noted that, in comparing the new plan to the benchmark plan, it was relevant to examine thebenchmark plan both using the new 2000 census figures and using the old 1990 census figures, since theold figures were in effect at the time the benchmark plan was enacted.

Larios v. Cox, No. 1:03-CV-693-CAP, 300 F. Supp.2d 1320 (N.D. Ga. Feb. 10, 2004), aff'd 542 U.S. 947(June 30, 2004) (No. 03-1413) (mem.)

Plaintiffs challenged the 2001 congressional and House plans and the 2001 and 2002 Senate plansenacted by the Georgia General Assembly on various grounds. A three-judge federal district court upheldthe congressional plan but struck down the legislative plans as a violation of the Equal Protection Clauseof the Fourteenth Amendment to the U.S. Constitution. The order regarding the 2001 Senate plan wasstayed pending preclearance of the plan. The overall range of both the 2001 House plan and the 2002Senate plan was 9.98 percent, but the court found that the General Assembly had systematicallyunderpopulated districts in rural south Georgia and inner-city Atlanta and overpopulated districts in thesuburban areas north, east, and west of Atlanta in order to favor Democratic candidates and disfavorRepublican candidates. The plans also systematically paired Republican incumbents whi le reducing thenumber of Democratic incumbents who were paired. The plans tended to ignore the traditional districtingprinciples used in Georgia in previous decades, such as keeping districts compact, not allowing the use ofpoint contiguity, keeping counties whole, and preserving the cores of prior districts.

The court set a deadline of March 1, 2004, for the General Assembly to submit new plans to the court.

Larios v. Cox, 305 P. Supp.2d 1335 (Feb. 20, 2004)

The State's request for a stay of the judgment pending appeal to the U.S. Supreme Court was denied.

Larios v. Cox, 306 P. Supp.2d 1212 (Mar. 1, 2004)

When the General Assembly failed to enact new plans by the March 1, 2004, deadline, the three-judgecourt appointed a Special Master to draw them.

Larios v. Cox, 306 F. Supp.2d 1214 (Mar. 2, 2004)

The court directed the Special Master to comply with the U.S. Constitution and §§ 2 and 5 of the Voting

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404/656-5000404/651-9292 Faxsbrumbv cr leg is ga.eov

Hawaii


Idaho

Page 15 of 65

Smith v. Idaho Commission on Redistr i cting, 2001 Op. No_95, 1 36 Idaho 542, 3 8 P.3d 121 (Idaho Nov.29, 200 1 )

Following adoption of a legislative redistricting plan by the Idaho Commission on Redistricting,petitioners invoked the original jurisdiction of the Idaho Supreme Court seeking to enjoin implementationof the plan on the ground that it violated the Idaho Code and common law because it impermissiblydivided counties to create districts, separated communities with common interests into separate districts,created districts with too large a population disparity, and was enacted without following appropriateprocedures. The Court found that the plan violated the Equal Protection Clause of the FourteenthAmendment to the U.S. Constitution, since its overall range was 10.69 percent and the State had offeredno evidence that the population disparity resulted from the advancement of a rational state policy . TheCourt remanded the plan to the Commission for further consideration.

Bingham County v. Comm'n for Reapportionment, 2002.. Opinion No. 30, 137 Idaho 870, 55 P .3d 8 63(Idaho Mar. 1 , 2002)

On remand, the Commission adopted a new plan, L91, on January 8, 2002 . The plan had an overall rangeof 11.79 percent and detailed Findings and Conclusions. The Court found that the rational state policiesused by the commission-prese rving whole counties and preserv ing traditional neighborhoods andcommunities of interest-were not applied consistently statewide. It also found that the plan violated theIdaho Constitution by dividing counties more than was necessary to meet equal-population requirements.Following the statutory policy o£preserving traditional neighborhoods and communities did not justifyviolating the const itutional prohibition against splitting counties. The Court directed the Commission toreconvene and adopt a new legislative plan.

Bonneville County v. Ysursa, 2005 Opinion No. 138, 1 42 Idaho 464 , 129 P.3d 1 2 1 3 (Idaho Dec . 28 ,2005)

In March 2002, the Commission adopted plan L 97. The plan had a "maximum deviation" (overall range)of 9.71 percent. Various counties, voters, and state representatives challenged the plan as a violation ofboth the federal one person, one vote requirement and state constitutional and statutory requirements forthe district-drawing process. The Supreme Court appointed a special master to develop a factual record.The special master submitted his report in September 2004. In December 2005, the Court rejected al lchallenges. It found that the underpopulation of districts in "north" Idaho did not discriminate againstvoters in not-"north" Idaho, since the population deviations were within tolerable limits and there was noevidence of an intent to discriminate against not-"north" Idaho. It found that the Commission had notabused its discretion in deciding which counties to split and in what ways in order to meet equal-population requirements.

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Petitioners ' motion for leave to fi le an or iginal writ of mandamus in the Illinois Supreme Court wasdenied .

Legislative Redistricting Comm 'n v. White, No. 92454 (Ill. Oct 23, 2001)

Plaintiffs' motion for leave to file a complaint for declaratory relief was denied.

Winters v. Board ofElections, No. Ol C 50229, and Barnow v, Ryan, No. 0 1 C 6566 (N.D . I ll. Nov. 20,2001), aff'd 535 U.S. 967 (Apr. 1, 2002) (No. 01- 11 14) (mem .)

Plaintiffs challenged the tie-breaker provision for appointing the ninth member of the LegislativeRedistricting Commission under the Illinois Constitution. The court upheld the tie-breaker provision asbeing a reasonable attempt to encourage the members of the commission to compromise and agree on aplan, since failure to agree would mean a tie-breaker would be appointed to the commission by a randomdrawing and neither party could be sure its member would be chosen. The court noted that the provisionhad not actually worked as intended: each decade the members of the commission had chosen todeadlock and take a chance on the tie-breaker, rather than compromise to agree on a plan. Nevertheless,the court found the framers of the 1970 constitutional amendment that added the tie-breaker provis ionhad a rational basis for doing so.

Cole-Randazzo v. Ryan, No. 22443 (IIl . Nov. 2 8 , 2001)

Plaintiffs alleged that the redistricting plan adopted by the Illinois Legislative Redistricting Commissionwas not as compact as it might have been. The court rejected the challenge, saying that the plaintiffs hadfailed to carry their burden of showing that the plan adopted by the commission was against the manifestweight of the evidence .

Beaubien v. Ryan, No_92701 (Ill . Dec. 27, 200 1 )

Plaintiffs alleged that the redistricting plan adopted by the Illinois Legislative Redistricting Commissionwas not as compact as it might have been. The court rejected the challenge, saying that the plaintiffs hadfailed to carry their burden of showing that the plan adopted by the commission was not "reasonablycompact."

Campuzano v. Board ofElect ions, No. Ol C 50376, 200 F. Supp .2d (N.D . I ll . May 3, 2002)

The complaint alleged that the legislative redistricting plan drawn by the I l linois Legislative Commissionon Redistricting violated §2 of the Voting Rights Act by failing to draw a sufficient number of Senate andHouse districts in which the candidate elected would be the choice of either African-American or Latinovoters. During the trial, at the close of plaintiffs' case, the court granted a motion by the League of UnitedLatin American Citizens ("LULAC") for a directed verdict against the claim with respect to Latinovoters. With respect to African-American voters, plaintiffs argued that, in order to be an "effective"majority -minority district, the district must have at least a 60 percent minority voting-age population("VAP") or 65 percent minority total population, according to the "rule of thumb" articulated in Ketchumv. Byrne, 740 F.2d 1398, 1415-16 (7th Cir. 1984). The court observed that evaluating the districts basedon total population was not appropriate when voting-age population statistics were available, and that useof the "rule of thumb" of 60 percent VAP was not appropriate when actual voting results from raceswithin the districts were available. The expert witnesses for both plaintiffs and the intervenor-defendantsdisavowed the use of the "rule of thumb" and produced statistical analyses of related elections to showthat the districts were not (or were) "effective" majority-minority districts. With credible statisticalevidence to support the plan drawn by the commission, the court held that plaintiffs had failed to carry

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Legislative Service BureauState Capitol Third FloorDes Moines, IA 50319515/281-3994515/281-8027 Faxed_cogk a e isstate.ia.us

Kansas

Legislative Service BureauState CapitolDes Moines, IA 50319515/242-5925515/281-8027 Faxgeyrudicil leeis. state.ia.us

Page 19 of 65

In re Substitute for House Bill 2625, No. 88.735 (Kan. Apr. 26, 2002)

The Kansas Supreme Court, in a constitutionally mandated review, found the 2002 state Houseredistricting plan (2002 Substitute HB 2625) valid under both the United States and Kansas constitutions.

In re Substitute for Senate Bill 256, No. 88.821 (Kan. May 9, 2002)

The Kansas Supreme Court, in a constitutionally mandated review, found the 2002 state Senateredistricting plan (2002 Substitute SB 256) valid under both the United States and Kansas constitutions.

