Blog
Redistricting
By Keesha Gaskins – 01/12/12
The Supreme Court is considering the role of federal courts in creating interim plans while a state redistricting plan awaits a preclearance decision under Section 5 of the Voting Rights Act. The dispute arises out of Texas’ current redistricting process. The Court heard oral arguments Monday on an expedited hearing schedule, so a decision is anticipated shortly.
Every 10 years, following a census, the federal government reviews population distribution across the country and, based upon a division of total population between total congressional seats, re‑allocates the appropriate number of congressional seats to each state. Any state may gain, lose or keep the same number of congressional seats in this process, depending on population growth or loss. Then, every state must redraw district lines for congressional and state legislative seats to satisfy the constitutional principle of “one-person, one-vote” in response to new population information. In 37 of 50 states, including Texas, the responsibility of drawing these lines falls to the legislature. Following the 2010 Census, Texas was allocated four additional congressional seats due to an increase of more than 4 million new residents, the overwhelming majority of which were Latino.
Due to a history of discriminatory voting practices, Texas has been under the jurisdiction of Section 5 of the Voting Rights Act since 1975. The Voting Rights Act obligates Texas to submit any election change, like its new redistricting plans, to the federal government for preapproval, or “preclearance,” through either the Department of Justice or the D.C. Circuit Court before any part of the redistricting plan may be enacted. In order for Texas to conduct elections in 2012, it needs to have redistricting plans in place no later than March so candidates have time to file for the primary election.
In July 2011, Texas finalized new redistricting plans for its state house, state senate, and Congress and submitted those plans to the D.C. Circuit Court for preclearance. The Department of Justice opposed preclearance, alleging the Texas legislative plan unfairly discriminated against minority voters. While the preclearance process was pending in D.C., plaintiffs filed different claims in federal court in San Antonio, TX, claiming the legislative redistricting plans violated federal law and the constitution. Because the San Antonio court could not know whether the legislative plans would go into effect until after the D.C. Court made a decision about preclearance, it stayed all action until the completion of the preclearance action.
In November 2011, the D.C. Court found that the Texas plans were not entitled to preclearance as a matter of law and ordered a trial on the merits. The San Antonio Court, noting that the D.C. Court could not finish its work in time for Texas to conduct its 2012 elections, ordered the parties to submit proposed plans so it could create interim plans to use for the 2012 elections. Then, the San Antonio court produced plans that were very different than the plans produced by Texas’ Republican-controlled legislature. In response, Texas filed a motion with the U.S. Supreme Court, asking the Court to intervene and stop the interim plans developed by the San Antonio Court from going into effect.
On December 9, 2011, five justices of the Supreme Court ordered the stay and an expedited hearing on the issue of whether the San Antonio Court interim plan should go into effect, which they heard Monday.
In considering this matter, the Court will weigh whether Section 5 of the Voting Rights Act retains its full force and effect by not allowing implementation of any non-precleared plan in whole or in part, or whether the San Antonio Court should have given greater deference to the Texas legislative plans – which have not been found to violate any state or federal law – in crafting interim redistricting plans.
Courts are frequently called upon to craft redistricting plans. But courts typically step in only after a state legislature or commission fails to complete the plan in time or after there is a legal finding that the state plan violated state or federal law and a court must draw a remedial plan. Here, the court in San Antonio acted to create an interim redistricting plan that differed significantly from a completed legislative plan that had not been found to be illegal. But because Texas’ legislative plans are under the jurisdiction of Section 5 of the Voting Rights Act, no part of the plan may be enacted until Texas achieves preclearance from the federal government.
There is legitimate concern that if the Supreme Court orders the lower court to show deference to the state legislative plan in crafting an interim solution, it will significantly undercut the ability of Section 5 to protect jurisdictions from redistricting plans that discriminate against minority voters. Moreover, such a decision could incentivize Section 5 jurisdictions to drag out the preclearance process with the intention that the non-precleared plans will serve as a benchmark for any interim plan until preclearance is granted or denied.
It remains to be seen whether the Supreme Court will uphold the full force of Section 5 and refuse to permit any deference to an unprecleared plan, or whether it will require courts placed in the position of drafting interim redistricting plans to show some degree of deference to legislative redistricting plans during the preclearance process. Arguably, if the Supreme Court was going to allow the interim plans to stand, five justices would have allowed the interim plans to go into effect rather than stay the order of the San Antonio court.
At oral argument the Justices expressed clear opinions about the sufficiency of the interim plan. Certainly the “progressive” justices suggested that the San Antonio panel did an appropriate job in crafting an interim solution. However, there was an unwillingness of the more “conservative” members of the court to find the Texas legislative plan void. Because the San Antonio Court crafted an interim plan, not a remedial one, and because there was no judicial finding of infirmity, the right-leaning side of the court certainly suggested that a legislatively enacted plan is entitled to deference. While the outcome is not certain, the entire Court appeared to accept that the constitutionality of Section 5 is not at issue in this case.
