2002 Florida Reapportionment and Redistricting Memorandum ... · 4/9/2002  · II. Congressional Redistricting 12 III. State Legislative Districts 15 IV. Florida Reapportionment and

Office of Attorney General Bob Butterworth

2002Florida Reapportionment

and Redistricting

Memorandum of Law

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Table of Contents

Page(s)

Preface 3

Executive Summary 4

Introduction 7

I. Matters Particular to Florida 9

II. Congressional Redistricting 12

III. State Legislative Districts 15

IV. Florida Reapportionment and Redistricting SinceReynolds v. Sims 20

V. Section 2 of the Voting Rights Act of 1965 32

VI. Gerrymandering 37

VII. Section 5 of the Voting Rights Act of 1965 38

VIII. Federal Regulations 43

IX. Practical Considerations 48

Glossary 49

Summary of Significant Cases 56

Footnotes 71

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Preface

This memorandum reviews the leading cases on reapportionment andredistricting in order to provide the reader with a historical perspective whilefocusing on the legal standards applicable to the process. Where no clear con-clusions are drawn, whatever ambiguity exists is due to the United States SupremeCourt's handling of these issues on a case by case basis with profoundemphasis placed on fact-specific scenarios. Ten years ago, this office reported that theresults of this scenario has been a series of bare majority decisions which sometimesseem to conflict with prior opinions.

Today, after the United States Supreme Court has wrestled with voting rights issues noless than on 10 occasions, the waters are less cloudy, but by no means crystal clear.Thus, it is important to remember that reapportionment remains a continuouslydeveloping area of the law, and as new decisions are issued, the law will bemodified and, hopefully, clarified to provide more definitive guidance for thefuture.

The following guidelines and review of the law are also provided to assistthe Legislature in avoiding challenges to any plan which it may adopt in theupcoming reapportionment session.

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Executive Summary

Article I, Section 2 of the U. S. Constitution establishes the standard forCongressional districting. The command that United States Representatives bechosen by "the people of the several states" means that "as nearly as practicableone man's vote is to be worth as much as another's." The Equal Protection Clauseestablishes the standard for state legislative districts. States must "make an honestand good faith effort to construct districts, in both houses of its Legislature, asnearly of equal population as is practicable." Thus, the goal of reapportionmentis political equality, which means "one person, one vote."

Article III, Section 16, Florida Constitution, insures the adoption of a reap-portionment plan, either by the Legislature or the Supreme Court of Florida. TheLegislature may draw up a plan in its regular session or, if it does not, in a specialapportionment session called by the Governor. If a plan adopted in either theregular or special session is disapproved by the Court, the Legislature will gointo an extraordinary session to draw a plan. If no plan is adopted in either thespecial session or the extraordinary session, or if the plan drawn in an extraordi-nary session is disapproved by the Court, the Court will draw up the plan andthe Legislature will lose its chance to do so. The Legislature must consider 2002time constraints as well,2 since the first primary is statutorily set for September10, 2002 (Section 100.061, Florida Statutes) and the first day of candidate qualifyingfor July 15, 2002 (Section 99.061, Florida Statutes). By constitutional directive (Art.VI, §5), the general election for 2002 will be on November 5. Therefore, given aregular session slated to begin on January 22, 2002, and keeping in mind that aconstitutional amendment would be required to change the date for the general election,the Legislature must take prompt action to establish a reapportionment plan.

Based on gains in the state's population, Florida must redraw Congressionaldistrict lines because the number of its representatives increases from 23 to 25.The goal for this plan should be zero deviation from the ideal population, whichequals the state's total population divided by the number of seats. There arejustifications for deviation which have been accepted by the courts, but must be most compelling and none will justify a deviation greater than one or two percentfor Congressional districts. Even these figures should not be set as a goal, for thereis no deviation so small that it can go unjustified.

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State legislative lines may be drawn with more flexibility, but the populationfactor is still controlling. Three categories have been established by the courtsregarding permissible deviations from the ideal district population: 1) deviationsof less than 10 percent will not be sufficient alone to show discrimination;2) deviations between 10 percent and 16 percent require the state to show thedeviation is necessary to achieve a rational state policy and that the plan does notdilute or take away the voting strength of any group, and 3) deviations of over16 percent probably exceed constitutional limits. There is no guarantee, however,that any deviation will be allowed.

Single-member districts are the most legally acceptable, but multi-memberdistricts do not violate the Equal Protection Clause in and of themselves. Aviolation is established if it is shown that the political processes leading tonomination or election are not equally open to participation by members of aracial or ethnic minority class. This is done by demonstrating that these minoritieshave less opportunity than other members of the electorate to participate in thepolitical process and to elect representatives of their choice. Purposeful discrim-inatory intent need not be shown. The test for the presence of this bias is the“access to the political process" test-i.e., does the multi-member district "operate todilute the voting strength of racial or political elements of the voting population?"

Gerrymandering is the drawing of district lines to minimize voting strengthor maximize political advantage. Racial gerrymandering generally is forbidden.In cases where lines were drawn to avoid pairing incumbents or to achievepolitical fairness, such considerations have been held valid. Any gerrymander-ing invites litigation, however, so a nonpartisan approach is recommended.

The Voting Rights Act of 1965 ("The Act"), 42 U.S.C. §§ 1973 et seq., was passed tocombat "nearly a century of systematic resistence to the Fifteenth Amendment."3Hendry, Hardee, Hillsborough, Collier and Monroe Counties in Florida were includedin the Act's coverage in 1975 and 1976 because of the use of English-only electionmaterials for language minority groups in those counties where more than five percentof the voting age population was a single language minority group and where less than50 percent of that population was registered for or voted in the 1972 presidentialelection. This means that any change in voting procedure affecting these counties(such as redistricting) must be "precleared" before it can take effect. The fastestmethod of preclearance is submission of the plan to the U. S. Department of Justice,

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which reviews the plan within 60 days and determines whether it has the purpose oreffect of denying or abridging the right to vote of any ethnic or racial minority groups.The Attorney General of the United States will reject the plan if such purpose or effectis found or if he cannot determine that the plan does not have such purpose or effectof discrimination.

Judicial decisions since the passage of the Act provide guidelines as further set outin Section VII. Additional guidelines are found at 28 Code of Federal Regulations,Section 51.1, et seq. and are summarized in Section VIII.

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Introduction

Baker v. Carr4 is the United States Supreme Court case which -brought thefederal courts into the "political thicket" of reapportionment. The Court retreatedfrom its former position that malapportionment of a state legislature was a“political question" within the discretion of the states. Baker, solidified by sub-sequent rulings, requires that state apportionment meet the requirement ofpolitical equality. Political equality was enunciated as "one person, one vote" inGray v. Sanders.

The requirement of political equality in the context of apportionment isderived from Article I, Section 2, United States Constitution, and the EqualProtection Clause of the Fourteenth Amendment. Article I, Section 2, whichestablishes the standard for congressional districts, commands that United StatesRepresentatives be chosen "by the People of the several states, which means that“‘as nearly as is practicable, one man's vote in a congressional election is to beworth as much as another's.' " Wesberry v. Sanders. The Equal Protection Clause,which also establishes the standard for state legislative districts, requires "that a statemake an honest and good-faith effort to construct districts, in both houses of itsLegislature, as nearly of equal population as is practicable." This means that "thevote of any citizen is approximately equal in weight to that of any other citizenin the state." Reynolds v. Sims.

How is this "political equality" measured, and what terms do the courts use?The three terms used most often are:

1. The ideal district population, which equals the total state populationdivided by the total number of districts. This assumes a single-memberdistricting plan. If a multi-member districting plan is used then the idealpopulation is properly expressed as the ideal population per repre-sentative which equals the total state population divided by the totalnumber of representatives.

2. The degree to which a single district's population varies from the idealmay be stated in terms of absolute deviation or relative deviation. Adistrict's absolute deviation is equal to the difference between its popula-tion and the ideal district population expressed as a plus (+) or minus

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(-) number, meaning that the district's population exceeds or falls shortof the "ideal" by that number of people. Relative deviation is the morecommonly used measure, and is attained by dividing the district's ab-solute deviation by the "ideal" population. The resulting quotient indi-cates the proportion by which the district's population exceeds, or fallsshort of, the "ideal" population, and is usually expressed as a percentageof the "ideal" population.

3. The range is a statement of the population deviations of the mostpopulous district and the least populous district expressed either inabsolute or relative terms. The overall range is the sum of the deviationof the most and least populous district, disregarding the + and -signs, expressed in absolute or relative terms.

Additional terminology is defined in the glossary to this memorandum.