Graham v. Thornburgh, No. 02-4087-JAR (D. Kan. July 3, 2002)

The Kansas Attorney General filed a complaint in federal district court, styled as State ex rel. Stovall v.Thornburgh, alleging that the newly enacted Kansas congressional districts were unconstitutional. Thecomplaint stated, among other things, that the legislatively enacted redistricting plan failed to take intoconsideration communities of interest as exemplified by placing Fort Riley and adjacent Junction City,Kansas in different congressional districts. The Attorney General proposed an alternative plan that wouldmaintain two districts as enacted by the Legislature, and would alter two other districts to remedy thecited community division. It would reduce the overall range of the plan from 33 persons to 29 persons. Afederal three-judge panel upheld the plan I3. Sub for SB 152). The court found that the Legislature'sjudgments regarding communities of interest and other redistricting concerns were sufficient to justify theoverall range of 33 persons (0.0049%). The court found that the Attorney General did not have standingto bring the case, so the case proceded with one of the intervenors substituted as p l aintiff.

Stat e Contacts

Jason LongAssistant RevisorRoom 0 10-East, State CapitolTopeka, KS 6661 2- 15927 8 5/296-23 2 17 85/296-6668 Fax'a�sonl(& .state.ks. us

Alan ConroyDirectorLegislative Research DepartmentRoom 010-West, State CapitolTopeka, KS 666 1 2-1 5 04

Sean OstrowRev isor Fe llowRoom 0 10 -East, S tate Capito lTopeka, KS 6661 2- 1 5927 85/296 -232 17 8 5/296 -6668 [email protected]

Mary GalliganAssistant Director of InformationManagementLegislative Research DepartmentRoom 0 10-West, State CapitolTopeka, KS 66612-1504

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Attorney General's Section 5 review authority . The suit was settled in district court after the Stateaccepted adjustments proposed by the Attorney General to 12 majority-minority districts and onemajority district .State ContactsGlenn KoeppSecretary of the SenateP.O. Box 94183Baton Rouge, LA 70804225/342-5997225/342-2368 Faxkoeppgglegis.state.la.us

Maine

Alfred W. SpeerClerk of the HouseP.O. Box 44281Baton Rouge, LA 70804-4281225/342-7259225/342-5045 FaxsDeera(�a leeis.state.la.us

In re 2003 Apportionment of the State Senate and U. S. Congressional Districts, 2003 ME 86, 827 A.2d844 (July 2, 2003), amended 2004 ME 55 (Apr . 22 , 2004)

The Maine Consti tuti on , art . IV, pt. 3, § 1-A, requires that redistricting plans for the Senate and House ofRepresentatives be developed by a legislative appo rtionment commission and presented to the Legislaturefor its approval . The Legislature has 30 days after the plan is submi tted to it to enact the plan or one of itsown by a 2/3 vote. Me. Const. art . IV, pt. 1, § 3. If it fails to do so, a plan is drawn by the SupremeJudicial Court . By statute, the Apportionment Commission has also been given the responsibility to drawa congressional plan under the same terms. 21-A M.R S. &_1206.

The 2003 Apportionment Commission submitted a plan for new congressional districts that failed to passthe Legislature, so the congressional plan was drawn by the Supreme Judicial Court. The courtconsidered the plan submitted by the Commission as well as plans submitted by various other parties. Itpublished a proposed plan of its own and held a hearing on it before adopting an amended congressionalplan.

The Commission failed to agree on a plan for the Senate, so the Supreme Judicial Court adopted a senateplan using the same procedure as for the congressional plan.

The 2004 amendment corrected an error in the census maps used by the Legislature and the Court toreflect a previous transfer of an unpopulated census block from the Town of Falmouth, Senate District11, to the City of Portland, Senate District 9.

In re 2003 Legislative Apportionment of the House ofRepresentatives, 2003 ME 81 (July 2, 2003)

The Maine Constitution, art. IV, pt. 3, § 1-A, requires that redistricting plans for the Senate and House ofRepresentatives be developed by a legislative apportionment commission and presented to the Legislaturefor its approval. The Legislature has 30 days after the plan is submitted to it to enact the plan or one of itsown by a 2/3 vote. Me. Const. art. IV, pt. 1, § 3. If it fails to do so, a plan is drawn by the SupremeJudicial Court. By statute, the Apportionment Commission has also been given the responsibility to drawa congressional plan under the same terms. 21-A M.R.S. �1206.

The House of Representatives plan submitted by the Commission was passed by the Senate and theHouse by the required 2/3 vote and signed by the Governor, becoming P.L. 2003 ch. 44. Various partieschallenged certain districts for failing to satisfy the compactness and contiguity requirements mandated

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DeHaas - Misc. No . 31 - Challenge to the inclusion of precincts from Anne Arundel County in a districtthat was predominantly Prince George's County on the ground that it failed to give due regard to politicalsubd ivision and natural boundaries .

Smallwood - Misc. No, 32 - Challenged the inclusion of Maryland City in a district otherwise dominatedby Howard County as violative of the requirement that the plan give due regard to political subdivisionsand also of equal protection.

Cole - Misc , No. 33 - Raised political subdiv i sion and natural boundaries, compactness and adjoiningterritory claims as well as one-person, one-vote, focusing on the Eastern Shore but including the plan as awhole .

Getty - Misc. No. 34 - General claims of lack of due regard for subdivision boundaries especially in the27th district and in Dundalk.

The Special Master issued his report on May 21, 2002.

In the Matter ofLegislative Redistricting ofthe State, Misc. Nos. 19 20, 222324 25 26 27 28 29 3031 3233, 34, September Term 2001 (Md. App. Aug. 26, 2002)

The report of the Special Master had recommended that the petition in Misc. No. 24 be granted and thatDistricts 37 and 38 be redrawn in conformance with the petition, but that all other petitions be denied.The Maryland Court of Appeals found "significant portions" of the legislative plan to be in violation ofthe Maryland Constitution, for reasons to be set forth in a later opinion, and ordered the parties to-submitby 4:00 p.m. on June 13, 2002, the names of proposed technical consultants to help the court in drawing aconstitutional plan. In its order of June 17, 2002, the court appointed Nathaniel A. Persily and Karl S. Aroas its technical consultants. By its order of June 21 2002, amended June 25, 2002, the court adopted itsnew plan.

On August 26, 2002, the court issued its opinion explaining the June 25 order. The court found that theState's plan, by drawing district boundaries based on the rational goals of avoiding the loss ofexperienced legislators and reducing incumbent contests, violated the state constitutional requirement thatit be drawn giving due regard to natural boundaries and the boundaries of political subdivisions. Thecourt's plan reduced the number of districts that crossed county or city boundaries, while keeping theoverall range of population deviations below ten percent.

Mitchell v. Glendening, No. WMN 02 CV 602 (D. Md. July 8, 2002)

The court dismissed a Voting Rights Act claim against the legislative plan in federal district court basedon the elimination of the 44th District in Baltimore City, on the ground that the redrawing of theboundaries of District 44 by the Maryland Court of Appeals rendered the case moot.

Duckworth v. Board ofElections, No. AMD 02-2064 (D. Md. Aug. 5, 2002)

The complaint by the Clerk of the Anne Arundel County Circuit Court chal lenged the new congressionalredistricting plan enacted as Laws 2002, ch. 340. The complaint alluded to an equal population claim butdid not state it, accused the plan of failing to comply with standards set forth by the Advisory Committeeformed to draw the plan adopted in the early 1990's, attempted to state a cause of action based on the factthat Anne Arundel County was located in more than one district, and claimed partisan gerrymandering. Itrequested the court to postpone the 2002 elections until the plan was remedied. A single judge found thecomplaint to be "insufficient and ... beyond rehabilitation," and that it failed to assert any substantial

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minority district and avoid a challenge to the plan under the Voting Rights Act.

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Camacho v. Finneran, No. 2002-10428-DPW (complaint filed Mar. 12, 2002) (Voting Rights Actchallenge to House plan)

McClure v. Secretary of the Commonwealth, No. SJC-08715, 436 Mass. 614, 766 N.E.2d 847 (Apr. 29,2002), cert . den ied sub nom. McClure v. Galvin, No. 02-532 (U. S . Nov. 18, 2002)

Plaintiffs challenged the 2001 plan for the House of Representatives because it divided the Town ofChelmsford into four representative districts when it could have been divided into fewer districts and stillmet constitutional requirements. They proposed a plan that divided the town into only two districts, butwith slightly larger population deviations than the enacted plan. They also claimed the plan constitutedunconstitutional partisan gerrymandering in violation of the Fourteenth Amendment to the U.S.Constitution. The Supreme Judicial Court rejected the challenges. It sai d "the Legislature reasonablycould have concluded that it was preferable to seek a closer approximation of population equality in thedi stricts in the Chelmsford area... at the expense of dividing the town among four districts." It said theplaintiffs had offered no evidence to show that the Legislature's plan was "a purposeful, concerted effortto disfavor a political party through the redistricting process" and that they had "not demonstrated that thedivision of Chelmsford will result in a diminished Republican influence in either the relevant districts orthe House of Representatives as a whole."