We expect that the Supreme Court will rule on this case quickly to ensure that Texas has new district lines in place for this year’s elections. The litigation in the D.C. Court and in San Antonio will continue, and legal determinations will be made as to whether the Texas district lines are legal under the Voting Rights Act and the U.S. Constitution. We can only wait to see what this will mean for the future of Section 5.
Tags: Democracy, Redistricting
By Bonnie Ernst – 06/09/11
On June 3rd, the Census Bureau released a final tip sheet on how to find information on demographics in each state, geographic mobility, public education finances, and U.S. Capital Spending from 2000 to 2009. The Census Bureau is in the middle of releasing mountains of data -- and this data is about to make it much easier for communities of interest to define themselves and speak up effectively in the redistricting process.
“Communities of interest” are groups of individuals who are likely to have similar legislative concerns and therefore would benefit from having representatives that would voice their cohesive interests. Currently, twenty-four states directly address communities of interest through state constitutions, statutes, and other guidelines outlined for redistricting bodies. And there are even more states where communities of interest have been considered as part of the redistricting process or court cases surrounding political representation.
If they’re recognized by line-drawers, these communities can be key to informing how the political maps get remade, but describing and defining them is a challenge. Whether or not such a community exists and where its boundaries lie are both not quite as cut-and-dried as other factors in redistricting, such as existing political and governmental boundaries or geographic compactness.
It is about to get easier though. The data the Census Bureau is releasing will help constituents, advocates, and legislatures work to keep communities of interest intact during the current redistricting cycle. As states work start drawing the lines throughout the summer and over the next year, the Census Bureau will be share information regarding demographics, ethnicity, gender, age, and various the economic breakdowns on counties and regions across the country. Having this breadth and depth of information available to individuals and organizations when they testify before redistricting authorities will help make it clear to line-drawers where communities of interest are located and how they want to be represented.
The Bureau will also release data that will contain demographic, economic, and governmental data on counties, and these will be useful when compiling comparisons between counties or when looking at the status of a single county. Data on children’s living arrangements, including extended family households, as well as a separate information that will track school enrollment levels for children three years old and older. Later in the summer there will be a release of data on economic indicators and county business patterns.
Courts have recognized social, cultural and racial/ethnic interests, economic/trade interests, geographic concerns, common communication and transportation networks, media markets, urban and rural responsibilities similar or related occupations, and lifestyles as part of the factors to consider when defining a community of interest.
As the Census releases more data, we’ll get a fuller picture. And members and leaders of all kinds of communities will be able to leverage this information to better inform the political line-drawers about their communities, and hopefully achieve better results for the next decade.
Tags: Democracy, Redistricting
By Bonnie Ernst – 04/25/11
Last week the United State Census Bureau released a new data file giving states new opportunities to correct the decades-old problem of prison-based gerrymandering.
Prison-based gerrymandering occurs when the thousands of people incarcerated in state and federal prisons are counted by the Census as residents of the districts where they are incarcerated rather than residents of their home communities, where most inmates will return upon release. These two addresses are usually far apart. When tied with the nation’s significant rate of incarceration, prison-based gerrymandering leads to a systematic distortion of the population in some districts. Districts with prisons are constructed by counting “ghost voters,” or inmates, toward the district size but who, with few exceptions, are not permitted to vote. Furthermore, inmates rarely have any connection to other residents and communities in the district where they are incarcerated. Prison-based gerrymandering inflates the political power of residents in prison districts, and deflates the power of residents everywhere else.
Last year, the Census Bureau agreed to release a new data product that will provide states with information and greater flexibility to remove people in prison from the prison districts and reallocate them to their home communities for redistricting.
On April 20, the Census Bureau released an early version of the group quarters data that will include adult correctional facilities in addition to juvenile facilities, nursing facilities and other institutional and non-institutional facilities. The data will have information for states in addition to smaller categories such as counties, census tracts and geographical blocks. The data will allow states to identify and use effectively prison population information for state and local redistricting purposes.
This data will be particularly useful for New York. As New York gears up for redistricting, the Census Bureau has made it easier for the state to follow its new legislation that put an end to prison-based gerrymandering. In summer 2010, lawmakers in Albany passed a bill that mandated that redistricting officials to allocate people in prison to their home communities rather than to the districts where they are incarcerated. Maryland and Delaware passed similar legislation last year.
Earlier this month, several New York legislators filed a lawsuit challenging the New York law. As the New York Times recently editorialized, people incarcerated in large correctional facilities run by the state cannot be considered true residents of the county or district in which they are incarcerated. The new group quarters data allows states and localities to correct the skew caused by prison-based gerrymandering.
Tags: Democracy, Redistricting
By Bonnie Ernst – 04/15/11
The Brennan Center is excited to release our newest redistricting publication, Know Your Lines, a fold-out poster created in partnership with the Center for Urban Pedagogy’s Making Policy Public series and talented designers at We Have Photoshop. The poster provides a clear, graphically enhanced explanation of redistricting, concrete ideas about how to engage in the redistricting process, a timeline and list of additional resources.
