Redistricting Legal Standards and Connecticut’s Latino Community 2011

Redistricting Legal StandardsRedistricting Legal Standardsand and

Connecticut’s Latino Community 2011Connecticut’s Latino Community 2011

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One Person, One VoteOne Person, One Vote

Constitutional Requirement to Equalize All Constitutional Requirement to Equalize All Representative Districts Based On CensusRepresentative Districts Based On Census

Failure To Do So Debases, Renders Failure To Do So Debases, Renders Ineffective The Votes In Over-populous Ineffective The Votes In Over-populous DistrictsDistricts

Formula: Ideal Population = Tot. Formula: Ideal Population = Tot. Population Divided by # of DistrictsPopulation Divided by # of Districts

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One Person, One Vote ExampleOne Person, One Vote Example

Tot. Population = 1,000Tot. Population = 1,000 # Of Districts = 10# Of Districts = 10 Ideal Population = 100Ideal Population = 100 Smallest District = 95 or a 5% VarianceSmallest District = 95 or a 5% Variance Largest District = 120 or a 20% VarianceLargest District = 120 or a 20% Variance Total Variance = 25% (25 People Off of Total Variance = 25% (25 People Off of

Ideal PopulationIdeal Population

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One Person, One Vote One Person, One Vote Permissible DeviationsPermissible Deviations

Congressional: As mathematically equal as Congressional: As mathematically equal as possible. possible. Karcher v. DaggetKarcher v. Dagget (1983): even a (1983): even a 0.7% total variance is unconstitutional 0.7% total variance is unconstitutional where a lesser variance (0.45%) was where a lesser variance (0.45%) was presented and state interests not justified.presented and state interests not justified.

In Congressional Redistricting the Supreme In Congressional Redistricting the Supreme Court ruled there are no Court ruled there are no de minimusde minimus population variances that can be avoided population variances that can be avoided without justificationwithout justification

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One Person, One Vote One Person, One Vote Permissible Deviations (cont.)Permissible Deviations (cont.)

State & Local Redistricting: 16.4% Approaches State & Local Redistricting: 16.4% Approaches the Limits of Tolerable Deviations. the Limits of Tolerable Deviations. Mahan v. Mahan v. HowellHowell (1973) (1973)

Rule of Thumb: 10% Rule. Total Deviations Rule of Thumb: 10% Rule. Total Deviations >10% Always Requires Justification>10% Always Requires Justification

NY: NY: Rodriguez v. Pataki Rodriguez v. Pataki (2002). Even where (2002). Even where Senate districts downstate were overpopulated vs. Senate districts downstate were overpopulated vs. under-populated upstate districts, no violation as under-populated upstate districts, no violation as long as within maximum population deviation.long as within maximum population deviation.

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One Person, One Vote One Person, One Vote Citizenship Voting PopulationCitizenship Voting Population

Lepak v. City of Irving, TXLepak v. City of Irving, TX (Feb 2011) where (Feb 2011) where CVAP in one of 6 districts is half of CVAP in CVAP in one of 6 districts is half of CVAP in others, is City of Irving permitted to draw districts others, is City of Irving permitted to draw districts based on equal population vs. equal numbers of based on equal population vs. equal numbers of voters?voters?

Following Following ChenChen in 5 in 5thth Circuit, Circuit, GarzaGarza in 9 in 9thth, , DalyDaly in in 44thth Court ruled that it will not intervene in the Court ruled that it will not intervene in the political process b/c choice of using Total political process b/c choice of using Total Population or CVAP is left to legislature to Population or CVAP is left to legislature to decide, thus Total Population is permissible.decide, thus Total Population is permissible.

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One Person, One Vote One Person, One Vote Citizenship Voting PopulationCitizenship Voting Population

ACS 2005-2009 Data accessible ACS 2005-2009 Data accessible nownow. Margin of . Margin of Error > w/ lower geography. No match to 2010.Error > w/ lower geography. No match to 2010.

72.4% of all Latinos are citizens (272.4% of all Latinos are citizens (2ndnd Lowest); Lowest); 65.3% of all Latinos are of voting age (Lowest); 65.3% of all Latinos are of voting age (Lowest); 40.7% of all Latinos are CVAP (Lowest).40.7% of all Latinos are CVAP (Lowest).