Black Political Task Force v. Galvin, No. 02-111901 90 (D . Mass. Feb. 24 , 2004)

A three-judge district court held that the 2001 legislative redistricting plan with respect to 17 Housedistricts in the Boston area vio lated § 2 of the Voting Rights Act of 1965 by discriminating against blackvoters. It found that African American voters were sufficiently numerous and geographical ly compact inthe Boston area to comprise a majority of the voting age population in at least one more House districtthan provided for in the enacted plan, that African American voters were politically cohesive, and thatwhites voted sufficiently as a bloc to enable them to usually defeat the black-preferred candidates. Inconsidering the totality of the circumstances it noted, among other things, the legislature's actions toprotect white incumbents at the expense of minority voting opportunities. Assuming that a whiteincumbent was retiring, a committee had drawn the i ith District with a population over two-thirdsminority and touted the I lth District as one that "increased the chances of there being an additionalminority House member from the City of Boston." During floor debate, the incumbent let it be knownthat he planned to run for reelection and offered an amendment to give the 1 lt' District a white majority.The amendment was adopted (The incumbent subsequently was appointed the legislature's sergeant-at-arms and decided not to seek reelection.)

The court enjoined the Commonwealth from using the 17 House districts for the 2004 election and gavethe Massachusetts legislature six weeks to draw an acceptable plan.

State Contacts

John GaviglioData Center MagagerMassachusetts State Data CenterUniversity of Massachusetts Donahue Institute100 Venture Way, Suite 9Hadley, MA 01035-9462413/545-0176

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The complaint alleged that legislative districts ordered by a state court in 1991, and congressionaldistricts drawn by the state court in 1992, are out of population balance based on 1999 estimates by theState Demographer and 2000 census counts released December 28, 2000, and that the Legislature hadfailed and would fail to redraw them. It demanded an injunction against use of the old plans for the 2002election and that the court draw new plans if the Legislature failed.

Cotlow v . Kiffineyer , No. C8-91-985 (Minn. Spec. Redis . Panel, motion served Jan. 12, 2001)

The motion asserted that the legislative districts approved by the court, and congressional districts drawnby the court, in 1992 were out of population balance. It moved the court to modify its previous orders anddeclare that the old plans may no longer be used and to notify the Legislature that the court would drawnew plans unless the Legislature adopted constitutional plans in a timely manner.

Cotlow v. Growe, No. C8 -9 1-9 85 and Zachman v. Kiffineyer , No. CO-O 1 -160 (Minn. Mar. 2,2001)

The Minnesota Supreme Court consolidated the two cases and found that the role of the three-judgespecial redistricting panel in Coclow v . Growe was confined to cases based on the 1990 Census, a rolethat has ended. The Court will appoint a new special redistricting panel "to hear and decide the Zachmancase and any other redistricting challenges that may be fi led based on the 2000 Census." In deference tothe legislative process, the Court stayed appointment of the new panel until " it is determined that panelaction must commence in order that the judicial branch can fulfill its proper role in assuring that validredistricting plans are in place in time for the 2002 state legislative and congressional elections ...."

Zachman v, Kiffinever, No. CO-0 1-160 (Minn. Spec. Redis . Panel Mar. 19, 2002) (le igslative)(coneressional)

The Senate and House each pas sed different redistricting principles (S.F. No. 1326) and congressionaland legislative redistricting plans (S.F. No . 2377) and sent them to conference committee during the 2001regular session. The session adjourned May 21, 2001, without completing action on either principles .orplans, but with legislators expressing their intent to work on both during the interim between sessions.Following adjournment, plainti ffs moved the Court for an order appointing a three-judge panel to drawplans and that the plans be adopted before January 1, 2002. The Legislature was scheduled to convene itsnext regular session January 29, 2002. On July 12, 2001, the Chief Justice of the Minnesota SupremeCourt appointed a five-jude special redistrictin� panel and ordered them to release a redistricting plan"only in the event a legislative redistricting plan i s not enacted in a timely manner." On October 29, 2001,the panel issued a schedulinQ order sett ing November 13 as the deadline for parties to submit theirproposed redistricting criteria, December 28 as the deadline for the parties to submit proposed plans , andMarch 19, 2002 (the statuto ry deadline for the Legislature to complete action on redistricting plans) as thedate when the panel would issue plans of its own, if necessary. The paneP s order stating redistrictingprinciples and requirements far�lan submissions was issued December 11, 2001. Following the January16, 2002, oral argument on the plans submitted by the parties, the cou rt issued an order settin e a schedulefor public heariM on how citizens preferred their communities to be viewed during redistricting. OnMarch 19, 2002, the panel issued its orders adopting a leeislative redistrictin lan and a congressionalredistricflne plan. Interactive ma�s and additional plan reports may be viewed on the Legislature'sredistricting Web site. In its order of October 16 2002, the panel awarded attorney's fees and costs to allfour groups of plaintiffs, subject to a limit of $100,000 each for attorney's fees and $4,500 each for costsand disbursements. See table for the amounts requested by and awarded to each .

McGuire v. Windschitl, No. CO-02-1352 (Minn. Aug. 28, 2002)

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The complaint alleged deadlock in the Legislature and asked the state court to draw a congressional plan.On December 21, 2001, the court adopted a plan (color version) as submitted by the plaintiffs. OnDecember 26, 2001, the State's attorney general submitted the plan to the Department of Justice forpreclearance, requesting expedited consideration and preclearance by January 31, 2002. On February 14,2002, the Department of Justice, by a letter to the State's attorue,L'egneral, requested more informationfrom the State about the operation of the chancery courts and the jurisdiction of a single judge to createand implement a statewide redistricting plan. On the same date, the Department of Justice also requestedthe Mississippi Supreme Court to expedite its review of the plan adopted by the chancery court, so that"issues inherent to state-level governance [could] first be resolved by state authorities."

In re Mauldin, No. 2001-M-01891 (Dec. 13, 2001), rev'd sub nom. Mauldin v. Branch, No. 2002-CA-00146, 866 So.2d 429 (Miss. Dec. 18, 2003)

The Mississippi Supreme Court held that the Chancery Court had jurisdiction to issue a congressionalredistricting plan.

Smith v. Clark, No. 3:01-CV-855WS, 189 P. Supp.2d 503 (S.D. Miss. Jan. 15, 2002)

The three-judge federal court concluded that, because of the need to have the plan drawn by the statecourt precleared by the Justice Department before it could become effective, it "appears to be uncertainthat the State authorities will have a redistricting plan in place by March l," and therefore decided tobegin drawing their own congressional redistricting plan.

Smith v. Clark, N_Q.3.0 1-CV-855WS, 189 F. Supp: 2d 512 (S.D. Miss. Feb. 4, 200?)

On February 4, 2002, the federal court adopted a plan, which it proposed to implement "absent the timelypreclearance of the redistricting plan adopted by the State Chancery Court, which is now pending forpreclearance before the United States Attorney General."

Smith v. Clark, No. 3:01-CV-855WS , 189 F. Supp. 2d 548 (S.D. Miss. Feb. 26, 2002), affd sub nom.Branch v. Smith, 538 U.S. 254 (Mar. 31, 2003)

On February 26, 2002, the federal court enjoined the State from implementing the congressional planadopted in Branch v. Clark on December 21, 2001, even if the plan were precleared, because the statecourt's assertion ofjurisdiction to adopt the plan violated Article I, Section 4, of the U.S. Constitution,which says that "The times, places and manner of holding elections for Senators and Representativesshall be prescribed in each state by the legislature thereo£" The Court distinguished Growe v. Emison andcases from California, New York, Texas, and New Jersey, where state courts had drawn or modifiedcongressional plans, on the ground that in none of those cases had the state court's jurisdiction beenchallenged on the basis of Article Z, Section 4. The federal district court conceded that the MississippiSupreme Court had found that the state chancery court did have jurisdiction in this case, but reached itsown conclusion that the Mississippi Supreme Court's decision was not supported by Mississippi law. TheCourt ordered the State to conduct elections based on the plan adopted by the federal court February 4,2002. The order left open the possibility that the Legislature might enact a congressional plan at somefuture date.

Branch v. Smith, No. 01-1437, 53 U.S. 254 (Mar. 31, 2003)

Justice Scalia, writing for a unanimous Supreme Court, affirmed the judgment of the federal district courtenjoining implementation of the plan drawn by the state court because it had not been precleared under §

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Plaintiffs challenged Senate District 45 as drawn by the Mississippi Legislature in 2002 as a racialgerrymander. As African American resident citizens of former District 45, they alleged that the district'sboundaries had been redrawn with the race-based goal of minimizing the number of minority voters inthe dis tri ct by moving them out of it. A three-judge court found that the dis trict was redrawn with thegoals of meeting equal population requirements, complying with the Voting Rights Act, and sat9sfyingthe requests of incumbent senators, and that race was not "a predominant factor in the drafting of District45 , or any other district. " The court dismissed the complaint.

Sta t e Contact

James F. (Ted) BoothGeneral CounselPEER CommitteeP.O. Box 1204Jackson, MS 39215-1204601/359-122660 1/359-1420 Faxted.booth(&,peer.state.ms.us

Miss ouri

Reynolds v. State, No. (Ct. of Common Pleas Cole Co., complaint filed _)

The complaint alleged that the current congressional districts were malapportioned.

