Redistricting by the General Assembly: Five Legal Considerations

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Robert Joyce

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UPDATE February 2017:  In 2013 the United States Supreme Court, in effect, declared Section 5 of the Voting Rights Act of 1965 unenforceable.  Section 2 of the Act, as described below, remains a redistricting consideration, but Section 5 does not.

The General Assembly is responsible for drawing new districts for electing members of Congress and members of the state House and Senate.  It faces many issues of partisan politics and good governance, but for the moment let’s focus on five legal considerations.

(As a side matter, keep in mind that, in addition, more than 100 counties, cities, and school units that elect their governing boards from districts are now undertaking the redistricting task, and for them the legal issues are principally the same as those facing the General Assembly.)

The first of the five is the requirement that districts must contain about the same number of people each.  This requirement commonly goes by the name one-person-one-vote, and it is a requirement that, as the US Supreme Court has said for the past fifty years, comes directly from the US Constitution.  There was a time when state legislatures did not try to make districts the same size—in fact, until the 1960s each county in North Carolina was entitled under the state Constitution to one member of the state House, no matter how small the county was.  But the Supreme Court said that uneven districts violate the Equal Protection Clause of the Fourteenth Amendment of the US Constitution, because people living in more populous districts have votes that count less than people living in smaller districts.  So now the rule of thumb is that for state House and Senate districts, the spread from the least populous district to the largest, when the new districts are drawn, cannot exceed 10%.  And, the US Supreme Court has said, for seats in Congress the requirement is even stricter—very little deviation is allowed.  In the last redistricting round 10 years ago, all the congressional districts were drawn to be within one person of the same size.

The one-person-one-vote requirement will be challenging to meet, but the legal concept behind it is really straightforward.  The second of the five legal considerations is, by contrast, complicated and subtle.  It is the proper consideration of race in the drawing of districts.  The general legal principle is that race should not be the dominant factor in the drawing of districts.  The US Supreme Court said exactly that in a redistricting case arising in North Carolina.  Yet there are two circumstances in which the law requires that race be taken into account, and both of those arise under the federal Voting Rights Act of 1965.  That Act has two central provisions.  The first, Section 2, prohibits discrimination in the administration of elections everywhere in the country.  The second, Section 5, requires the preclearance of electoral changes in some jurisdictions in the country, including 40 North Carolina counties.

Under Section 2—the general anti-discrimination provision—there have in the past in North Carolina been successful lawsuits that challenged the ways in which certain elections were conducted, including challenges to the past ways of drawing legislative districts.  The remedies that the courts imposed in those lawsuits required the consideration of race in the drawing of districts, mandating the creation of districts that had a majority African-American population, again including a number of legislative districts, to enhance the opportunities for African-American voters to participate in the electoral process and to elect candidates of their choice.  As a result, the General Assembly is obligated to continue to consider race in the drawing of districts where those remedies for prior discrimination have been put into place.

And under Section 5—with respect to those 40 North Carolina counties covered by its provisions—the law requires that electoral changes, such as redrawing lines to meet the one-person-one-vote requirement, must not be made in such as way as to make it harder for African-American voters to participate in the electoral process and to elect candidates of their choice.  Changes that make it harder are termed “retrogressive” and the US Department of Justice will not pre-clear such changes, unless perhaps demographic shifts have made the retrogression unavoidable.  Of course, the entire state-wide plans must be submitted for preclearance, because every part of a plan will depend to some extent on every other part.

The third of the five legal requirements that the General Assembly must keep in mind, with respect to the state House and Senate districts, is found in the Whole Counties provisions of the state Constitution.  The Constitution prohibits dividing counties in drawing legislative districts.  In interpreting that provision, our state Supreme Court has recognized that the primacy of federal law means that considerations under the Voting Rights Act, as described just above, must be met first, and they may, in the proper circumstance, require the dividing of counties.  Beyond that consideration, however, the state Supreme Court has given a roadmap of instructions to the legislature on how to combine counties into groupings and then to create divisions within the groupings to meet as fully as possible the one-person-one-vote requirements and the Whole Counties provision at the same time.

The fourth of the five legal requirements was defined by our state Supreme Court recently:  in the drawing of maps for the state House and Senate, the General Assembly may not use a mix of single-member and multi-member districts.  Multi-member districts were once common.  The practical consequence now is that all districts must be single-member.

The fifth of the five legal requirements is found in the state Constitution:  all state House and Senate districts must be composed of contiguous territory.

In addition to these five legal requirements, there are other concerns.  One, the US Supreme Court has been clear that incumbency protection is a legitimate concern in drawing districts.  Two, there has long been a consensus that compactness in the drawing of districts is a desirable consideration, even if it may not be literally required.  And three, it is highly desirable from the point of view of elections administrators that the General Assembly not split voting precincts in the drawing of districts.  Not only is administration eased, but the likelihood of error is reduced.

Redistricting is inherently a political exercise, but it operates within these legal constraints.

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