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1. Matters Particular to Florida

Article III, Section 16, Florida Constitution (1968), requires the Legislature,by joint resolution, to reapportion the state into not less than thirty (30) nor morethan forty (40) state senatorial districts, and into not less than eighty (80) nor morethan one hundred twenty (120) state representative districts. The requirement ofa joint resolution applies only to apportioning the state Legislature. It does notapply to congressional districting, leaving this procedure to adoption by generallaw. Although the joint resolution for legislative districting is not subject to theGovernor's veto, a congressional districting statute, passed by general law, issubject to this veto. See Florida Attorney General Opinion 071-97. Under ArticleIII, Section 7, and Article X, Section 12(e), the joint resolution redistricting theLegislature requires passage by a simple majority.

Neither the Florida Constitution nor court action dictates use of single-member or multi-member districts. Article III, Section 17, provides only thatapportionment shall be in accordance with the Constitutions of the United Statesand of Florida.

Article III, Section 16, Florida Constitution, requires that districts of the statehouse and senate be either contiguous, overlapping or of identical territory (seeGlossary). Compactness is not a constitutional requirement, and there is no stateor federal constitutional mandate that county or other political boundaries behonored in drawing district lines.

For Florida's reapportionment, the Legislature must keep in mind certaintime constraints. Section 100.061, Florida Statutes, establishes the first primarydate of September 10, 2002. The first day of qualifying is July 15, 2002, for federaloffice and July 22 ,2002, for state office. Article VI, Section 5, Florida Constitution,requires that the general election be held November 5, 2002 (the first Tuesdayafter the first Monday in November). These dates are important, as there mustbe an approved reapportionment plan by the time candidates qualify for fallelections. (History teaches that time must also be allowed for judicial review underArticle III, §16 of the Florida Constitution, and preclearance by the United StatesDepartment of Justice.

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A. Regular Session

Article III, Section 16(a), provides that reapportionment shall be completedby joint resolution by the end of the regular session. The convening of the 2002Legislature has been set for January 22. If a plan is so adopted, that is, by March 22,2002 (assuming a 60-day session), the Attorney General of Florida has 15 daysafter adoption to petition the Supreme Court of Florida for a declaration that theplan is valid. The Court has up to 30 days to permit adversary interests to presenttheir views and to enter judgment. If approved, the plan would become law by May2002. (Subject, of course, to preclearance by the United States Attorney Generalunder the 1965 Voting Rights Act, which will be discussed below.)

If the Florida Supreme Court disapproves the plan, the Governor has up to five daystoconvene an extraordinary apportionment session, which would give the Legislatureup to 15 days to adopt an acceptable plan. If a plan is adopted, the Attorney Generalhas 15 days to present it to the Court, which again has 30 days to permit adversaryinterests to present their views, and enter judgment. If the plan is disapproved,the Court will have 60 days from the submission by the Attorney General to drawup the Court's plan. If no plan is adopted, the Attorney General has 15 days to soinform the Court, which has 60 days thereafter to draw up its own plan.

B. Special Session

If the Legislature in regular session is unable to adopt a plan, the Governorhas 30 days to convene a special apportionment session, giving the Legislatureanother 30 days to adopt a plan. If a plan is adopted, the Attorney General has15 days to present it to the Court, which has 30 days to permit interested partiesto present their views and to enter judgment. If the plan is disapproved, theGovernor has five days from the date thereof to call an extraordinary apportionmentsession. If no plan is adopted, the Attorney General has five days from theadjournment of the session to so inform the Court, which will have 60 days toformulate its own plan.

The disapproval of the plan adopted by the special apportionment sessionresults in the convening by the Governor of an extraordinary apportionmentsession, giving the Legislature 15 days to adopt a plan. If a plan is adopted, the

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Attorney General has 15 days to present it to the Court, which will have 30 daysto permit adversary interests to present their views and to rule on it. Disapprovalwill give the Court up to 60 days from the date of the plan's submission by theAttorney General to formulate its own plan. If no plan is adopted by theLegislature, the Attorney General has up to 15 days to so inform the Court, whichwill have 60 days from that notification to draw up its own plan.

It is obvious, therefore, that careful pre-planning and expeditious action bythe Legislature are essential if there is to be a plan in place by July 15, 2002 (thedate statutorily set for the first day of qualifying of candidates). It appears theLegislature could agree on and adopt a defensible plan within a relatively shortperiod of time, if the proper groundwork has been laid. The qualifying andprimary dates are statutory and thus may be changed by general law (Sections100.061 and 99.061, Florida Statutes), but the general election date is set by theFlorida Constitution and may be changed only by constitutional amendment. Thepossibility of time conflicts must be considered so that progress can be judgedaccordingly. If the time for qualifying statute is not altered, it is desirable toconclude reapportionment prior to the end of the regular session to enablepotential candidates sufficient time to prepare for qualification.

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II. Congressional Redistricting

Florida must redraw its congressional district lines because of the increasefrom 23 to 25 members authorized for its representation in the United StatesHouse of Representatives. 5 Unlike legislative redistricting, which is accomplished byconstitutional procedures, Congressional redistricting is accomplished in the samemanner as the passage of any bill. Congressional redistricting must be approachedwith the objective of achieving zero deviation from population equality. Briefly, theideal district population is determined by dividing the state's population by the numberof seats available (congressional districts are always single-member, 2 U.S.C.,Section 2). A state's total deviation is determined by adding the percentage aboveideal population of the largest district and the percentage below ideal populationof the smallest district. The terms deviation and variation are used interchangeab-ly. The goal, as mentioned above, is zero deviation. Standards for drawing statelegislative districts are somewhat different than those for congressional district-ing and will be discussed later.

The following are listed as "rational state policies" which may be given tojustify deviations from population equality in congressional redistricting. Whatmust be emphasized, however, is that no one reason, or combination thereof, willjustify deviations from the population equality (one person, one vote) standard.These policies are not "court approved" in any sense and have been taken fromgeneralized isolated language contained in federal and Supreme Court opinions;that is, these courts might be persuaded, but they are not bound, by what theysaid earlier. No plan has ever been approved without the Court limiting itsdecision to the particular facts of the case. If any of the policies mentioned areemployed, (1) a policy statement should be in writing; (2) the policies must befollowed uniformly and consistently throughout the state; and (3) the policiesmust correlate to the actual lines drawn so as to accomplish the stated policy.

Some of these listed policy considerations, when given as the sole reason fora deviation, have been rejected by the courts. In any case, they will not justifydeviations from the ideal any greater than one or two percent. Establishing any targetmaximum percentages deviation-even of two percent-has resulted in theinvalidation of a state's plan. Kirkpatrick v. Preisler settled the question that thereis no point at which population deviations become de minimis; that is, there is nodeviation so small that it can go unjustified. The Kirkpatrick decision went on to

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say that the

nearly as practicable standard requires that the state make agood-faith effort to achieve precise mathematical equality. (Cita-tion omitted.) Unless population variances among congressionaldistricts are shown to have resulted despite such effort the statemust justify each variance, no matter how small.

With these caveats in mind, the following list comprises what the courts mightconsider legitimate interests incident to the effectuation of a rational state policyrelative to congressional redistricting. These are not recommendations, but onlyexamples of what might comprise a rational state policy.

1. Integrity of historical political subdivisions (counties) may be retainedinsofar as possible, but may not override the objective of population equality.(Neither constitution requires recognition of these boundaries.) The United StatesSupreme Court has rejected deviations of 4.13 percent, 5.97 percent and 13.1percent which were allegedly the result of state policy to maintain the integrityof county lines. Kirkpatrick, Wells v. Rockefeller 7 and White v. Weiser. 8

2. All districts should be contiguous and as compact as possible (seeGlossary). The federal Constitution requires neither, but districts which are notcontiguous and compact draw suspicion that they are drawn for discriminatorypurposes and thereby invite litigation.

3. Geographical features which are recognizable on the ground to anaverage voter might be used as boundaries. Such natural boundaries wouldinclude waterways, highways, streets, wildlife preserves, parks, national forests,etc. Again, using these boundaries may not override the objective of populationequality. In fact, following the Kirkpatrick decision this geographical justificationis very questionable. According to the Court:

Modern developments and improvements in transportation andcommunications make rather hollow, in the mid-1960's, mostclaims that deviations from population-based representation canvalidly be based solely on geographical considerations.

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Accordingly, deviations based on geographical features should only be per-mitted on a showing of a compelling necessity, such as obvious physical barriersto the exercise of the right to vote.

When employing any of these policies, keep in mind the following:

1. The courts will permit only those population variances among congres-sional districts that "are unavoidable despite a good-faith effort to achieveabsolute equality, or for which justification is shown." White v. Weiser.