Coons v. State, No. (W.D. Mo., complaint filed


State Contact

William TuckerDirector of ResearchHouse of RepresentativesState Capitol Room B-38Jefferson City, MO 65101573/751-2979573/751-1963 Faxbill.tucker(cr�house.mo.gov

Lori Strong-GoekeAssistant DirectorOffice of AdministrationDivision of Budget and PlanningCapitol Building Room 124Jefferson City, MO 65101573/[email protected]

Ryan BursonState DemographerOffice of AdministrationCapitol BuildingJefferson City, MO 65101573/751-9318573/526-4811 FaxRyan.Bursornoa.state.rno. us

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2000s Red istricting Case Summaries

406/[email protected]

Page 33 of 65

406/444-5367406/444-3036 Faxrweiss mt,gov

NebraskaNo cases reported to this service.State ContactsCynthia JohnsonDirector of ResearchLegislative Research DivisionP.O. Box 94945Lincoln, NE 68509-4945402/471-2221402/479-0967 Faxcjohnson@le .ne. ov

Nancy CyrSenior Legal CounselLegislative Research DivisionRm 1201 State CapitolP.O. Box 94945Lincoln, NE 68509-4945402/471-0077402/[email protected]

Jack Dolu-tnanGIS ManagerP.O. Box 94945Lincoln, NE 68509402/471-0042

[email protected]_

Nevada


State Contacts

Michael StewartSupervising Principal Research AnalystResearch Division, Legislative Counsel Bureau401 S. Carson StreetCarson City, NV 89701-4747775/684-6825775/684-6400 Faxmstewart(c_r.state.nv.us

New Hampshire

Lorne J. MalkiewichDirectorLegislative Counsel Bureau401 S. Carson StreetCarson City, Nevada 89701-4747775/684-6800775/684-6600 Faxmalkiewich@ Icbstate.nv.us

Below v. Gardner , No. 2002-0243, 148 N.H. 1(N.H . June 24, 2002) (Senate p lan)

When it appeared that the legislative process might not produce a legislative redistricting plan, the NewHampshire Supreme Court, by its order of Mav 17 , 2002, enjoined the statutory filing period and set a

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representative distr icts in New Hampshire were unconstitutional and that the Secretary of State should beenjoined from conducting the 2008 elections using the current districts . Petitioners argued that newdistricts should be established for state representative seats because the New Hampshire constitution hadbeen amended by the voters in 2006 to change the manner in which these districts would be established.The court denied their requests and ruled that the express language of the amendment to the stateconstitution required the next redistricting to occur after the next decennial census.

State Contacts

Pam SmarlingCommittee ResearcherHouse of Representatives33 North State StreetConcord, NH 03301603/271-3387603/271-6689 Faxpam . smarlin _ le statenhus

New Jersey

Page v. Bartels, No. 01-1733, 144 F. Supp.2d 346, 2001 WL 505187 (D. N.J. May 4, 2001)

Plaintiffs sought to enjoin implementation of a legislative redistricting plan adopted by the New JerseyApportionment Commission on April 11, 2001. They alleged that the plan violated § 2 of the VotingRights Act and the 14th and 15th Amendments to the U.S. Constitution because it reduced theconcentration of African American voters in three legislative districts with an intent to dilute their votingstrength. Defendants countered that the plan, while reducing the concentration of African Americans toless than a majority of the voting age population in the three districts, also increased the concentration ofAfrican Americans in a fourth district, thus giving them an effective voting majority in all four districts,because both Hispanics and Whites often voted for African American candidates. The three-judge courtfound for the defendants, finding that the plan drafters had not intended to discriminate against AfricanAmericans and that the plan did not have the effect of diluting their voting strength. Rather, it likelywould increase by one the number of African Americans elected to the Legislature from the four districts.

Robertson v. Bartels, 148 F. Supp. 2d 443 (D.N.J. 2001), aff'd 534 U.S. 1110 (Jan. 22, 2002) (No. 0 1-721) (mem.)

A white Republican state senator whose district was redrawn to raise its Black voting age populationfrom 3.9 percent to 35.3 percent alleged that the New Jersey Apportionment Commission had violated theEqual Protection Clause by protecting all minority incumbents but not all white incumbents. A three-judge panel granted summary judgment for defendants on the basis of resjudicata. Although neither allthe plaintiffs nor all the arguments were the same as in Page v. Bartels, the court found that theRobertson plaintiffs were in privity with the Page plaintiffs and their interests had been adequatelyrepresented by the Page plaintiffs.

McNeil v. Legislative Apportionment Commission, No. M-728, September Term 2002, 54,209 (N.J. Mar.6, 2003)

On January 22, 2003, the Superior Court Appellate Division had stuck down the legislative plan because

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congressional districts as "the last , clear expression of state policy on this issue" and adopted the "LeastChange" plan.

,Iepsen v. Vigil-Giron, No. D0101 CV 2001 02177 (Ist Jud. Dist. Santa Fe Co. Jan. 24, 2002)

Following veto by the governor of both the first and the second House plans passed by the Legislature ,the state court considered six plans submi tted by the parties. The court found that the Navajo Nation andthe Jicari lla Apache Nation had established the existence of the Gingles three preconditions and that thetotal ity of the circumstances showed that the current House plan failed to provide equal electoral accessto New Mexico's Native American population. The court adopted the plans of the two nations as the bestoverall remedy to vote dilution in the Northwestern quadrant of the state. For the balance of the state, thecourt adopted the second plan passed by the Legislature and designed to respond to the objections of thegovernor in his first veto message. The court said its decision was based on the same principles used inchoosing a congressional plan: look to the last clear expression of state policy; do not make radical orpartisan changes unless the law requires those changes to be made; shift the population necessary to bringthe state into compliance with the one-person, one-vote requirement; insure the districts are compact andcontiguous to the extent poss ible and keep intact to the extent possible county and municipal boundaries;maintain percentages of effective Hispanic and Native American majority districts as in the existing plan,subject to Voting Rights Act compliance; and try to promote partisan fairness and political competition.The court noted that , as a state court , it was not constrained by the de minimis standard of populationdeviation imposed on federal courts in adopting a state legislative redistricting plan, but rather by the ten-percent standard applicable to plans adopted by a state Legislature.

State Contact

Paula TackettDirectorLegis lative Council Service490 Old Santa Fe Trail, Suite 4 11Santa Fe, NM 87501505/98 6-4600505/9 8 6-4680 Faxpapla taekettanmleZiseov

New York

Jon BollerAttorneyLegislative Council Service490 Old Santa Fe Trail, Suite 411Santa Fe, NM 875015 05/98 6-4600505/986-46 80 Faxj on.boller nmleeis•gov

Rodriguez v. Pataki, No. 02 Civ. 0618 (S.D . N.Y . May 23, 2002)

Plaintiffs challenged the current congressional districts as in violation of equal population requirementsand requested the court to draw new districts if the Legislature failed to do so. A Special Master wasappointed on Apri126, 2002 . He was assisted by three expert s: Professors Bernard Grofman andNathaniel Persily and Mr. Marshall Turner. Following a public hearing and submissions from the parties,on May 13, 2002, the Special Master recommended a plan to the court . On May 23, 2002, the three-judgecourt adopted the Special Master's plan, but said it was still "willing, indeed eager" to let state lawmakersdraw their own plan . The court did not set a deadline for the Legislature to act.

On June 5, 2002 , the Governor approved new congressional distri cts enacted as Chapter 86 . On June 25,2002, the Department of Justice precleazed the newly-enacted congressional plan.

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"minority influence" district. The court found that intentional discrimination had not been proven, andthat influence-dilution claims, as distinct from "ability to elect" claims, are not cognizable under Section2 o£the Voting Rights Act.

§ 2 of the Voting Rights Act - Bronx and Westchester Counties

Plaintiffs alleged that an additional compact Hispanic-majority dis trict could have been created in thenorthwest Bronx and southwest Yonkers if the 2002 Senate plan had not followed three discriminato rypractices : (1) packing minority population into Bronx districts far in excess of the percentages necessaryto enable minority group voters to elect the candidates of the i r choice; (2) malapportioning districts to thedisadvantage of "downstate" residents; (3) racial gerrymandering to create a super-majority white district.The court found that the plaintiffs had proven that Hispanic voters are politically cohesive, that theirpreferred S enate candidates are usually defeated by white bloc voting in the white-majori ty districts in theBronx and Yonkers, and that Hispanic voters could elect the candidates of their choice in the plaintiffs'proposed district. The court found, however, that Hispanic voters in the Bronx already enj oyrepresentation in the Senate that is substantially propo rtional to their share of the population of the Bronx,and that therefore a violation of the Voting Rights Act had not been established considering the "totalityof the circumstance s."

Racial Gerrymandering - the Bronx and Westcheste r

Plaintiffs alleged that Senate District 34 (Bronx, Pelham, New Rochelle, Eastchester, Mount Vern on,Yonkers) was drawn primarily on the basis of race, to create a district with a white super-majority, inviolation of the Equal Protection Clause, as interpreted by the Supreme Court in Shaw v. Reno andsubsequent cases. The court found that the configuration of District 34 could be explained by what thecourt viewed as legitimate considerations, particularly partisan advantage and incumbent protection.

