The Ten Most Important Things You Need to Know About Redistricting (Updated)

Originally drafted by Michael Crowell
Updated October 2010 by Adam Mitchell and Deborah Stagner

1. One-person/one-vote applies to any board that uses districts for electing members.

One-person/one-vote applies to local governments that use election districts, i.e., that restrict voting for one or more seats to citizens who live in a particular district. Avery v. Midland County, 390 US 474 (1968).

Although it is difficult to maintain up-to-date information, it appears that the following boards use election districts to elect some or all members:

Board of County Commissioners: Anson, Bladen, Camden, Carteret, Caswell, Chowan, Columbus, Craven, Cumberland, Duplin, Edgecombe, Forsyth, Granville, Guilford, Halifax, Harnett, Lee, Lenoir, Mecklenburg, Montgomery, Nash, Pamlico, Pasquotank, Pitt, Robeson, Sampson, Vance, Washington, Wayne, Wilson.

School Boards: Alexander, Anson, Beaufort, Bladen, Caswell, Charlotte-Mecklenburg, Cumberland, Duplin, Durham, Edenton-Chowan, Edgecombe, Franklin, Granville, Guilford, Harnett, Hickory City, Iredell-Statesville, Lenoir, Madison, Martin, Montgomery, Nash-Rocky Mount, Newton-Conover City, Pamlico, Pitt, Robeson, Rockingham, Union, Vance, Wake, Wilson, Winston-Salem. Cities: Ahoskie, Albemarle, Benson, Cary, Charlotte, Clinton, Dunn, Edenton, Elizabeth City, Enfield, Fayetteville, Fremont, Goldsboro, Greensboro, Greenville, Henderson, High Point, Jacksonville, Kings Mountain, Lake Waccamaw, Laurinburg, Lexington, Longview, Lumberton, Mooresville, New Bern, Plymouth, Princeville, Raleigh, Reidsville, Roanoke Rapids, Rocky Mount, Saint Pauls, Siler City, Smithfield, Statesville, Tarboro, Thomasville, Williamston, Wilson, Winston-Salem.

2. One-person/one-vote does not apply to residency districts, i.e., when candidates are required to reside in particular districts but still run at large.

Dusch v. Davis, 389 US 112 (1967); Dallas County, Alabama v. Reese, 421 US 477 (1975).

3. The data needed for redistricting will be available next spring.

Apportionment is based on total census population according to the most recent federal census. Reynolds v. Sims, 377 US 533 (1964). Military personnel are included. Davis v. Mann, 377 US 678 (1964). Nonresident aliens should be excluded. WMCA, Inc. v. Lomenzo, 377 US 633 (1964). The 2010 census was taken in April 2010. Total state population data will be reported by 12/31/10. The data needed for redistricting – “P.L. 94-171 data” showing the number of people by race by census block – is supposed to be provided by the Census Bureau by 4/1/11.

4. The board is responsible for drawing the new district lines.

GS 153A-23(b) authorizes boards of county commissioners to draw new election districts after each federal census, if needed to comply with one-person/one-vote. GS 115C-37(i) contains the same authorization for school boards, and GS 160A-23.1 for city councils. None of those statutes otherwise say anything about the procedure to be followed, except that a board of commissioners must make a finding that there is a “substantial inequality” in population among existing districts. For county commissioners, school boards and city councils, the new lines may be set by adoption of a resolution. City councils also have the option of putting the new districts in the form of an ordinance, and should use that form if that is how present districts are defined. None of the boards are required to hold public hearings, but it is advisable to do so.

5. The rule of thumb for local government apportionment is an overall population deviation of no more than ten percent.

Election districts do not have to be absolutely equal in population. The accepted rule for local governments is that there should be no more than a ten percent difference between the most and least populous districts. White v. Regester, 412 US 755 (1973); Gaffney v. Cummings, 412 US 735 (1973). Remember that if the 2010 census shows that the existing districts already are within the ten percent overall deviation range, there is no need to redistrict.

6. Districts must not be drawn to discriminate against minority voters and thereby deny them an equal opportunity to elect candidates of their choice.

The Fifteenth Amendment prohibits the drawing of election districts for the purpose of discriminating against minorities. Section 2 of the federal Voting Rights Act prohibits any election method which has the effect of denying minority voters an equal opportunity to elect candidates of their choice. 42 USC § 1973; Thornburg v. Gingles, 478 US 30 (1986). The requirements of Section 2 have been complicated significantly by the Shaw line of cases on racial gerrymandering, however (see below).