CA: 60.3% CVAP. TX: 66.5% CVAP. FL: 63.8% CA: 60.3% CVAP. TX: 66.5% CVAP. FL: 63.8% CVAP. NY: 67.3% CVAP. IL: 58.1% CVAPCVAP. NY: 67.3% CVAP. IL: 58.1% CVAP

NYC: 67.5% CVAP. LA: 48.6% CVAP. Houston: NYC: 67.5% CVAP. LA: 48.6% CVAP. Houston: 47.3% CVAP. San Antonio: 84.6% CVAP. 47.3% CVAP. San Antonio: 84.6% CVAP. Chicago: 60% CVAP.Chicago: 60% CVAP.

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One Person, One Vote One Person, One Vote Prison PopulationsPrison Populations

New York, Delaware, Maryland are planning to New York, Delaware, Maryland are planning to count prisoners in home districts, not where count prisoners in home districts, not where prisons are located, at least for state/local prisons are located, at least for state/local redistricting.redistricting.

Major victory in civil rights/voting rights struggleMajor victory in civil rights/voting rights struggle Prison counts an issue in virtually every urban Prison counts an issue in virtually every urban

state.state. Resource: www.prisonersofthecensus.orgResource: www.prisonersofthecensus.org

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Section 2: Three Section 2: Three GinglesGingles Prongs (1986) Prongs (1986) Totality of Circumstances Totality of Circumstances (Senate (Senate

Factors)Factors) ShawShaw Claims (1993) Claims (1993)

FederalFederalVoting Rights Act (VRA)Voting Rights Act (VRA)

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Section 2:Section 2:Three Three GinglesGingles Prongs Prongs (1986) (1986)

Is minority group Is minority group large enoughlarge enough and and geographically compactgeographically compact to constitute to constitute a majority in a single member district? a majority in a single member district?

Is minority group Is minority group politically cohesivepolitically cohesive??

Does white majority vote Does white majority vote as a blocas a bloc to to defeat the minority preferred defeat the minority preferred candidate? candidate?

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Section 2:Section 2:Three Three GinglesGingles Prongs Prongs (1986) (1986)

Underlying Section 2 Standard:Underlying Section 2 Standard:

– The “totality of circumstances” – does the The “totality of circumstances” – does the minority group have less opportunity than minority group have less opportunity than whites to participate and elect candidates of whites to participate and elect candidates of their choice?their choice?

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The Senate FactorsThe Senate FactorsUnder Section 2Under Section 2 (1982) (1982)

History of official discrimination History of official discrimination in the area of votingin the area of voting

Racially polarized votingRacially polarized voting History of discrimination in education, History of discrimination in education,

employment, health, housing, etc.employment, health, housing, etc. Discriminatory slating processDiscriminatory slating process

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The Senate FactorsThe Senate Factors (cont.)(cont.)

Overt or subtle racial appeals in political Overt or subtle racial appeals in political campaignscampaigns

Extent of election of minorities to public Extent of election of minorities to public officeoffice

Significant lack of responsiveness by Significant lack of responsiveness by elected officials to minority needselected officials to minority needs

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Shaw ClaimsShaw Claims (1993) (1993)

Predominant use of race in Predominant use of race in redistricting is unconstitutionalredistricting is unconstitutional

Scrutiny of:Scrutiny of:– District shape and demographicsDistrict shape and demographics

– Statements by Legislators and staffStatements by Legislators and staff– Nature of data used in redistrictingNature of data used in redistricting

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Shaw ClaimsShaw Claims (cont.)(cont.)

Yet States can intentionally create Yet States can intentionally create majority minority districts and majority minority districts and otherwise take race into account, otherwise take race into account, without strict scrutiny, as long as without strict scrutiny, as long as traditional redistricting criteria are traditional redistricting criteria are not subordinatednot subordinated (Justice O’Connor, (Justice O’Connor, Bush v. VeraBush v. Vera, 1996), 1996)

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Shaw ClaimsShaw Claims (cont.)(cont.) Traditional districting practices:Traditional districting practices:

– CompactnessCompactness

– ContiguityContiguity– Respect for political subdivisionsRespect for political subdivisions

– Protecting IncumbentsProtecting Incumbents Respect for “communities defined by Respect for “communities defined by

actual shared interests”actual shared interests”

– FLFL: : Lawyer v. DOJLawyer v. DOJ: Senate Dist. In Tampa Bay In : Senate Dist. In Tampa Bay In ShawShaw Challenge. Settled. Low Income Residents of Dist. Regarded by Challenge. Settled. Low Income Residents of Dist. Regarded by Court as Community of Interest. Court as Community of Interest. NYNY: : Diaz v. SilverDiaz v. Silver Latinos Not. Latinos Not. Asians Are. Black Maybe Not.Asians Are. Black Maybe Not.