Intervenors' Complaint Against Senate District 31

One group of plaintiff-inte rvenors alleged that Senate District 31 (Washington Heights, Riverdale„theupper west side of Manhattan) denied Hispanic voters an opportunity to elect the candidate of theirchoice , and should be redrawn to increase the Hispanic voting-age majority in the district. The courtfound that the stati stical analysis presented by the plaintiff-intervenors failed to establish that Hispanicvoters would be unable to elect the candidates of their choice in District 31, or that their preferredcandidates would usually be defeated by racial bloc voting by whites.

Intervenors' Complaint Against Congressional District 1 7

Another group of plaintiff-inte rvenors alleged that Congressional District 17 denied minority groupvoters an opportunity to elect representatives of their choice and should be redrawn with a combinedblack and Hispanic majority. The court found that black and Hispanic voters are not mutually cohesive intheir voting patterns in Congressional District 17, and that neither group alone would be able to elect thecandidate of its choice in the plaintiff-intervenors' proposed district .

S tate Contacts

Debra A. Levine Lewis M. HoppeCo-Executive Director Co-Executive DirectorReapportionment Task Force Reapportiomnent Task Force250 Broadway, 21st Floor 250 Broadway, 21st Floor

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boundary of the comrty. Then, groups of counties must be assembled and d ivided into single memberdistricts that respect the outer boundary of the group of counties. The new plan must not cause theopportunities for minorities to regress, us ing the 2001 precleared plan as the benchmark. The districtcourt was ordered to hold an expedited hearing on whether the General Assembly was capable ofredrawing the districts in time for the 2002 election, If not, the district court was authorized to impose atemporary plan of its own for use in the 2002 election, subject to being precleared.

Stephenson v. Bartlett, No. 1 CV 02885 (Superior Court, Johnston Co., May 3 1 , 20 02)

After the General Assembly enacted new House and Senate plans on May 17, Superior Court Judge KnoxV . Jenkins threw them out and drew maps of his own. The court's House plan was a modification of theone adopted by the General Assembly . The court 's Senate plan was a modification of one submi tted tothe court by the plaintiffs .

Stephenson v. Bartlett, No. 94PA02 (N.C. June 4, 2002)

The North Carolina Supreme Court denied the State's request to stay enforcement of the Superior Court 'sorder and a motion to expedite hearing the State's appeal. A hearing on the appeal was not likely untilJanuary, meaning that the 2002 election was likely to be run using the plans adopted by the SuperiorCourt May 31 , 2002.

Board of Elections v, United States, No. 02-1174 (D .D .C. June 27 , 2002)

The complaint sought preclearance of both the North Carolina Supreme Court decision of April 30, 2002,in the Stephenson case and the interim plans adopted by the Superior Court May 31, 2002. In thecomplaint, the State took no position on whether the opinion in Stephenson or the interim plans should beprecleared, but said that the federal court was the best forum to resolve those issues. On June 27, 2002, athree-judge court denied the State's motion for a temporary restraining order and preliminary injunction,saying there was no showing of irreparable harm, since the state court plan would not be implementedwithout Section 5 preclearance and the federal court for the Eastern District of North Carolina couldfurther compress the election schedule to allow a second primary (presumably buying some time byhaving less than four weeks between the two primaries). The court declined to decide whether it hadjurisdiction to issue the orders, saying that the federal court in two pending cases in the Eastern District ofNorth Carolina, Sample v. Jenkins, No. 20-CV-383 (E.D.N.C. filed June 13, 2002) and Foreman v.Bartlett, No. 01 -CV-166 (E.D.N.C. filed Nov. 13, 2001) would have authority to grant relief. The courtnoted that the Department of Justice would have a decision on the Section 5 submittals of the Stephensoncase and the Jenkins plan by the week of July 8, 2002.

Sample v Jenkins, No. 20 -CV-3 8 3 ,(E.D . N.C. July 2, 2002)

A three-judge court unanimously denied the State's motion for a preliminary injunction to conduct the2002 state legislative election under the precleared legislatively-enacted 2001 plan, rather than an interimstate court ordered plan that was still pending Section 5 preclearance at the Department of Justice.

On July 12, 2002 , the Department of Justice precleared both the new interpretation of the North Carolinaconstitutional requirement to preserve whole counties announced in the Stephenson decision and the newlegislative districts drawn by Judge Jenkins .

Stephenson v. Bartlett (Stephenso n II), No. 94PA02 -2, 357 N.C. 301, 582 S .E.2d 247 (Ju ly 16, 2003)

The appeal of the May 31 , 2002, decision of the Superior Court holding unconstitutional both the Senate

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Assembly said were the requirements of § 2 of the Voting Rights Act, chapter 434 divided Pender Countybetween House District 16 and House District 18 , with District 18 having an African American votingage population of 39.36 percent. Pender County sued various officials of the State Board of Elections, theGeneral Assembly, and the executive branch, alleging that chapter 434 violated the whole-countyprovision (WCP) of the state constitution, N.C Const. art. IT , §§ 3(3) , 5(3). Defendants responded that thedivision of Pender County was required by § 2 of the Voting Rights Act, which trumped the StateConstitution. The Chief Justice appointed a three-judge panel to consider the c ase . The panel denied amotion to enjoin use of chapter 434 for the 2004 election. The panel found that House District 18 was acrossover district, where African Americans enjoyed reliable suppo rt from some members of the Whitemajority who crossed over racial lines and voted for the minority's preferred candidate, allowing thatcandidate to be elected. Therefore , the panel concluded that dividing Pender County was required by § 2of the Voting Rights Act.

On appeal, the North Carolina Supreme Court reversed. It recognized four distinct types of minoritydistricts: (1) "maj ority-minority" districts, (2) "coalition" districts , (3) "crossover" districts, and (4)"in fl uence" districts. It observed that the court s of appeals in five federal circuits (4th 5th, 7 th l Oth , and11 t ') had held that nothing less than a "majority -minority" dis trict, i.e., a minority population of at least50 percent of the voting age population, was sufficient to make out a violation of § 2, and that no circuithad held that § 2 could be satisfied by the creation of a coalition, crossover, or influence district. TheCourt also noted that citizenship must be considered, so that a majority of the voting age population whoare citizens is required. It found the use of a "bright line rule" to be more practical than one requiring anassessment of past voting behavior and a prediction of future voting trends. It would provide the GeneralAssembly with a safe harbor when drawing districts and foreclose marginal claims by minority groupswith smaller populations. In view of the fact that the General Assembly was not scheduled to reconveneuntil after the close of filings for the 2008 election , the Court stayed its order requiring the GeneralAssembly to redraw the districts until after the 2008 election .

Bartlett v. Strickland, No. 07-6 8 9 (Mar. 9, 2009)

On appeal, a 5-4 majority of the U.S. Supreme Court affirmed the decision of the North CarolinaSupreme Court . In an opinion by Justice Kennedy, joined by Chief Justice Roberts and Justice Alito, theCourt held that § 2 of the Voting Rights Act does not require creation of a district in which a minoritypopulation has a fair opportunity to elect a representative of its cho ice if the minority would constituteless than a majority of the voting age population in the district. On the other hand, the Court said that"Our holding does not apply to cases in which there is inten ti onal discrimination against a racialminority." Slin op. at 15. The Court also endorsed the voluntary use of crossover districts to comply with§ 2 and to maximize minority voting strength. SlipOp, at 19-2 1. Justices Thomas and Scalia concurred inthe judgment. Justices Souter, Stevens, Ginsburg, and Breyer dissented.

State Contacts

Gerry CohenDirector of Bill DraftingNorth Carolina General Assembly401 Legislative Office BuildingRaleigh, NC 27603-5925919/733-6660919/715-5459 Faxerr c ncle .net

William GilkesonStaff AttorneyNorth Caro lina Genera l Assembly300 North S ali sbury Street, Suite 545Rale igh , NC 27603-29 5 79 1 9/733-2578919/7 33 - 3 11 3 [email protected]

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had failed to prove their Fourteenth Amendment claim that race was the predominant factor in drawingthe district lines and their Fifteenth Amendment claim that the Apportionment Board intentionallydiscriminated against citizens of Ohio based on their race.

S tate Contact

Lynda J. JacobsenStaff AttorneyLegislative Service Commission77 South High Street, 8th FloorColumbus, OH 43215-6136614/466-0632614/644-1721 FaxRqcobsen@,lsc.state.Qh.us

Oklahoma

Alexander v. Taylor, No. 97 8 36, 5 1 P.3d 1 204 (Okla. June 25, 2002)

When the Legislature failed to adopt a new congressional plan reflecting Oklahoma's 2000 populationand a reduction of its congressional seats from six to five, the Honorable Vicki Robertson, Judge of theDistrict Court of Oklahoma County, after a five-day non-jury trial, on May 31, 2002, adopted theGovernor's proposed plan. On appeal, the Oklahoma Supreme Court affirmed, declining to follow Smithv. Clark, 189 F. Supp.2d 503 (S.D. Miss. Feb. 26, 2002), prob. juris. noted sub nom. Branch v. Smith, No.01-1437 (U.S. June 10, 2002), and holding that state courts do have jurisdiction to draw congressionaldistricts.