2. Regardless of population equality, no plan which "invidiously dis-criminates" against any recognizable group will be allowed. "Any recognizablegroup" includes, but is not limited to, groups identifiable on the basis of race,color, creed or national origin; identifiable as comprised of urban or rural interest;or economic, political, or other group interest.

3. Mathematical equality must be sought.

4. If an alternative plan is submitted that provides for greater populationequality, the Legislature should consider it and reject it only if ample justificationis given for the rejection. It will be the state's burden to prove that there was ajustifiable reason for rejecting such an alternative plan and the burden of proofwill be very difficult to meet. The courts frequently adopt an alternative planwhich provides for a smaller deviation when the Legislature does not justify itsfailure to adopt that plan.

5. The Legislature should not consider history alone, nor economic orother group interests, nor practical political compromise as rational state policysufficient to justify any deviation from mathematical equality.

6. The task of justifying deviations after the plan has been adopted shouldnot be left to the Attorney General. Remember that deviations should not beallowed without a reason; all deviations must be justified by a rational statepolicy. Reasons stated after-the-fact are usually rejected by the courts.

7. Any plan or policy which is adopted must be applied consistently anduniformly in all applicable situations.

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III. State Legislative Districts

The United States Supreme Court, in Reynolds v. Sims, acknowledged that“somewhat more flexibility may ... be constitutionally permissible with respect tostate legislative apportionment than in congressional districting," but the EqualProtection Clause "requires that a State make an honest and good faith effort toconstruct districts in both houses of its legislature, as nearly of equal populationas is practicable." The Reynolds Court conceded that mathematical exactness orprecision is hardly a workable constitutional requirement in legislativedistricting.

So long as the divergences from a strict population standard arebased on legitimate considerations incident to the effectuation of arational state policy, some deviations from the equal populationprinciple are constitutionally permissible with respect to the appor-tionment of seats in either or both of the two houses of a bicameralstate legislature.

However, even in view of a rational state policy, the population factor is still thecontrolling consideration.

The Reynolds Court, having enunciated the above principles,

... deemed it expedient not to attempt to spell out any preciseconstitutional tests. What is marginally permissible in one statemay be unsatisfactory in another, depending on the particularcircumstances of the case. Developing a body of doctrine on acase-by-case basis appears to us to provide the most satisfactorymeans of arriving at detailed constitutional requirements in thearea of state legislative apportionment.

Since Reynolds, a number of United States Supreme Court decisions haveprovided further guidance in this area. The Court has specifically told Floridathat overall deviations of 25.65 percent in the Florida Senate and 33.55 percent inthe Florida House are unconstitutional in light of Florida's failure to articulateacceptable reasons for the deviation. Swann v. Adams.9

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The outer limits of allowable variation were suggested by the Court in Mahanv. Howell,10 when, in a decision limited to the complex facts of that case, a 16.4percent variation was said by the Court to "approach, but not exceed" the limitsunder which equal protection would be satisfied. In Connor v. Finch," however,variations of 16.5 percent and 19.3 percent in a state senate and house, respec-tively, were rejected. Similarly, in Chapman v. Meier, 12 a 20.14 percent overalldeviation in a court-ordered plan was rejected.

On the other hand, the Court in White v. Regester, 13 held that a populationvariation of 9.9 percent was insufficient, standing alone, to establish discrimina-tion. Also, in Gaffney v. Cummings, 14 the Court accepted a 7.83 percent deviation.

Gaffney is also noteworthy because the Court said:

It is now time to recognize, in the context of the eminentlyreasonable approach of Reynolds v. Sims, that minor deviationsfrom mathematical equality among state legislative districts areinsufficient to make out a prima facie case of invidious discrimina-tion under the Fourteenth Amendment so as to require justificationby the State.

The Court similarly concluded that a 9.9 percent deviation did not requirejustification by the state. (But note below the possibility of a shift in the burden ofproof depending upon the particularized facts.)

From the above case law, it appears that the federal courts have establishedtwo rough dividing points at approximately the 10 percent and 16.5 percentlevels. The decisions in Gaffney, White v. Regester and Connor indicate that in adistricting plan having less than 10 percent overall deviation, the challenger hasthe initial burden of showing that the plan discriminates so as to violate the EqualProtection Clause in some manner other than mere population deviation, afterwhich the state must justify its plan on the basis of a rational state policy. Thedecision in Mahan seems to indicate that in a districting plan having more thana 10 percent but less than 16.5 percent overall deviation, the state will have theinitial burden of showing that the 10 to 16.4 percent range is necessary toimplement a rational state policy and that the plan does not dilute or take awaythe voting strength of any particular group of citizens. White v. Regester. Mahanindicates that overall deviations of greater than 16.4 percent probably exceed

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tolerable constitutional limits. These percentages might be changed somewhat ifthe mean deviation is relatively high or low. Also, in Chapman and Connor, theSupreme Court has indicated that where court-ordered plans are involved, thecourts will be held to a stricter standard.

Even in view of the above, it must be stressed that there is no guarantee thatany variation from exact equality in state legislative districts will be approved bythe courts, as every state plan will be judged individually. Therefore, equalrepresentation should be the goal, and any variations, no matter how small, mustbe justified by a rational state policy. The Legislature should not assume that a 10percent de minimis approach will be upheld. Although the Court has put theburden on the challengers in the 10 percent cases, it has not said that a challengercannot meet that burden. Again, if some party presents a plan to the Court withgreater mathematical equality than the state's plan, the burden will shift to thestate to justify the greater inequality of the state's plan based on a rationalstate policy.

The above narrative regarding percentage variations must take into account the rapidadvances in technology that could well relegate the variations set out above to history.Every effort should be made, using the best technology available, to meet a zerovariation among the districts, and whatever deviation is ultimately reached, if any,must be carefully, fully and persuasively explained. The courts will be less and lesstolerant as time goes by of casual, undocumented explanations

The question now arises as to what criteria might constitute a rational statepolicy. The only rational state policy expressly approved by the Supreme Courtas justification for population equality variations in state legislative districts is themaintenance of political subdivision (county) lines, though, of course, this con-sideration will not be allowed to emasculate substantial equality of repre-sentation, and the Court at times has rejected it where deviations of greater than16.5 percent existed. The following may constitute a rational state policy forvariations:

1. All districts must be contiguous (Article III, Section 16(a), FloridaConstitution), and should be as compact as possible (see Glossary). Districtswhich do not have these characteristics draw suspicion that they were con-structed for a discriminatory purpose.

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2. Geographical features which are recognizable on the ground to anaverage voter might be used as boundaries. Such natural boundaries wouldinclude waterways, highways, streets, wildlife preserves, parks, national forests,etc. Again, using these may not override the objective of population equality. (Inview of "modern developments in transportation and communications,"Kirkpatrick, the courts have frowned on using this factor as the sole justificationfor a population deviation.)

3. In Gaffney v. Cummings, the Court said the "political fairness" objective(the theory that the political makeup of each house should roughly reflect theproportion of the statewide total vote received by candidates of each major party)did not constitute a prima facie violation of the Equal Protection Clause. However,such a situation raises the specter of political gerrymandering, see Part VI.

The following are never acceptable justifications for variations:

1. Any factor which is not free of the taint of arbitrariness ordiscrimination;

2. Racial and ethnic gerrymandering (But see the discussion of this issuein the section on Section 2 of the Voting Rights Act and single-member vs.multi-member districts, Part V);

3. The possibility that deviations in other states are greater than Florida's(each case is considered individually, on its own facts), Swann v. Adams;

4. The fact that greater variations exist in states whose plans have ap-parently passed in the Supreme Court's view by their being affirmed. ("What ismarginally permissible in one state may be unsatisfactory in another, dependingupon the particular circumstances of the case." Reynolds v. Sims);

5. The argument that the plan comes "as close as practical" to completepopulation equality has been rejected by the Supreme Court. Swann. The "nearlyas practicable" standard requires that the Legislature make a good faith effort toachieve precise mathematical equality. The rule is one of practicability rather thanpolitical practicality. Kirkpatrick.

One other factor to consider is that of protecting incumbents. The Supreme

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Court has indicated that minimizing contests among incumbents is not invidious-ly discriminatory. However, drawing district lines to accommodate this purposemay invite litigation and must be justified. When the protection of incumbentsis used to justify gerrymandering, a justiciable issue arises. See the section ongerrymandering, Part VI.

In addressing population variations, it must be emphasized that advancesin computer and other technology since the cited court decisions will profoundlyaffect the ability to rely on them as precedent for any reapportionment-redistrict-ing efforts for the 2002 process. Hence, it cannot be overemphasized that every effortshould be made to strive for zero deviation.