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Section 2:Section 2:GinglesGingles One One

Is minority group Is minority group large enoughlarge enough and and geographically compactgeographically compact to constitute a to constitute a majority in a single member district? majority in a single member district? – CITIZENSHIP VAPCITIZENSHIP VAP: : Negron v. MiamiNegron v. Miami (11 (11thth Cir. 1997); Cir. 1997);

King v. Bd. Of ElectionsKing v. Bd. Of Elections (7 (7thth Cir. Chicago). Cir. Chicago). Are Crossover Districts Required?Are Crossover Districts Required?

– No. No. Bartlett v. Strickland Bartlett v. Strickland (2009). A 39% Black district (2009). A 39% Black district created to comply w/ VRA that violated N.Carolina law created to comply w/ VRA that violated N.Carolina law prohibiting crossing County lines not prohibiting crossing County lines not requiredrequired under under Section 2. Blacks must = 50% of single member Dist.Section 2. Blacks must = 50% of single member Dist.

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Section 2:Section 2:GinglesGingles One One

Are Coalition Districts Required? Are Coalition Districts Required? – Minority Voters, collectively, must satisfy all Gingles Minority Voters, collectively, must satisfy all Gingles

requirements to have a chance at a Coalition District. requirements to have a chance at a Coalition District. Support found in lower courts in Connecticut, Texas, Support found in lower courts in Connecticut, Texas, CaliforniaCalifornia

– Caveat: Caveat: Supreme Court has yet to directly decide viability Supreme Court has yet to directly decide viability of Coalition Districtsof Coalition Districts

Are Influence Districts Required?Are Influence Districts Required?

– Section 5: Section 5: Georgia v. Ashcroft Georgia v. Ashcroft & 2006 VRA fix: “ability to & 2006 VRA fix: “ability to elect” is the standard.elect” is the standard.

– Section 2: Section 2: Page v. Bartels Page v. Bartels (D-NJ 2001). “Packing” v. (D-NJ 2001). “Packing” v. “Unpacking” where “Unpacking” wins.“Unpacking” where “Unpacking” wins.

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Section 2:Section 2:GinglesGingles Two Two

Is minority group Is minority group politically cohesivepolitically cohesive??

– CACA: : Gomez v. WatsonvilleGomez v. Watsonville: Cohesion : Cohesion Limited to Voting Patterns. But Limited to Voting Patterns. But COCO: : Sanchez v. BondSanchez v. Bond: Lay Evid. Shows Latinos : Lay Evid. Shows Latinos Don’t Share Political ObjectivesDon’t Share Political Objectives

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Section 2:Section 2:GinglesGingles Three Three

Does white majority vote Does white majority vote as a blocas a bloc to defeat to defeat the minority preferred candidate? the minority preferred candidate? -- -- Page v. BartelsPage v. Bartels Significant levels of white & Significant levels of white & Latino crossover votes enabled Blacks to win in Latino crossover votes enabled Blacks to win in disrtricts w/ <30% Black VAP. Influence Disricts disrtricts w/ <30% Black VAP. Influence Disricts will “enhance & expand” opportunities for Blacks & will “enhance & expand” opportunities for Blacks & Hispanics to participate, in light of “significant Hispanics to participate, in light of “significant proof” that Blacks & Latinos vote as a bloc. proof” that Blacks & Latinos vote as a bloc. Missing? Latino RPV analysis. Missing? Analysis Missing? Latino RPV analysis. Missing? Analysis of Power of Incumbency.of Power of Incumbency.

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Section 2:Section 2:Totality of CircumstancesTotality of Circumstances

Underlying Section 2 Standard:Underlying Section 2 Standard:

– The “totality of circumstances” – does the The “totality of circumstances” – does the minority group have less opportunity than minority group have less opportunity than whites to participate and elect candidates of whites to participate and elect candidates of their choice?their choice?

» FL: FL: Johnson v. DeGrandyJohnson v. DeGrandy (SCOTUS) No Dilution Where Latinos = (SCOTUS) No Dilution Where Latinos = Voting Majorities in # of Dist. Proportional To Share of Pop. Voting Majorities in # of Dist. Proportional To Share of Pop. Proportionality Need Not Be Considered On Statewide Basis – Here Proportionality Need Not Be Considered On Statewide Basis – Here Dade County had 50% Latino VAP and of 5 Senate Seats 3 Were Dade County had 50% Latino VAP and of 5 Senate Seats 3 Were Latino. Of 17 House Seats, 9 Were Latino.Latino. Of 17 House Seats, 9 Were Latino.