7. If the board is located in one of the 40 counties in North Carolina covered by Section 5 of the Voting Rights Act, the redistricting plan must be precleared by the United States Attorney General before it may be used.

The counties subject to the preclearance requirement are: Anson, Beaufort, Bertie, Bladen, Camden, Caswell, Chowan, Cleveland, Craven, Cumberland, Edgecombe, Franklin, Gaston, Gates, Granville, Greene, Guilford, Halifax, Harnett, Hertford, Hoke, Jackson, Lee, Lenoir, Martin, Nash, Northampton, Onslow, Pasquotank, Perquimans, Person, Pitt, Robeson, Rockingham, Scotland, Union, Vance, Washington, Wayne, Wilson.

The test for preclearance is whether the redistricting plan is retrogressive, i.e., whether it makes it harder than before for minority voters to elect candidates of their choice. Beer v. United States, 425 US 130 (1976); City of Lockhart v. United States, 460 US 125 (1983).

Remember that a redistricting plan also may be precleared by the United States District Court for the District of Columbia. This option is available even if the Attorney General has denied preclearance. Also remember that counties covered by Section 5 should consider whether to seek to remove themselves from the preclearance requirement through the “bail-out” provisions of 42 USC § 1973b. Recently, the United States Supreme Court handed down an important ruling related to the “bail-out” provision. While the Court declined to strike down Section 5 as unconstitutional, the Court held that no longer must a whole county bail-out. Now, any political subdivision subject to Section 5 may seek to bail out. Northwest Austin Utility District #1 v. Holder, 557 U.S. ___ (2009).

8. If the board uses partisan elections, the districts may not be drawn to effectively shut out one political party.

All boards of county commissioners use partisan elections, and some city councils do, but most school boards do not. The rule against partisan gerrymanders was set by Davis v. Bandemer, 478 US 109 (1986), but has generated hardly any cases.

9. Racial gerrymandering is unconstitutional unless justified by a compelling state interest.

This is the other half of the “damned if you do, damned if you don’t” equation created by the conflict between the requirement of the Voting Rights Act to provide opportunities for minority representation and the constitutional suspicion of racial classifications.

Shaw v. Reno, 509 US 630 (1993) (Shaw I), held that all laws classifying citizens by race are constitutionally suspect and are subject to strict scrutiny. When race is the predominate motivation in drawing election districts, the state must show a compelling reason for doing so. The highly irregular shape of a district may be used to show that race was the principal motivation. Compliance with Section 2 of the Voting Rights Act may be a compelling reason for racially gerrymandering election districts, but Section 2 does not require creation of the maximum number of majority black districts possible, nor does it require the creation of districts that are not geographically compact. Johnson v. DeGrandy, 512 US 997 (1994).

Attempting to comply with the US Justice Department’s incorrect view of Section 5 of the Voting Rights Act by drawing as many majority black districts as necessary to get a redistricting plan precleared is not a compelling interest justifying a racial gerrymander. Miller v. Johnson, 515 US 900 (1995). A racial gerrymander exists when traditional districting principles such as compactness and preservation of governmental subdivisions are subordinated to racial concerns. Miller v. Johnson, supra; Abrams v. Johnson, 521 US 74 (1997).

North Carolina’s oddly shaped 12th congressional district was not required by Section 2 or Section 5 of the Voting Rights Act and, thus, is unconstitutional. Shaw v. Hunt, 517 US 899 (1996) (Shaw II).

Federal voting rights law does not require the creation of a new legislative district that would include a racial minority group that has less than 50 percent of the population, even as a remedy when minority voters’ rights have been diluted. Only when a group of minority voters would form a majority in a single-member district must it be created as a remedy under Section 2 of the Voting Rights Act of 1965. Bartlett v. Strickland, 556 U.S. ___ (2009).

10. The use of both single member districts and multi-member districts in the same redistricting plan violates the State Constitution unless a compelling interest is shown.

Jurisdictions that use both single-member and multi-member districts may run afoul of Stephenson v. Bartlett, 355 N.C. 354 (2002). In that case, the North Carolina Supreme Court held that the use of both single-member and multi-member districts within the same plan violates the Equal Protection Clause of the state Constitution unless it is established that the inclusion of multi-member districts advances a compelling state interest. While the Stephenson case was focused on state legislative districts, it is likely that the same principle would apply to local jurisdictions.

Copyright © 2010 Tharrington Smith, LLP, Raleigh, North Carolina