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IV. Florida Reapportionment and RedistrictingSince Reynolds v. Sims

In Swann v. Adams, 15 the United States Supreme Court reversed a three-judgedistrict court which had upheld Florida's 1963 apportionment plan, andremanded the case for further proceedings consistent with the newly enunciatedReynolds view that the state must make an honest and good-faith effort toconstruct district lines "as nearly of equal population as is practicable."

After remand, the district court held unconstitutional Florida's 1965 appor-tionment plan. However, the district court approved the plan on an interim basis,effectively perpetuating unconstitutional apportionment through 1969. Swann v.Adams. 16 Again, the United States Supreme Court reversed and remanded withinstructions that a valid reapportionment plan be made effective for the 1966elections. Swann v. Adams. 17

Following the decision of the United States Supreme Court that a validreapportionment plan be established for the 1966 elections, the FloridaLegislature met in special session and passed a plan. This 1966 plan had overallvariances of 25.65 percent in the Senate and 33.55 percent in the House. Thedistrict court found that such variances were not great enough to require upset-ting the legislative plan since it did not discriminate to any great extent. Accord-ingly, the plan was held constitutional. Swann v. Adam. The United StatesSupreme Court disagreed and held the plan unconstitutional because Floridafailed to present acceptable reasons for the variations and because variations of30 percent among senate districts and 40 percent among house districts couldhardly be deemed de minimis. Swann v. Adams. 18

After the United States Supreme Court's rejection of the 1966 plan, thedistrict court considered and rejected legislation, which had a total variation of19.76 percent among senate districts and a total variation of 26.12 percent amonghouse districts. The district court finally accepted a plan offered by a friend ofthe court, Dr. Manning Dauer of the University of Florida. The plan approvedcontained a total variance of 10.05 percent in the Senate and 10.18 percent in theHouse. The district court required primary and general elections in 1967 in all ofthe newly drawn districts and further provided that the terms of all legislatorselected pursuant to the order would expire with the general elections in 1968.

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Swann v. Adams. 19 The district court order, in effect, dissolved the old Legislatureand required new elections in accordance with the court-ordered apportionment.

Shortly after the Swann Court implemented a legislative apportionment plan,20 Florida's plan was once again challenged in Gong v. Kirk.This challenge was to Florida's congressional districts, rather than its legislativedistricts, as in Swann v. Adams. In Gong, the three-judge district court heldFlorida's congressional apportionment unconstitutional in view of the fact thatit had a total variance of 21.94 percent. The district court ordered the then-existingplan abandoned and adopted a plan based largely on a House bill, which hadearlier failed to pass in the Legislature. The court-ordered plan allowed a totaldeviation from mathematical equality of 1.94 percent. The district court's orderwas affirmed by the United States Supreme Court in Kirk v. Gong. 21

Following the two court-ordered apportionment plans of 1967 (Swann v.Adams and Gong v. Kirk), the Florida Legislature adopted a joint resolution whichapportioned the Legislature in 1972. The apportionment plan had a total varianceof .30 percent among House districts and a total variance of 1.15 percent amongSenate districts. The Attorney General petitioned the Supreme Court of Floridafor a declaratory judgment determining the validity of the apportionment asrequired by Article III, Section 16(c), Florida Constitution (1968). In reApportionment Law, Senate joint Resolution Number 1305. 22 The Supreme Courtof Florida, in a 4-3 decision, held that the legislative reapportionment whichprescribes variable multi-member districts was valid on its face. Numeroussubsequent cases have held the 1972 legislative apportionment plan valid in itspractical effect and/or application. Florida's 1972 legislativeapportionment and Congressional districting plans were upheld in subsequentchallenges. In re Apportionment Law, Senate Joint Resolution Number 1305;Wendler v. Stone; 23 In re Apportionment Law, Senate Joint Resolution Number 130524 Wolfson v. Nearing 25; and Cardenas v. Smathers 26 and Milton v. Smathers.27

Despite Florida's reapportionment experience through 1980, the 1982process was fairly mundane. In the Florida Senate, the deviation from the idealbetween smallest to the largest district was 1.05 percent; for the House, .46percent. The plan included seven House districts with a black population of 52percent or higher; two Senate districts with a Hispanic population of 55 percentor higher; and one Senate district with a 65 percent black population.

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The reapportionment-directed issues raised in 1982 concerned whether theterritory within each district must be contiguous; whether each district must becontiguous with the next consecutively numbered district; whether a corridor ofI-4 was a sufficient connection to be contiguous; and whether there was anyintentional discriminatory practice in the adoption of the plan with regard tocertain Dade County House districts. In In re Apportionment Law, Senate JointResolution 1 E. 28 the Florida Supreme Court said "contiguous" means only thateach district must be contiguous within itself (contiguous numbering was notrequired); the I-4 corridor was a sufficient connection; and there was no showing ofany intentional discriminatory practice in the adoption of the plan.

However, it is important to note now that if a plan leads to the conclusionof the predictability of the defeat of candidates representing a protected class, theplan will be stricken as being discriminatory under Section 2 of the Voting RightsAct without the necessity of showing discriminatory intent. Thornburg v.Gingles. 29

In contrast to 1972, the openness of the 1982 process and the decisionto use single-member districts only (coupled with the high evidentiaryburden necessary to prove a constitutional violation), contributed to the leastcontentious redistricting process in Florida's modern history.

The relative ease by which 1982 redistricting was accomplished and the lack ofany federal and supplemental state judicial activity is in stark contrast towhat transpired in 1992. (The following is taken from Waas, “The Process and Politicsof Legislative Reapportionment and Redistricting Under the Florida Constitution,” 18Nova L. Rev. 1001 (Winter 1994) and provides an historical overview from which topursue the process in 2002).

The 1992 redistricting process was the product of unprecedentedpopulation growth and a fundamental change in federal voting rights laws.These two factors clashed with the state's traditional one-party dominationof Florida government to produce the most intense legislative districtrealignment in the state's history, dominated by racial and ethnic minoritygroup efforts to secure a greater piece of the state's political power pie.

According to the 1990 census, the state's population increased duringthe last decade by more than 30 percent, to just under thirteen million,

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from a previous 9.7 million." A substantial portion of this phenomenalgrowth resulted from the immigration of Hispanics from Central and SouthAmerica. Nowhere was this growth more evident than in heavily populatedDade County. As the number of Hispanics mushroomed, they becameincreasingly active both civically and politically in their new community.They registered, voted, campaigned for, sought and won election to officeas Republicans in what was historically a firmly entrenched DemocraticParty stronghold.

The second significant change involved the amendments to the VotingRights Act of 1965. The amendments altered the method by which aminority group could show that a voting practice or procedure, including aredistricting plan, violated its right to fair and equal participationin the electoral process. As noted above, this change in the legalstandard took place at a time of rapid increase in the Hispanic population,particularly in the multicultural population-intense counties of Dade andHillsborough. These factors, coupled with the rise of the Republican Partyin what was traditionally a one-party state, and the enhanced overallconsciousness of minority rights generally, set the stage for 1992'sredistricting efforts dominated by politics, race and ethnicity.The battle lines for the 1992 redistricting effort were drawn alongpolitical, racial and ethnic lines toward a common goal: the exercise ofpolitical power and influence. In addition to the clamor for access to andexercise of political power during this most contentious redistricting cycle,underlying tensions unfortunately surfaced between Blacks and Hispanics, particularlyin Dade County.

Legislative leaders anticipated heightened activity, particularly byminorities during the 1992 legislative session. Reflecting on the 1982experience, the leaders began preparing for the session four years earlier.The House and Senate each hired separate expert technical staffs andprovided them with state-of-the-art computer systems. Reapportionmentcommittees were appointed in 1991 for the House and Senate, and bothchambers hosted 32 public hearings throughout the state betweenSeptember and December, 1991. The purpose of the hearings was toprovide for citizen involvement in the development of aconstitutional redistricting plan, and to educate the public on the subject andits process.

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On January 14, the first day of the 1992 Florida legislative session,Miguel DeGrandy filed a lawsuit in federal court challenging the constitu-tionality of Florida's then-existing congressional and state legislativedistricts. DeGrandy, a Republican member of the Florida House ofRepresentatives from Dade County, joined with party leaders, other Republi-can legislators and voters, in naming as defendants the Speaker of the Houseof Representatives, T. K. Wetherell, the President of the Florida Senate,Gwen Margolis, the Governor, Attorney General, and Secretary of State The Complaint alleged that the then-existing congressional and state districtsviolated both the Equal Protection Clause of the Fourteenth Amendment tothe Federal Constitution and the Voting Rights Act of 1965, as amend-ed.