State Contacts

Lexa ShaferRedistricting StaffOklahoma Senate309 State CapitolOklahoma City, OK 73105-4885405/521-5529405/521-5599 [email protected]

Oregon

Perrin v. State, No. (Dist. Ct. Multnomah Co., complaint filed Apr. 18, 2001)


Perrin v. Kitzhaber, No. 0107-07021, (Dist. Ct. Multnomah Co., Oct. 19, 2001)

After the Oregon Legislature adjourned sine die without enacting a new congressional plan, plaintiff

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including the equal protection guarantee and the free and equal elections clause. It alleged that, althoughsupport for Republicans and Democrats was approxi mately equal statewide, 13 or 14 of the 19 districtswere likely to be won by a Republican candidate . The court held that the plaintiffs had failed to showthey were effectively shut out of the political process , because they had not shown that a winningRepublican candidate would entirely ignore the interests of citizens who voted for a Democrat andbecause at least five seats were " safe seats" for Democratic candidates.

Vieth v. Commonwealth, No. 1:CV -0 1-2439, 188 F. Supp.2d 532 (M.D. Pa. Feb. 22, 2002), appealdismissedfor want ofjurisdiction sub nom. Pennsylvania Republican Caucus v. Vieth, No. 01-1713 (US.Oct. 7. 2002); appeal dismissed as moot, No. 0 1-1873 (Act 1 had been repealed for any election after2002), and sub nom. Jubelirer v. Vieth, No. 02-135 (U.S. Oct. 7, 2002)

The complaint alleged , among other things, that the congressional redistricting plan passed by thePennsylvania General Assembly and signed into law on January 7, 2002 (Act 1), was a partisangerrymander that violated the Equal Protection Clause of the Fourteenth Amendment to the U.S.Constitution. The district court held that, although plaintiffs had alleged that they had been shut out of thepolitical process, they had "not alleged facts indicating that they have been shut out of the politicalprocess and, therefore , they cannot establish an actual discriminatory effect on them." 188 F. Supp . 2d at547. The partisan gerrymandering claim was dismissed.

Vieth v. Commonwealth, No. 1:CV-0 1-2439, 195 F. Supp. 2d 672 (M.D. Pa. Apr. 8,2002), appealdismissed as moot sub nom.,lubelirer v. Vieth, No. 01-1817, and Schweiker v. Vieth, No. 01-1823 (Act Ihad been repealed for any election after 2002)

The complaint alleged, among other things, that the congressional redistricting plan passed by thePennsylvania General Assembly and signed into law on January 7, 2002 (Act 1), violated theconstitutional requirement for equal population, since it had an overall range of 19 persons. Plaintiffsshowed that a plan could be drawn with an overall range of one person and that sp lit no precincts.Defendants countered that plaintiffs' "zero deviation" plan had not been presented to the GeneralAssembly at the time the bill was being considered and that to have reduced the deviation below 19persons while keeping the general outline of Act 1 would have required that more precincts be split thanthe six that were split under Act 1. A majority of the three-judge federal district court found that plaintiffshad met their burden of showing that the deviation in Act 1 was avoidable. The court also noted that thedeviation could not be justified as a good faith effort to achieve population equality, since the staff persondrawing the plan had been told to stop working for a lower deviation once he got to 19; that it could notbe justi fi ed as an attempt to avoid spli tting precincts, since plaintiffs showed it was possible to dsaw amap with zero deviation that split no precincts; and that of all the plans presented at trial, Act 1 had theleast compact districts, split the most counties and municipalities, split more precincts than any plan otherthan one submitted by defendants themselves, retained the cores of prior districts only for Republicanincumbents, and paired six incumbents rather than the minimum of four. The court declared Act 1unconstitutional, enjoined its implementation, and gave the General Assembly three weeks to enact andsubmit to the court a new plan. The court deferred action on the plaintiffs' request that it draw its owncongressional plan pending action by the General Assembly .

Vieth v. Pennsylvania, No. L•CV-O1-2439, 241 F. Supp.2d 478 (M.D. Pa. Jan. 24, 2003), aff'd sub nom.Vieth v. Jubelirer, No . 02-1580 (U.S. Apr. 28, 2004)

On April 18, 2002, the General Assembly enacted a new congressional plan, HB 2545, Act 34, whichreduced the overall range of the plan from 19 persons to one person. On April 23, 2002, the court stayedits order of April 8, allowing Act 1 to be used for the 2002 election. It set a hearing for May 8, 2002 , onthe question of whether Act 34 should govern elec ti ons in 2004 and beyond.

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Parella v. Irons, No. 02-4578 (Providence Superior Ct. Oct. 8, 2003), aff'd sub nom. Parella v,Montalbano, No. 2QW-5�$ (R.I. June 9, 2006)

A 1994 amendment to the Rhode Island Constitution reduced the number of senators from 50 to 38 andthe number of representatives from 100 to 75, effective for the members taking office in January 2003.The 2001 General Assembly created a Reapportionment Commission to recommend Senate, House, andcongressional plans to the General Assembly, in accordance with standards of equal population,compactness, contiguity, communities of interest, and fair representation set forth in the law. 2001 R.I.Pub. Law ch. 315 (July 13, 2001). The 2002 General Assembly enacted legislative plans as 2002 R.I.Pub. Law ch. 4(Feb. 20, 2002), coded as R.I. Gen. Laws 1956 2§2-1-2 (Senate districts) and 22-2-2(House districts). Plaintiffs residing in four Senate districts challenged the Senate plan as failing to meetthe constitutional mandate that districts be "as compact in territory as possible." R.I. Const. art . 8, § 1.They argued that their four districts did not follow natural, historic, geographic, or political lines, asrequired by 2001 R.I. Pub. Law ch. 315, § 2. The trial court placed upon plaintiffs the burden of provingbeyond a reasonable doubt that the statute violated the constitution, as would be appropriate in any casechallenging the constitutionality of a statute. The trial court concluded that "[t]he compactness clause isviolated `only when a reapportionment plan creates districts solely for political considerations, withoutreference to other policies, in such a manner that the plan demonstrates a complete abandonment of anyattempt to draw equal, compact and contiguous districts. "' (quoting Holmes v. Farmer, 475 A.2d 976,986 (R.I. 1984)). The trial court held that the plan did not violate the compactness requirement.

On June 9, 2006, the Supreme Court of Rhode Island affirmed the judgment of the trial court.

State Contact

Joseph A. MontalbanoPresident of the Senate318 State HouseProvidence, Rhode Island 02903401/222-6655401/222-2967 Faxsen-monYalbano(rilin. state. ri.us

South Carolina

Colleton County Council v. McConnell, No. 3:0 1 -CV-35 81 , 201 F. Supp .2d 6 18 (D . S .C. Mar . 20 , 2002)

The complaint alleged that, the governor having vetoed on August 31, 2001, the legislative andcongressional redistricting plans passed by the General Assembly, and the General Assembly havingfailed to override the vetoes, the legislative process was at an impasse. It requested the court to enjoin thefurther use of the existing districts and draw new legislative and congressional districts for use in the2002 elections. On March 20, 2002, the court adopted legislative and congress i onal plans. On April 18 ,2002, the court issued an order clarifying that two special elections, one for the state House and one forthe state Senate , should be conducted under the old redistricting plan , not the new one.

State Contacts

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adopted a plan submitted by the plaintiffs. The plan reduced the American Indian voting-age populationin District 27 from 86 percent to 65.56 percent and divided the adjacent District 26 into a new HouseDistrict 26A with 74.36 percent American Indian voting-age population and District 26B with a majority-white population. The plan continued House District 28A with a majority-Indian population. It thusincreased from four to five the number of Indian-preferred candidates who were likely to win seats in theLegislature.

Bone Shirt v. Hazeltine, No. 05 -4010 (8th Cir. Aug. 22, 2006)

The Court of Appeals affirmed the finding of the district court that the legislative plan violated § 2 of theVoting Rights Act, the remedial plan adopted by the district court, and the finding of the district courtthat its plan need not be precleared under § 5 of the Voting Rights Act before taking effect.

State Contact

Rueben B. BezpaletzChief of Research and Legal ServicesLegislative Research CouncilState CapitolPierre, SD 57501-5070605/773-3251605/773-45 76 Faxreuben.bez�aletz state.sd.us

Tennessee

Crone v. Darnell, 2001 WL 1 5 89601 , 176 F. Supp .2d 8 1 4 (W .D . Tenn . 200 1 )

The complaint alleged that the 2000 census showed that the current senate, house, and congressionaldistricts were malapportioned, that the Tennessee General Assembly had adjourned its regular session onAugust 7, 2001, and was not scheduled to reconvene until January 8, 2002. It alleged that the filingdeadline was April 4, 2002, that the primary was scheduled for August 1, 2002, and the general electionfor November 5, 2002. It alleged that plaintiff qualified electors had a right under the U.S. Constitutionand federal law to have new districts drawn 90 days before the filing deadline. It requested the court toenjoin further use of the current districts and adopt a new redistricting plan. The three-judge court foundthat there was no federal right to 90 days notice of new district boundaries and dismissed the complaintfor failure to state a claim on which relief could be granted.