» NY: NY: Rodriguez v. Pataki (2002)Rodriguez v. Pataki (2002): Challenge to Bx. County Senate seats : Challenge to Bx. County Senate seats rejected b/c Bronx Latinos were proportionately represented in NYS rejected b/c Bronx Latinos were proportionately represented in NYS Senate.Senate.

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Section 2:Section 2:Totality of Circumstances Totality of Circumstances (cont)(cont)

LULAC v. Perry LULAC v. Perry (2006):(2006):

– To protect incumbency of Republican Henry Bonilla, To protect incumbency of Republican Henry Bonilla, who didn’t enjoy Latino support, Texas dismantled an who didn’t enjoy Latino support, Texas dismantled an emerging Latino majority district and replaced it with emerging Latino majority district and replaced it with a “trade off” district stretching from San Antonio to a “trade off” district stretching from San Antonio to El Paso. Court rules that promoting traditional El Paso. Court rules that promoting traditional redistricting criteria is not excuse for diluting redistricting criteria is not excuse for diluting minority voting strength.minority voting strength.

Debate on Majority Minority DistrictsDebate on Majority Minority Districts: Do they enhance : Do they enhance Latino Turnout/Participation? Do they limit Latino Latino Turnout/Participation? Do they limit Latino power? Is Substantive Representation Sufficient?power? Is Substantive Representation Sufficient?

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Consider: Consider: Proportional RepresentationProportional Representation

Cumulative Voting; Limited Voting; Preference Cumulative Voting; Limited Voting; Preference VotingVoting

Usually as Remedy to VRA challenge to Multi-Usually as Remedy to VRA challenge to Multi-member Districtsmember Districts

Port Chester, NY. Court Orders CV. Latino Port Chester, NY. Court Orders CV. Latino Voters Rated CV > positively and Plumped their Voters Rated CV > positively and Plumped their Votes >often. Luis Marino electedVotes >often. Luis Marino elected

Illinois – CV as RemedyIllinois – CV as Remedy Alabama: 2 cases w/ CV as Settlement Alabama: 2 cases w/ CV as Settlement

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Consider: Consider: State VRAState VRA

California State Voting Rights Act as ModelCalifornia State Voting Rights Act as Model Restricts At-large, Multimember SystemsRestricts At-large, Multimember Systems Provides protections and remedies beyond Provides protections and remedies beyond

VRAVRA NY: Assemblyman Peter Rivera proposed NY: Assemblyman Peter Rivera proposed

bill to outlaw all At-large districtsbill to outlaw all At-large districts Resource: Joaquin Avila: National Voting Resource: Joaquin Avila: National Voting

Rights Advocacy Initiative @ Seattle Univ Rights Advocacy Initiative @ Seattle Univ Law School, [email protected] School, [email protected]

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Consider: Consider: Non-Citizen VotingNon-Citizen Voting

Impossible to debate Latino voting Impossible to debate Latino voting strength without itstrength without it

Usually limited to local municipal / school Usually limited to local municipal / school board electionsboard elections

Tacoma Park, MD; Cambridge, MA; Tacoma Park, MD; Cambridge, MA; Chicago School Board electionsChicago School Board elections

NYC: had it, lost it. Now City Council BillNYC: had it, lost it. Now City Council Bill Proposed in Brookline, MA as recently as Proposed in Brookline, MA as recently as

Sept. 2010Sept. 201025

ConnecticutConnecticut

151 plus 36. 8/151 and 0/36. 13%. Yet 151 plus 36. 8/151 and 0/36. 13%. Yet VRA shuns ProportionalityVRA shuns Proportionality

No Latino State Senator, similar to NJNo Latino State Senator, similar to NJ Significant Latino Growth – 50%. 66% Significant Latino Growth – 50%. 66%

Latino VAP. CVAP? Puerto Rican growth Latino VAP. CVAP? Puerto Rican growth significant @ 30%. Dominican?significant @ 30%. Dominican?

Big Picture: 493,000Big Picture: 493,00026

For further informationFor further informationJuan CartagenaJuan Cartagena

President & General CounselPresident & General CounselLatinoJustice PRLDEFLatinoJustice PRLDEF

99 Hudson St. 1499 Hudson St. 14thth Fl. Fl.New York, NY 10013New York, NY 10013

(212) 219-3360(212) [email protected]@latinojustice.org

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