After preliminary procedural skirmishes, DeGrandy filed a SecondAmended Complaint on March 9th further alleging that the then-existingcongressional and legislative districts violated Article 1, Section 2 of theUnited States Constitution and the "one-person, one-vote" principle, and thatsince the former districts diluted the voting strength of minority voters, theyviolated the Voting Rights Act of 1965, as amended. DeGrandy alsoalleged that the Florida Legislature was at an impasse and therefore unableto act; that the time frame for redistricting set forth in the Florida Constitu-tion, article III, section 16, in light of the preclearance requirements ofSection 5 of the Voting Rights Act, would not provide for sufficient timeto adopt a valid redistricting plan for the State Legislature and that thereforethis provision was unconstitutional; and that the democratic leadership,the Speaker of the House, President of the Senate, and Governor, "intention-ally misused the time lines and procedures found in Article III ... to delaythe redistricting process to the advantage of white (democratic) incumbentsand to the detriment of voters and would-be challengers to those incurn-bents."

On March 13, the Florida Legislature adjourned its regular sessionwithout adopting a state redistricting plan. Two weeks later, the federalcourt established an expedited schedule for adoption of both congressionaland state legislative plans by May 29, 1992, by the court. However, the court's orderdid not prohibit state officials from attempting to enact a redistricting plan. On April 2, the Governor called a special redistricting and apportionmentsession of the Florida Legislature pursuant to article III, section 16(a) of the

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Florida Constitution. Eight days later, the Legislature adopted Senate JointResolution 2G redistricting both houses of the Legislature.

Four days before the Legislature adopted a redistricting plan, thefederal court appointed a special master. On April 7, the court consoli-dated the DeGrandy case with a similar lawsuit filed by the Florida StateConference of the NAACP Branches and other individual African-Americanvoters. The court also granted other persons and entities leave tointervene or act as amicus curiae.

On April 17, the Florida Attorney General submitted Senate JointResolution 2G to the DOJ for preclearance pursuant to Section 5 of theVoting Rights Act. That same day, the three-judge federal courtordered bifurcated hearings on congressional redistricting and stateredistricting plans. Meanwhile, three days after the April 10 legislativeadoption of Senate Joint Resolution 2G, the Florida Attorney Generalpetitioned the Florida Supreme Court for a declaratory judgment determiningthe validity of the joint resolution. Before the Supreme Court, theproponents of the senate joint resolution contended that because the court'sanalysis is directed solely to facial constitutional validity of the legislation,the court could not address the complex evidentiary standard imposed onthose who challenge a redistricting plan under the Voting Rights Act. Opponents of the senate joint resolution, also the intervenors to thefederal court litigation, contended that the Supreme Court could not fulfill itsduty without conducting a time-consuming analysis under the Voting RightsAct-an impossible burden in light of time constraints on campaigning andelections. The opponents further requested that the Court declare thejoint resolution facially invalid. They also argued that the Court shoulddisregard the 30-day requirement of the Florida Constitution redistrictingprovision and refer the case to a judge or master to conduct the necessaryfact-finding analysis contemplated by the Voting Rights Act or withholdruling and defer to the federal court action.

The Supreme Court rejected the view that it could not conduct a VotingRights Act analysis in evaluating the validity of the plan. The Court,while recognizing the impossibility of conducting "the complete factualanalysis contemplated by the Voting Rights Act . . . " neverthelessanalyzed all of the statistical data filed by the parties. This data included

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the breakdown of White, Black, and Hispanic voting-age populations andvoting registrations. The Court then analyzed numerous legislativedistricts contained in Senate Joint Resolution 2G, particularly Hispanic andBlack majority districts, and concluded that the plan was valid. 597 So. 2d 276.However, as in the past, the court retained exclusive jurisdiction to provide "anyinterested person the opportunity to attempt to prove that the JointResolution is invalid through a presentation of evidence in accordance withthe Gingles analysis of the Voting Rights Act." Should such anopportunity be sought, the court provided "for an expedited dispositionthrough the appointment of a commissioner to make findings of fact."The Supreme Court's validation of the plan took place over a vigorousdissent by Chief Justice Shaw, who found the redistricting plan invalidunder the Voting Rights Act.

When considering total population, the legislatively adopted planincluded 13 Black majority population house districts and three Blackinfluence districts in which minority population exceeded 25percent but was less than 50 percent."' The plan also provided for twoBlack majority population senate districts (both in Dade County) and threeBlack influence districts with minority population ranging from 28percent to 49 percent. With regard to Hispanic representation,the court noted that the plan provided for nine majority house districts andseven influence districts, the latter ranging in population from 26percent to 46 percent. The plan created three Hispanic majoritysenate districts. When voting-age population is considered, the jointresolution provided for 11 Black majority and two influence districts inthe House, and two majority and one influence district in the Senate.The Court noted that the 1982 plan contained seven Black housedistricts, seven majority Hispanic districts, "only 1" Black majority senatedistrict and "only 2" Hispanic majority senate districts."' The Court ob-served that the 1992 plan was accomplished with maximum populationdeviations of 1.99 percent in the house districts and 0.87 percent in thesenate districts, and thus concluded "[t]he 1992 plan is a material improve-ment over conditions under the 1982 plan . . . and provides a substantialopportunity for minorities to influence elections and elect representatives oftheir choice."

These findings did not satisfy the objectors, however, who, although

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given the opportunity to press their specific voting rights claims before theSupreme Court, never did. Instead, the objectors engaged in unsuccess-ful efforts to remove the Supreme Court proceedings to federal court andthereby oust that Court of its jurisdiction. The partiesreturned to the Supreme Court only to address the Section 5 objection by theJustice Department. The objectors to the joint resolution wanted to wagetheir fight in federal court to create more minority districts.

The Florida Supreme Court also had occasion to address contiguity forthe second time. Four senate districts were challenged because, as aresult of the lack of roads or the presence of bodies of water withoutconnecting bridges, travel throughout these four districts could not beaccomplished without crossing into another district. The Court held thatthese districts are contiguous because "[c]ontiguity does not impose arequirement of a paved, dry road connecting all parts of a district."The Supreme Court's decision was issued on May 13. On May 27, thefederal court held a hearing on all pending motions, including thosedesigned to set trial on legislative redistricting, as well as those designed tosecure the federal court's deference to the state legislative and judicialreview process. At that hearing, the federal court learned from the DOJthat it probably would issue its preclearance decision by June 17, 1992.On June 16, the DOJ issued its preclearance decision, emphasizing thatits Section 5 review addressed the plans only insofar as the five preclearancecounties (Collier, Hardee, Hendry, Hillsborough and Monroe) wereaffected."' The Attorney General of the United States did not interposeany objections to the redistricting plan for the House of Representatives. The DOJ, however, refused to preclear the Senate Plan stating:

“With regard to the Hillsborough County area, the state has chosen todraw its senatorial districts such that there are no districts in whichminority persons constitute a majority of the voting age population. Toaccomplish this result, the state chose to divide the politically cohesiveminority populations in the Tampa and St. Petersburg areas. Alternativeplans were presented to the legislature uniting the Tampa and St.Petersburg minority populations in order to provide minority voters aneffective opportunity to elect their preferred candidate to the StateSenate.... [T]he information before us, including the economic andother ties between Tampa and St. Petersburg, as well as the political

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cohesiveness of minority voters in those two cities, demonstrates thatthe two areas do share a commonality of interest. Finally, we haveexamined evidence, including evidence in the legislative record, whichsuggests that the state's approach to senatorial redistricting in theHillsborough area was undertaken with an intent to protect incumbents. Such a rationale, of course, cannot justify the treatment of minorityvoters in this area by the State Senate plan.”

At the request of the Attorney General of Florida, the Supreme Courtset an expedited schedule to address the Justice Department's objections tothe Senate plan. In its order of June 17, 1992, the Supreme Courtencouraged the Legislature to adopt a proper plan, taking into considerationthe Justice Department objections. The Supreme Court cautioned thatif the Legislature declared its inability to adopt a plan, or failed to adopt aplan by June 24, 1992, the Court would conclude that the Legislature is atan impasse, in which case the Court would accomplish the task. The Su-preme Court also set out an abbreviated schedule within which redistrictingaction had to be taken. On the following day, House Speaker Wetherelland Senate President Margolis informed the Supreme Court of their decisionnot to convene their respective chambers in an extraordinary apportionmentsession. The Court was also informed that the Governor did not intendto convene the Legislature. As a result, the Supreme Court declared a legislative impasse and adopted an amended schedule.