State Contact

Douglas HimesLegislative AttorneyOffice of Legal ServicesG-10 War Memorial BuildingNashville, TN 37243-0059615/741-9506615/741-1146 Faxdoughimes@ aitol.tn. sov

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Mayfield v. State, No. 6:01-CV-218 (E.D . Tex., complaint fi led May 14, 200 1 ) consol. with Balderas v.State

Associated Republicans of Texas v. Cuellar, No. 2001-26894 (281St Dist. Ct., Harris County, complaintfiled May 24, 2001) abated by Perry v. Del Rio

Associated Republicans of Texas v. State, No . W-0 1-CA-167 (W.D. Tex. , complaint filed May 25 , 2001)consol , with Balderas v . State

Manley v. State, No. 6:01-CV-231 (E.D. Tex., complaint fi led May 2 8 , 200 1) consol. with Balderas v.

StaCeCoterav. Perry, No. GN-101660 (353rd Dist Ct., Travis County, complaint fi l ed May 3 1 , 200 1 ) consol.

with Del Rio v. Perry

Rivas v. Cuellar, No. 2001-33760 (152°d Dist. Ct., Harris County, complaint filed Jul. 3, 2001) consol.with Associated Republicans of Texas v. Cuellar

Anderson v. State, No. W-O1-CA-214 (W .D . Tex ., complaint filed July 6, 200 1) consol. with Balderas v.State

Connolly v. Perry, No. GN-102250 (98th Dis t . Ct ., Travis County, complaint fi l ed July 23, 2001) consol.with Del R io v. Perry

Perry v. Del Rio, 2001 WL 1 044910, 66 S.W.3d 23 9 (Tex . S ep . 12, 2001 ) Opinion, Dissent

The complaint was filed December 27, 2000, the day before state reapportionment numbers were releasedby the Census Bureau, in Travis County district court in Austin. It alleged that the current congressionaldistricts were malapportioned because Texas would increase from 30 to 32 seats as a result of the 2000census and the Legislature would fail to redraw them, and that population estimates by theTexasLegislative Council showed that the current districts were malapportioned. It requested the court toestablish a deadline for the Legislature to act and to draw a plan if the Legis lature failed.

The Legislature adjourned sine die on May 28, 2001, without redrawing either legislative orcongressional districts . On May 31, the complaint was amended to allege these new facts and a new suit ,Cotera v. Perry was also filed in Travis County district court. On July 3, 2001, the Governor announcedhis intention not to call a special session Co consider redistricting "at this time."

By the end of July , two other suits, Associated Republicans of Texas and Rivas v. Cuellar, had been filedin Harris County district court in Houston, and five suits had been filed in federal district court , allmaking similar claims and demanding similar relief

After a summer of motions and appeals challenging the jurisdiction of the various courts over the varioussuits on ripeness and other grounds, the Supreme Court of Texas ruled that the Travis County districtcourt had the dominant jurisdiction, even though the Del Rio case was not ripe at the time it was filed,since it became ripe before it was decided and its complaint was the first to be amended or filed after thecase became ripe. The case became ripe only after the census data were released on March 12, 2001, andthe Legislature adjourned sine die on May 28, 2001, without enacting a plan. The court ordered the casesin Harris County district court to be abated.

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Mayfield v. Texas, No. 01-1126, Mexican American Legislative Caucus- Texas House ofRepresentatives v. Texas, No. 01-1225, Amps v. Texas, No. 01-1242, 536 U.S. 919 (U.S. June 17, 2002)(mem.)

Following the failure of the state legislature to adopt a redistricting plan for the Senate , the LegislativeRedistricting Board adopted a plan on July 24, 2001. On October 15, 2001 , the plan was precleared bythe U.S. Department of Justice. Plaintiffs attacked the plan for failure to draw additional Latino majoritydistricts in South Texas and in Dallas and Tarrant counties, and for failure to draw minority "influence"districts in Dallas, Harris, Tarran t, and Jefferson counties . Amicus curiae Texas NAACP argued to a thirdAfrican-American opportunity district in Harris county. The three-judge court found that it was notpossible to create additional effective majority districts without diluting existing majority-minoritydistricts. The court declined to find any necessity to create minority "influence districts." It also found theevidence insufficient to establish that African Americans and Latinos voted cohesively enough toconstitute a majority in a single-member district . In a concurring opinion, Judge Hannah expressed"shock" at the way the State of Texas had disregarded traditional districting principles such ascompactness, respect for political subdivisions, and respect for communities of interest in drawing Senateand House district boundaries , but concurred that the plans did not violate federal law.

The plan for the House of Representatives had likewise been drawn by the Legislative RedistrictingBoard on July 24, 2001 , but on November 16, 2001 , the U.S. Department of Justice objected to the planas causing a retrogression with respect to the number of Hispanic opportunity districts. The three-judgecourt found that the State could not have created additional Latino majority districts without riskingretrogression in existing Latino maj ority districts. The court found the evidence insufficient to show thatAfrican Americans, Latinos, and Asians had voted sufficiently cohesively to constitute a majority in asingle-member district and therefore declined to create an African-American opportunity district inTarrant County. The court modified the plan to address the objections raised by the Justice Departmentand adopted it as the court's own. Notwithstanding that the plan adopted by the court "unavoidably bearssome resemblance to plans submi tted by the parties in certain areas," the court asse rted that the plan wasa judicial plan entirely of its own making and therefore "not subject to the preclearance requirements ofSection 5 of the Voting Rights Act."

Session v. Perry, No . 2:03-CV-354, 298 F. Supp.2d 451 (E.D. Tex. Jan. 6, 2004), vacated and remandedsub nom . Jackson v . Perry, 543 U.S . 941 (Oct. 18, 2004) (No. 03-1391 et al.) (mem.)

The 2002 election for congressional seats was run under the plan adopted by the federal district court inBalderas v. State, No. 6:01-CV-158 (E.D. Tex. Nov. 14, 2001). In 2003, the Texas Legislature attemptedto pass a new congressional plan during its regular session and two special sessions, and succeededduring its third special session, enacting H.B. No. 3, Plan 1374C, on October 13, 2003. Plaintiffs allegedthat Plan 1.374C was invalid because "(1) Texas may not redistrict mid-decade; (2) the Planunconstitutionally discriminates on the basis of race; (3) the Plan is an unconstitutional partisangerrymander; and (4) various districts in Plan 1374C dilute the voting strength of minorities in violationof § 2 of the Voting Rights Act." The three-judge court rejected the challenges.

Henderson v. Perry, No. 2:03-CV-354-TJW, 399 F. Supp.2d 756 (E.D. Tex. June 9, 2005), prob. juris.noted sub nom. League of United Latin American Citizens v. Perry, No. 05-204 et aL (mem.) (Dec. 12,2005), aff'd in part, rev'd in part, vacated in part, and remanded sub nom. League of United LatinAmerican Citizens v. Perry, No. 95-204, 548 U.S. 399 (U.S. June 28, 2006)

On remand from the U . S. Supreme Court, the three-judge court again rejected the challenges.

League of United Iatin American Citizens v. Perry, No. 05-204 548 U_S_-_399 (U.S . June 28 , 2006)

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portions of Bexar County (San Antonio area) . The court then made conforming changes to adjacentdistricts. District 25 was confined to the area east of San Antonio , rather than running from the RioGrande to Austin. District 15, which likewise had run from the Rio Grande almost to Austin, wasterminated at the southern border of District 25.

All incumbents were retained in their old districts . A special election for the five altered districts was setto be held concurrently with the general election on November 7, 2006.

NorChwestAustin Municipal Utility Dist. No. I v. Mu7tasey, No. 06-1384, 573 F. Supp2d 221 (D.D.C.May 30, 2008), rev'd Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder;No. 08-322, 557 U.S. _(June 22, 2009)

Plaintiff, a municipal utility district in Texas, a covered jurisdiction , sought a declaratory judgmentexempting it from § 5's "preclearance" obligation. In the alternative, plainti ff challenged § 5'sconstitutionality, arguing that when Congress extended the provision in 2006 it lacked sufficient evidenceof racial discrimination in voting to justify the provision's intrusion upon state sovereignty. A three-judgefederal court rejected both claims. First, plaintiff was ineligible to seek a declaratory judgment exemptingit from § 5 because it did not qualify as a "political subdivision" as defined in the Voting Rights Act.Second, applying the standard set forth by the Supreme Court in South Carolina v . Katzenbach, 383 U.S.301 (1966), the Court concluded that, given the extensive legislative record documenting contemporaryracial discrimination in voting in covered jurisdictions, Congress's decision to extend § 5 for anothertwenty-five years was rational and therefore constitutional. Alternatively, the Court concluded that § 5'sextension was constitutional even if, as plaintiff argued, its challenge was controlled by the stricterstandard set fo rth in City ofBoerne v. Flores , 521 U.S. 507 (1997) . Given § 5's tailored remedial scheme,the extensiorrqualified as a congruent and propo rtional response to the continuing problem of racialdiscrimination in voting.

Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder, No. 08-322, 557 U.S ._ (June 22, 2009)

On appeal, the U.S. Supreme Court reversed. It expressed serious doubt that § 5's "current burdens [were]justified by current needs," slip op. at 6-11, but avoided the constitutional issue by permi tting the utilitydistrict to escape those burdens by "bailing out" of the preclearance requi rement, slip op: at 11 -17.

Section 4(b) of the Voting Rights Act authorizes a State or political subdivision to bail out of coverage by§ 5 by petitioning the U.S. District Court for the District of Columbia for a declaratory judgment that ithad not engaged in prohibited discrimination for the preceding ten years. Section 14(c)(2) defines apolitical subdivision as a county or parish or another subdivision that conducts registration for voting.Since the municipal utility distric t did not fit that definition, the district court had denied bailout. TheSupreme Court reversed, saying that "specific precedent, the structure of the Voting Rights Act, andunderlying constitutional concerns compel a broader reading of the bailout provision." Slip op. at 12. TheCourt found that amendments to § 4 made in 1982 had the effect of broadening the meaning of "po l iticalsubdivision" in that section to include all political subdivisions of a State, including municipal utilitydistricts that do not register voters. Slip op, at 14-16. It remanded the case to the district court for furtherproceedings consistent with the opinion. Slip op. at 17.

State Contacts

Clare Dyer David HannaManager , Mapping and Redistricting Counsel

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V.S.A. §_ 1903(b)(1 )-(2) that "districts shall be formed consistent with the following policies insofar aspracticable:

(1) preservation of existing political subdivision lines;

(2) recognition and maintenance of pattern s of geography, soc i al interaction, trade, political tiesand common interests . . . .. "

The court noted that petitioners had not come forward with a better plan, since the plan they preferred hadbeen considered by the Legislature and found to have more towns objecting to it than the plan adopted . Itfound that petitioners had not met the heavy burden required to successfully challenge a legislativereappo rtionment plan.

State Contact

Michael ChernickLegislative CounselLegislative Council1 15 State St.Montpelier, VT 05633-5301802/828-2208802/828-2424 Faxmikec(�a le.state.vt.us

Virginia

Virginia v. Reno, No. 1:00CV00751 , 1 17 F. Supp.2d 46 (D . D .C . Oct . 18 , 2000) (three -judge pane l ),aff'd Virginia v. Reno _ U. S . _(Jan . 8 , 2001) (No. 00-862) (mem.)

The state's request to preclear law barring use of census data compiled in part through sampling andstatistical methods for congressional and state redistricting was dismissed as premature, pending releaseof census counts .

West v. Gilmore, No. CHO1-84 (Cir. Ct., City of Salem, Mar. 1 1 , 2002), rev'd sub nom. Wilkins v. West,No. 021003 (Nov. 1, 2002)

The complaint alleged that the 2001 House and Senate redistricting plans segregated voters on the basisof race and packed minority voters into just a few distric ts, in violation of the Voting Rights Act, theEqual Protection Clause of the Fourteenth Amendment, and the Virginia Constitution. It alleged that themajority-minority districts were bizarrely shaped, were not compact, and did not respect the boundariesof political subdivisions or communities of interest, and that some were contiguous only by water. Thecomplaint alleged that both House and Senate plans were partisan gerrymanders that ignoredcommunities of interest and paired high-profile Democratic leaders, in violation of the Free Speechprotections of the Virginia Constitution. It alleged that the plans discriminated against women by pairingmore women than men incumbents and by changing their district boundaries more than those of men, inviolation of the Virginia Constitution's prohibition against discrimination on the basis of gender.

Trial was held on September 20-22 , 2001. At the conclusion of the trial, Judge Richard C. Patt isall ruled

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2000s Redistricting Case Summaries Page 61 oP65

the Department of Justice, violated § 2 of the Voting Rights Act because it diluted minority votes andsignificantly impacted the abili ty of African American voters to elect a candidate of their choice.Plaintiffs did not seek to redraw the district as a majority-minority district , but rather to increase theAfrican American population from 33.6 percent of the total populat i on to about 40 percent of the totalpopulation , roughly the same as before the district was redrawn . Against the argument that no court hadpreviously held that § 2 of the Voting Rights Act required the creation of a minority " influence " districtwhere the minority population was not sufficiently large to form a majority in a single-member district,plaintiffs argued that they sought the creation of a minority "coalition" district, which they defined as onewhere the votes of blacks would combine with the crossover votes of whites to elect the black candidateof choice. The court held that § 2 did not require the creation of either "infl uence" or "coalition" districtsand dismissed the complaint.

Stat e Contacts

Mary SpainSenior AttorneyDivision of Legislative Services9 1 0 Capito l Street, 2nd FloorRichmond, VA 23219804/7 8 6-359 1804/37 1 -01 69 Faxmspain(�alestate.va.us

Washington


State Contacts

Ryan MooreStaff CounselSenate Republican CaucusP.O. Box 40482Olympia, WA 98504-0482360/376-7039

moore.rvan leg .wa.gov

Katie BlinnAssistant Director of ElectionsOffice of the Secretary of StateP.O. Box 40220Olympia, WA 98504-0220360/902-4168360/586-5529 Faxkblimi secstate.wa.�ov

Dave Valiant

Robert J . AustinSection Manager of Special ProjectsDivision of Legislative Services910 Capitol Street, 2°d FloorRichmond, VA 23219804/786-3591804/371-0169 Fax'aiustin aleg,state.va.us

Keith BuchholzSenior CounselSenate Democratic CaucusP.O. Box 40464Olympia, WA 98504360/786-7343360/786-7020 Faxbuchholz.keith@le .wa.ov

Nick PharrisRedistricting Project AnalystOffice of the Secretary of StateP.O. Box 40229Olympia, WA 98504-0229360/725-5774360/664-4619 FaxnpharrisCcr�secstate.wa.gov

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Arrington v. Elections Board, No. 0 1-G121 (E.D. Wis. Nov. 28, 2001)

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The complaint alleged that population shifts had rendered Wisconsin's congressional districts no longer"as equal in population as practicable," that Wisconsin had gone from nine seats to eight, and that sincethe state Senate was controlled by Democrats and the Assembly was controlled by Republicans, theLegislature would fail to redraw the districts to meet constitutional requirements . It requestedappointment of a three-judge panel, an injunction against fu rther use of the unconstitutional districts, andthat the court draw a plan if the Legislature failed to do so . On November 28, 2001, the three-judge panelfound that plaintiffs had standing to bring the suit and that it was sufficiently ripe not to be dismissed.Nevertheless , the court stayed its proceedings until February l, 2002, in order to give the Legislature anopportunity to do its constitutional duty . It set December 19, 2001, as the deadline for parties to submittheir proposed schedules for the action and January 7, 2002 , as the date for a status/planning conference.One judge dissented , saying that the suit was premature unti l the Legislature had either passed an invalidplan or failed to act in time to hold an election in November 2002 . He refused to take part in furtherproceedings until a new complaint was filed.

On March 26, 2002 , the Governor signed AB71 1, creating new congressional districts.

Jensen v. Elections Board, No. 02-0057-OA, 2002 WI 13 (Wis. Feb. 12, 2002)

The Wisconsin Supreme Court denied a petition for leave to file an original action in the Supreme Courtto declare the existing legislative and congressional districts invalid and draw new districts in the event ofa legislative impasse, on the ground that the petition was submitted too late in the process. The federalcourt in Arrington was already well on its way to adopting a plan, should that be necessary, and for thestate court to enter the "political thicket" would only put it "on a collision course with the case nowpending before the federal three-judge panel." Had the court 's jurisdiction been invoked earlier, "thepublic interest might well have been served by our hearing and deciding this case. As it stands, it is not"The court sought to avoid both conflict and duplication of effort at taxpayers' expense. The courtscheduled a hearing for October 14, 2002 , on proposed new rules for how it would exerc ise originaljurisdiction in future redistricting cases.

Baumgart v. Wendelberger , No. 0 1-C-12 1 (E.D . Wis. May 30, 2002)

On May 22, 2002, the three-judge federal court issued its order adopting legislative districts,accompanied by maps. The court rejected all 16 plans submitted by the parties and amici and drew one ofits own, beginning with the 1992 court-drawn plan and making modi fications necessary to achievepopulation equality, using whole wards, cities, and counties . The court 's "maximum deviation" (overallrange) was 1.48 percent. It prese rved the cores of prior districts be tter than the plans submitted to it, splitfewer municipalities, and had better compactness scores. Rather than determine whether § 2 of the VotingRights Act required the creation of majori ty -minority districts, the court preserved the five African-American majority assembly districts, one African-American in fluence assembly district, and one Latinomajority assembly district in Milwaukee County that had been drawn by the court 's predecessor in 1992.The court allowed the part ies five days to review and comment on a draft plan before issuing the finalplan. On May 30, 2002 , the court issued an amended memorandum and order as its final plan. On July11, 2002 , the court issued an order making technical corrections to the plan.

S tate Contacts

Larry Barish Steve Miller

http ://www.senate.mn/departments/scrhedis thedsum2000/redsum2 000.hrin 1 2/5/20 1 1


Thi s page is maintained by the Committee o n Redistricting and Elections for the Nati o na l Con ference o f State LegislaturesUpdate: October 2, 2009 (psw)

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