Meanwhile, plaintiffs in the federal court action, upon notice of the DOJ's refusal to preclear the Senate plan, immediately asked that forum toestablish a scheduling order and set the matter for trial on legislative redistricting, and filed yet another Amended Complaint contending that the joint resolution itself violated Section 2 of the Voting Rights Act.Thus, rather than litigating their Section 2 claims in the Supreme Court pursuant to its retained jurisdiction, objectors to the plan opted for federal court involvement.

Challengers to the plan raised jurisdictional questions both in the Supreme Court and federal court. The Florida Supreme Court, addressingthe questions, said:

“The reapportionment of state legislative bodies is not a power delegated

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by the Constitution of the United States to the federal government.Under the provisions of the Tenth Amendment to the United StatesConstitution, this is a power reserved to states. Of course, this Courtis obligated to apply any applicable federal constitutional provisions andany federal statutes implementing these provisions.

The Florida Constitution places upon this Court the responsibility toreview state legislative reapportionment. Art. III, § 16, Fla. Const.Pursuant to that authority, we approved the original legislative reappor-tionment and retained jurisdiction to entertain subsequent objectionsthereto. Consistent with the provisions of art. III, section 16 of theFlorida Constitution, we believe that it is our obligation to redraw theplan to satisfy the objection of the Justice Department now that theLegislature has declared that it is not going to do so.”

On June 25, the supreme court adopted, as a cure for the portion of the planrejected by the DOJ, a proposal submitted by certain African-Americanparties. 601 So. 2d 543.

Two days before the Supreme Court issued its curative decision, the DOJfiled its own lawsuit in federal court against the State of Florida and severalelected officials, contending that the redistricting plans diluted thevoting strength of African-American and Hispanic citizens in several areasof the state in violation of Section 2 of the Voting Rights Act, and thatthe state's proposed Senate plan for the Hillsborough County area dividesthe politically cohesive minority population in the Tampa and St. Petersburgareas, such as there are no senatorial districts in which minority personsconstitute a majority of the voting age population.

The DOJ's lawsuit was consolidated with DeGrandv's action.DeGrandy was then permitted to amend his Complaint to allege Section 2violations as to Senate Joint Resolution 2G as now modified. On June26, the federal court, one day after the Supreme Court adopted its remedy forthe Justice Department's objection, commenced trial which lasted five days,through July 1. During the trial, the parties entered into a consent decreewith respect to the Escambia County portion of the lawsuit by redrawing theEscambia County house districts to provide for greater African-Americanparticipation. The agreement on Escambia County was reached after the

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court ruled from the bench that the plaintiffs established a prima facie caseon a constitutional violation of intentional discrimination in EscambiaCounty.

On July 1, after testimony and argument had been concluded, the courtruled from the bench that, with respect to the Senate plan, although theplaintiffs demonstrated that a fourth Hispanic district can be drawn in theDade County (South Florida) area, they failed to prove that a fourthHispanic district can be drawn without creating a regressive effect uponAfrican-American voters in the same area. Therefore, the federal courtwas required to give deference to the state policy as expressed in the Floridaplan, Senate Joint Resolution 2G as modified, and ultimately approved bythe Supreme Court.

With respect to the House plan, the federal court took note that theSenate Joint Resolution created thirteen minority-majority districts of whichnine had Hispanic voting-age population supermajority districts and four hadAfrican-American voting age population majority districts. The De-Grandy plan, as modified during the trial, provided for 11 Hispanicsouth Florida districts of supermajority proportion, each containing no lessthan sixty-three percent Hispanic voting age population. The modifiedDeGrandy plan also provided for four African-American districts containing

Black voting-age population percentages of no less than 55 percent.

The federal court concluded that only the modified DeGrandy plan wasacceptable under Section 2 of the Voting Rights Act. By its action, thefederal court thus concluded--contrary to the Supreme Court's view that thejoint resolution represented a significant improvement for minorities over1982-that because four Hispanic senate seats (instead of the Legislature'sthree) and 11 Hispanic house seats (instead of the Legislature's nine)could have been created for the Dade County area, the state plan ipso factoviolates Section 2 of the Voting Rights Act, and the modified DeGrandyplan would be used for the 1993 elections.

Immediately thereafter, the government defendants applied for a stayfrom the United States Supreme Court as to the federal court's decision onthe House plan. Upon application to that Court, the federal district court's

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House plan with respect to Dade County was stayed. Accordingly,when the 1992 elections were held for the Florida Legislature, the planadopted by the Florida Legislature, as modified and approved by thesupreme court, was the plan used for those elections.

The 1992 redistricting enterprise reached its finality when the United States SupremeCourt, in Johnson v. DeGrandy, 512 U. S. 997, 114 S. Ct. 2647, 129 l. Ed 2d 775(1994) found there was no violation of §2 of the Voting Rights Act where minorityvoters formed effective majorities in a number of districts roughly proportional tothe minority voters’ respective shares in the voting age population, even though itmight have been possible to create additional minority voters representing amajority.

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V. Section 2 of the Voting Rights Act of 1965and Single-Member Versus Multi-Member Districts

At this point, a statement concerning the use of multi-member and single-member districts is necessary, especially if the legislative districting plan seeksto employ a combination of single-member and multi-member districts or multi-member districts of varying numbers of members per district.30

This issue arises more particularly in connection with Section 2 of the VotingRights Act of 1965, which has been used to challenge reapportionment andredistricting plans on grounds of racial or ethnic discrimination by diluting thevoting strength of minority populations.

A single-member district plan is the most legally acceptable method ofdistricting and is the easiest to defend in court. In fact, in those cases where courtsdraw the plans, the Supreme Court has indicated that single-member districtsshould be used in the absence of the most compelling necessity. Chapman v. Meier.However, multi-member districts were found in Connor v. Johnson 31 not to be, inand of themselves, violative of the Equal Protection Clause. A plaintiff wouldhave to prove that such districts were violative of the "one person, one vote,"equal population test or that they suffered from other constitutional infirmities,such as built-in racial bias.

InWhite v. Regester, a lower court finding that multi-member districtsoperated to dilute minority votes was affirmed. In two counties in Texas, whichwere multi-member districts, there were high concentrations of Blacks in one andMexican-Americans in the other. The court said that the multi-member districts,combined with (1) a history of racial discrimination in Texas generally; (2) a verypoor history of election of either minority to the state legislature from thecounties; and (3) a Texas rule that a majority vote was required for nomination,operated to deny the minorities "access to the political process." That is, "thepolitical processes leading to nomination and election were not equally open toparticipation by the group in question-that its members had less opportunitythan did other residents in the district to participate in the political processes andelect legislators of their choice." White v. Regester.

In Whitcomb v. Chavis, 32 the Court phrased the "access to the political

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process" test in this way:

“But we have deemed the validity of multi-member district systemsjusticiable, recognizing also that they may be subject to challengewhere the circumstances of a particular case may operate to mini-mize or cancel out the voting strength of racial or political elementsof the voting population.”

There has also been court concern with employing single- and multi-memberdistricts within the same legislative body. The problem, as seen by the courts, isthat the multi-member districts tend to bloc-vote in the session and gain greaterpower than the least populous single-member districts. In Whitcomb v. Chavis, theU. S. Supreme Court pointed out the possibility of inequity in such a system. Onesuch possibility is the mathematical theory that a voter in a multi-member districthas more chances to determine election outcomes than does the voter in asingle-member district. However, the Court noted that this consequence obtainswholly aside from the quality or effectiveness of representation and that thisposition remains a theoretical one. Consequently, the Court affirmed previousrulings that in and of itself, such a system, without additional proof of "real-life"impact on voting power, was acceptable.33

In Fortson v. Dorsey, 34 the U. S. Supreme Court reemphasized that use ofmulti-member districts will not demonstrate discrimination in and of itself; itmust be shown that there was the purpose of minimizing or cancelling the votingstrength of particular racial elements of the voting population. The Court noted,however, that the tendency to minimize or cancel out the voting strength of agroup by the use of multi-member districts is enhanced (1) when the district islarge and elects a substantial proportion of the seats in either house; (2) if bothhouses contain multi-member districts; or (3) if the plan lacks provision forcandidates to reside in subdistricts.

The United States Supreme Court, in City of Mobile v. Bolden, 35 applied theaccess to the political process test and refined it by holding that under Section 2of the Voting Rights Act, a plaintiff must prove that the disputed multi-memberplan was conceived or operated as a purposeful device to further racial dis-crimination. An illicit purpose must be proved before a constitutional violationcan be found. Disproportionate impact alone cannot be decisive, and courts mustlook to other evidence to support a finding of discriminatory purpose. The Court

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in Mobile concluded that the evidence fell far short of showing that the cityconceived or operated a purposeful device to further racial discrimination." Theultimate question remains whether a discriminatory intent has been proved in agiven case.

Mobile wrestled with the question of whether minorities are more effectivelyrepresented in multi-member versus single-member districts but did not arriveat a conclusion as to the basic measure of effective representation of minoritiesagainst which vote dilution can consistently be weighed. Consequently, thequestion of vote dilution in multi-member districts will continue to be decidedon a case-by-case basis.

Multi-member districts are more acceptable to the courts if used statewide.The multi-member district cases have all concerned "mixed plans," where somemulti-member districts were drawn in the context of a statewide plan generallyemploying single-member districts. This selective use seems to have contributedto their suspect treatment by the courts.

The Supreme Court's interpretation of Section 2 in Mobile to require ashowing of intentional discrimination led Congress to amend this section byeliminating this requirement as follows:

“A violation of [section 2] is established if, based on the totalityof the circumstances, it is shown that the political processes leadingto nomination or election in the State or political subdivision arenot equally open to participation by members of a class of citizensprotected by [section 2] in that its members have less opportunitythan other members of the electorate to participate in the politicalprocess and to elect representatives of their choice. The extent towhich members of a protected class have been elected to office inthe State or political subdivision is one circumstance which maybeconsidered: Provided, that nothing in this section establishes a rightto have members of a protected class elected in numbers equal totheir proportion in the population.”

The Section 2 amendments were first considered by the Supreme Court inThornburg v. Gingles, which challenged legislative redistricting plans in NorthCarolina. At issue were one multi-member Senate district, one single-member

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Senate district, and five multi-member House districts. The Court discussed the"objective factors" a court must consider in determining the "totality of thecircumstances" surrounding an alleged violation of Section 2. They included thefollowing:

(1) the extent of the history of official discrimination touching on theclass participation in the democratic process;

(2) racially polarized voting;

(3) the extent to which the state or political subdivision has used un-usually large election districts, majority vote requirements, anti-single-shot provisions, or other voting practices that enhance theopportunity for discrimination;

(4) denial of access to the candidate slating process for members ofthe class;

(5) the extent to which the members of the minority group bear theeffects of discrimination in areas like education, employment andhealth which hinder effective participation;

(6) whether political campaigns have been characterized by racialappeals;

(7) the extent to which members of the protected class have been elected;

(8) whether there is a significant lack of responsiveness -by electedofficials to the particularized needs of the group; and

(9) whether the policy underlying the use of the voting qualification,standard, practice, or procedure is tenuous.

The Court held that a minority group challenging a redistricting plan mustprove at least three things:

(1) that the minority is sufficiently large and geographically compact toconstitute a majority in a single-member district;

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(2) that it is politically cohesive; and

(3) that, in the absence of special circumstances, bloc voting by the whitemajority usually defeats the minority's preferred candidate.

The above demonstrates that, if faced with a Section 2 challenge, it will benecessary to show, by empirical data, what is "reasonable and fair" under the"totality of the circumstances."

The Florida Legislature, therefore, must consider carefully and justify anapportionment plan which allows multi-member and single-member districts forthe same legislative body; the same consideration and justification is necessarywhen multi-member districts of unequal numerical membership are employed.Clearly, the Florida Legislature cannot draw multi-member districts for thepurpose of minimizing or cancelling out the voting strength of any identifi-able group.

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VI. Gerrymandering

Gerrymandering is the drawing of district lines to minimize voting strengthor maximize political advantage. Racial gerrymandering is forbidden by theUnited States Constitution.

In Gaffney v. Cummings, a state offered achievement of "political fairness" asa justification for population variations. This "fairness" was defined as construct-ing districts so that the political makeup of each house was reflective of theproportion of the statewide total vote received by candidates of each major partyin the last general election. This was to be accomplished by creating a certainnumber of "safe" districts for each party and a certain number of "swing"districts. The Supreme Court ruled that, by itself, drawing districts to accomplishthis objective was not violative of equal protection. Furthermore, in White v.Weiser, the Court indicated that drawing districts to further a state interest inavoiding the pairing of incumbents in elections would not invalidate an otherwiseacceptable plan. These decisions appear to indicate that if the major guidelines ofpopulation equality and avoidance of vote dilution are followed, such politicalobjectives are not unconstitutional.

In Davis v. Bandemer, 36 the Supreme Court said political gerrymandering isa justiciable issue, and a plan that discriminates against political parties orpolitical groups may be unconstitutional. To successfully invalidate such a plan,the challenger would have to show the plan (1) would prevent the challengerfrom improving its standing in ensuing elections; (2) consign it to minority statusthroughout the plan's life; and (3) provide it with no hope of improvement in thenext redistricting process.

Any attempt to gerrymander, for racial or political reasons, will invitelitigation. If an objective is to avoid such challenge, it is best to approachdistricting on a nonpartisan basis. Compactly shaped, contiguous districts asrequired by the Florida Constitution will also contribute to this objective.

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VII. Section 5 of the Voting Rights Act of 1965

The Voting Rights Act of 1965 is an attempt by Congress to banish votingdiscrimination once and for all. Even though the Fifteenth Amendment of theConstitution had been intended to accomplish that objective almost 100 yearsearlier, Congress recognized that many states were using "ingenious" means ofdefying that constitutional mandate. Court orders in individual lawsuits weredefied or evaded; in some cases, states would merely switch to a discriminatorytactic not covered by the particular decision.

The 1965 Act was the response of Congress to these evasive state actions.Under the Act, all voting "tests and devices"-any requirement that a registrantor voter:

(1) demonstrate ability to read, write or interpret any matter;or (2) demonstrate any educational achievement or knowledge ofa particular subject; or (3) possess good moral character; or (4) provequalification by voucher of other registered voters were automatically suspended instates or subdivisions where such tests were in effect on November 11, 1961, andwhen less than 50 percent of the voting age population of a covered groupwas registered for or voted in the 1964 presidential election.

42 U.S.C. Section 1973(b)

Under Section 5, any new voting procedure (instituted after November 11,1964) would be frozen until "precleared"-that is, until a judgment was obtainedfrom the United States District Court for the District of Columbia that the newprocedure would not have the purpose or effect of denying or abridging the rightto vote of the racial or minority language group. 'Preclearance" could also beaccomplished by submission of the proposed change to the Attorney General ofthe United States for the same determination. The Act also gave the AttorneyGeneral the authority to appoint federal examiners to list eligible voters in thecovered jurisdiction, as well as to appoint observers to oversee the casting andcounting of ballots.

Section 5 of the Act has been amended twice since 1965-in 1970 and 1975.Originally, the Act pertained to the states of Alabama, Alaska, Georgia,

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in Louisiana, Mississippi, South Carolina and Virginia and to certain counties inNorth Carolina, Arizona, Hawaii and Idaho. The 1970 amendments extendedcoverage of the Act until 1975 and brought counties in New York, Wyoming,California; four election districts in Alaska; and towns in Connecticut, NewHampshire, Maine and Massachusetts under the purview of the Act.

Five counties in Florida (Collier, Hardee, Hendry, Hillsborough andMonroe) were brought under the Act by the 1975 amendments, following adetermination by Congress that the Act would be expanded to protect, not onlyagainst racial discrimination in voting, but against discrimination affecting thosevoters with a dominant language other than English. This expansion was ac-complished by the inclusion in the definition of "test or device" of the use ofEnglish-only election materials in jurisdictions where more than five percent ofthe voting age population is a single-language minority group and where lessthan 50 percent of the voting age population of that group was registered for or votedin the 1972 presidential election. Coverage of these five counties means that anychange in voting procedure after November 1, 1972, which affects the five countiesmust be precleared under Section 5 either through the United States District Courtfor the District of Columbia or the U. S. Attorney General. 37 Redistricting has beenheld by the U. S. Supreme Court to be a voting procedure which must beprecleared as described above. Allen v. State Board of Elections; 38 Georgia v.United States. 39 Therefore, the redistricting plans for Congressional and statelegislative seats, as they pertain to the five affected counties, will be required to passthe preclearance procedure before they become effective. (Previous U.S. AttorneysGeneral have indicated that while it is not required for Florida to submit the entireplans, clearance as to those covered counties will be expedited if the entire plans aresubmitted.)

In South Carolina v. Katzenbach, the Voting Rights Act was determined to bea constitutional exercise of Congress"s power to enforce the FifteenthAmendment. The formula for determining which jurisdictions would be covered(1. use of tests and devices, and 2. low voter registration and turnout) was heldvalid because of the long history in the states of using tests and devices todiscriminate, and discrimination in voting as reflected by low voter registrationand turnout. The provision for review of new voting procedures, though recog-nized as stringent, was upheld because of the widespread practice of merelyintroducing new discriminatory devices as soon as the old ones were judiciallyinvalidated. The Court has consistently refused to reconsider the constitutional

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issue since this decision.

Litigation concerning the Act since Katzenbach has centered around objec-tions to state-proposed voting procedure changes made by either the AttorneyGeneral or the United States District Court, District of Columbia, following thereview required by Section 5. In 1973, the State of Georgia attempted to establishthat new redistricting plans were not "procedures" subject to review. Georgia v.United States. The Court rejected this, saying that such extensive reorganizationof districts amounts to a substantial change from the state of things underprevious law. Section 5 was held to reach any change with the potential of dilutingminority voting power.

In City of Richmond v. United States, 40 the Court found that reducing thepercentage of the minority population in a city through annexation does notalways "deny or abridge" the right to vote of that minority. However, when anannexation plan reduces a minority group's relative political strength, the plancan be approved only on the condition that certain modifications, calculated toneutralize to the extent possible any adverse effect on the political participationof the minority group, are adopted. That is, the minority group representationmust be reasonably equivalent to their political strength in the enlarged commu-nity. As long as this is accomplished, the Court will not hold that the effect of theannexation is to deny or abridge the right to vote. In Richmond, the Courtconcluded that switching from an at-large system of elections to a ward systemfairly reflected the new minority proportion of the population, and neutralized,to the extent possible any adverse effect upon the political participation of theminority group. Consequently, the court reasoned that their right to vote was notabridged or denied.

The Richmond decision, as applied to Florida reapportionment, means thatshould the relative population of minority-language persons in the five affectedcounties be reduced in the new districts (as opposed to their relative populationin the old), the Florida Legislature must neutralize, to the extent possible, anyadverse effect on the political participation of those voters. This requires that theminority groups be afforded representation reasonably equivalent to their polit-ical strength in the new district.

Beer v. United States 41 established a standard for determining when a reap-portionment plan has the forbidden effect of denying or abridging the right to

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vote. The Court ruled that, in view of the Section 5 goal to ensure that no newprocedure would be instituted that would lead to retrogression in the position ofminorities regarding voting, any reapportionment plan which enhanced thatposition could not have the effect of diluting or abridging the right to vote, eventhough the lower court had found that there had been better plans available thanthe one eventually upheld. This seems to indicate that if a challenged plan, thoughnot the best that could have been chosen, improves minority voting strength fromits pre-plan state, it will not be overturned on a challenge based on dilution ofvoting strength alone.

In United Jewish Organization v. Carey, 42 the U.S. Attorney General objectedto the state's proposed reapportionment plan based on dilution of minorityvoting strength and the state's failure to affirmatively demonstrate that the planhad neither the purpose nor effect of abridging the right to vote because of raceor color.

To overcome this objection, the state developed a plan to increase, not thenumber of minority districts, but the percentage of minority population in thosedistricts to 65 percent of the total population. This figure, the state determined,would give the district enough registered minority voters so that the minoritywould have an opportunity to elect a candidate of its choice. In redrawingdistricts to accomplish this result, a group of Jewish voters, heretofore in onedistrict, was split between two. They alleged dilution of their political effective-ness solely to achieve a racial quota.

The Court responded that previous decisions established that a state couldrevise its reapportionment plan following a Section 5 objection by increasing thepercentage of minority voters in a particular district until a clear majority results.Beer v. United States; City of Richmond v. United States. How substantial themajorities had to be was left open; the states will arrive at their own figures.Specific numerical quotas designed to give minority voters an opportunity toelect a candidate of their choice and to gain approval under Section 5 was heldnot to violate the Constitution. Thus racial criteria and quotas can be used by astate in attempting to comply with Section 5 and to secure the Attorney General'sapproval of its reapportionment plan.

In City of Rome v. United States, 43 the Attorney General determined that thecity's history of racial-bloc voting, when considered in conjunction with its

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proposed changes (requirement of majority rather than plurality to win; reduc-tion in number of wards from nine to three, with three commissioners in each)meant that the plan would be depriving voters of the opportunity to elect thecandidate of their choice. For example, in a plurality system, if the field ofcandidates included several whites and one minority, the bloc white vote wouldbe split among the several white candidates; the minority voters could all votefor the one minority candidate, giving him a good change to win. In a majoritysystem, the minority candidate would probably have to face a white candidateone-on-one in a runoff, and given bloc voting, would have little chance to win.The Attorney General objected to the proposed changes for that reason.

In reviewing and sustaining the objection, the Supreme Court held that bothpurpose and effect of abridging a minority's right to vote must be found missingfrom a plan before it will be approved.

In Reno v. Bossier Parish School Board, 44 the Court held that preclearance cannotbe denied solely on the basis for which a §2 vote dilution claim may lie. In otherwords, §2 and §5 of the Voting Rights Act serve different functions, and theviolation of one does not automatically constitute a violation of the other. And inReno v. Bossier Parish School Board’s second appearance, 44 the Court further heldthat preclearance is not precluded for a redistricting plan enacted with adiscriminatory but nonretrogressive purpose.

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VIII. Federal Regulations

The following summarizes pertinent provisions of the Code of FederalRegulations (CFR) promulgated by the U. S. Attorney General regarding Section5 submissions which have significance for Florida.

Initially, 28 CFR Section 51.1 provides that no enforcement of any procedurewith respect to voting different than that in effect on November 1, 1972, may behad until (1) a declaratory judgment is obtained from the United States DistrictCourt for the District of Columbia, or (2) until the change is submitted to theAttorney General and he does not object within 60 days (Section 51.10 makes itunlawful to so enforce). Reapportionment is such a procedure.

The state's chief legal officer, another appropriate official or any authorizedperson is responsible for making the submission (Section 51.23) in written form(Section 51.20) as soon as possible after passage (Section 51.21).

According to Section 51.27, the submission must include the following.

1. Copy of enactment embodying change;

2. If the change is not readily apparent from the copy showing thechange, a clear statement explaining the difference between the priorlaw and the change, or explanatory materials disclosing thedifference;

3. Name, title, address and phone number of person submitting;

4. Name of submitting authority;

5. Identification of body making the decision and the mode of decision;

6. Identification of lawful authority under which the change was made;

7. Description of procedures required to be followed in deciding tomake the change;

8. Date of adoption;

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9. Date effective;

10. Statement that change has not yet been enforced or why such astatement cannot be made;

11. Reasons for change

12. Statement of anticipated effect of change on language minoritygroups [American, Indian, Asian, Alaskan, of Spanish heritage-Section 51.21;

13. Statement identifying any litigation concerning the change;

14. Statement as to any preclearance history directed to the change; and, for redistricting,

15. Demographic information (total and voting age population beforeand after the change), race and language group; and

16. Maps of the prior and new boundaries.

Optional but helpful contents are listed in Section 51.2:

1. Demographic information:

a. Number of registered voters by language and racial groupfor affected area by voting precinct currently and projectedafter change;

b. Any population estimates made in connection with the change.

2. Maps-for any redistricting, in duplicate, of the followinginformation:

a. Prior and new bounds of precincts;

b. Location of language minority groups;

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c. Natural bounds of geographic features that influenced selectionof new bounds;

d. Location of prior and new polling places;

e. Location of prior and new voter registration sites.

3. Election Returns-where change may affect electoral influence oflanguage minority group, returns of primary and general electionsconducted by or in covered jurisdiction, including:

a. Name of each candidate;

b. His/her language group, if known;

c. Position sought;

d. Number of votes each received, by precinct

e. Outcome;

f. Number of registered voters by language group for eachprecinct for which returns are furnished.

4. Publicity and Participation-evidence of public notice; opportunityto be heard, for interested parties to participate in decision:

a. Newspaper articles;

b. Copies of public notice describing the change and invitingcomment and participation;

c. Minutes of public hearings;

d. Statements, speeches, etc.;

e. Copies of comments from the public;

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f. Excerpts from legislative journals of discussion of change orother matters relevant to legislative purpose.

The Attorney General has 60 days from receipt of the submission to file anyobjection, not counting the day it is received (Section5l.9). If the Attorney Generalis not satisfied with the submission, he may request further information and the60 days will not begin to run until it has been received (Section 51.37). If thesubmitting authority wishes to send later information, the time will also beginagain, from its receipt by the Attorney General (Section 51.39). The state has 60days to respond, and if it does not, the Attorney General may object to thechange (Section 51.40).

The U.S. Attorney General will review any change (new plan) to determineif it has the purpose or will have the effect of denying or abridging the right tovote on account of membershi