Last year, the Brennan Center was selected through a competitive process to collaborate with CUP and the design team to create this innovative public education tool. CUP’s Making Policy Public series aims to make information on policy truly public: accessible, meaningful, and shared. The series creates opportunities for designers to engage social issues without sacrificing experimentation and for advocacy organizations to reach their constituencies better through design.
We hope this poster will be a valuable resource to help make sense of the redistricting process in your community. To order copies of the poster, please click here. Visit our redistricting page more information about the Brennan Center’s redistricting work and other helpful publications.
Tags: Democracy, Redistricting
By Andrew Goldston – 02/07/11
Virginia is one of several states that just received their neighborhood-level census data. This data, breaking down population changes at the most local levels, is what will allow the state to redraw its political maps to reflect population changes -- which is expected to have a major impact on regional balances of power within the state.
A fun new widget from the Census Bureau gives the public a great visual peek at where the balances have shifted over the last ten years. The widget is an interactive map -- it has population growth displayed by county and charts of state-level demographic changes. While it won't let you get your hands dirty with some do-it-yourself redistricting, it does clue you in on which regions have gained population and will be gaining in representation, once the lines are drawn.
So far the Census Bureau has released versions for the states that received their neighborhood-level data last week. Have a look below!
Tags: Democracy, Redistricting
By Brennan Center for Justice – 11/16/10
The Brennan Center mourns the passing of Larry Hansen – Vice President of the Joyce Foundation in Chicago since 1994, and a one-of-a-kind leader in the movement to make American democracy work better. Larry enjoyed a long and distinguished career. Among his many accomplishments, he designed and built the Midwest Democracy Network, a coalition of state-based reform groups in Illinois, Ohio, Wisconsin, Michigan and Minnesota with which the Brennan Center works closely. In his determination to improve our democracy, he continually played a leadership role in the philanthropic community to envision and then support innovative and necessary reforms, including campaign finance reform and more recently, redistricting. Larry was a dear friend to many at the Brennan Center, and a strong and steadfast supporter of our work.
“In every conversation I had with Larry he would make me both laugh out loud and think seriously,” remembers Erika Wood, deputy director of the Democracy Program. “Larry was deeply committed to making sure our government worked for and represented all Americans. At the same time, he always made time to enjoy good conversation and company, and of course a good joke. He was a tremendous advocate and a very special colleague. It was an honor and a pleasure to work closely with him over the years."
Larry was an inspiration to all of us at the Brennan Center. His vision, leadership, wisdom and sense of humor will be greatly missed.
Tags: Democracy, Campaign Finance Reform, Redistricting, Justice
By Erika Wood – 08/04/10
This summer the New York legislature took decisive action to create two important policy reforms: requiring that people in prison be allocated to their home communities for redistricting purposes; and requiring criminal justice agencies to provide voting rights information to people who are again eligible to vote after a felony conviction. While Albany has long been labeled “dysfunctional,” these particular reforms actually stand to make aspects of our state government models for democratic fairness and participation.
Both proposals are long overdue and have been introduced again and again and again, and both have garnered strong support in the legislature. Nevertheless, political wrangling repeatedly stymied their progress. This year, democracy trumped politics. Well, not quite. The legislation was pushed through in the budget revenue bill with no public hearing or debate. We will continue to criticize Albany for passing legislation behind closed doors with no opportunity for public input. But that’s for another post. Here, we hail the result.
The first reform assures that long under-represented communities have a full and fair voice in our state government. At present, incarcerated individuals are counted for federal Census purposes as residents where they are incarcerated rather than as residents of their home communities. In New York, where people are often imprisoned far from home and incarceration rates have skyrocketed in the last decade, this policy has produced increasingly harmful results. Public officials in prison districts have an incentive to build their districts on the backs of “ghost voters,” packing in prisoners who count toward the district size but who are not permitted to vote. So while officials who profit from the prison economy have an outsized voice in incarceration policy, the voting strength of the home communities – to which the vast majority of incarcerated people return – is diluted, resulting in under-representation in our state government.
The new legislation requires the Department of Correctional Services to provide the legislature with the necessary information to determine the home addresses for people in prison, and it instructs that incarcerated people should be allocated back to their home communities for redistricting purposes. This corrects a skew that has decimated the voting strength of poor and minority communities for decades, and assures that all communities in New York have equal representation and an equal voice in our government. Both Maryland and Delaware recently passed similar legislation.
The second policy reform is no less urgent. It will correct years of misinformation, promote successful reintegration and help protect public safety, while building civic participation among traditionally disenfranchised communities. Reliable information about voting rights is needed to address widespread, persistent, and well-documented misinformation in New York. Under New York law, people convicted of a felony lose the right to vote while in prison and parole. People on probation do not lose the right to vote. Once someone serves his maximum prison sentence or is discharged from parole, his right to vote is automatically restored. He need do nothing more than fill out a voter registration form like everyone else. Nevertheless, New York election officials have consistently misapplied the law and some have required people to provide unnecessary (and sometimes nonexistent) paperwork before being allowed to register. Not surprisingly, this confusion among election officials has affected the public. In 2005, researchers found that nearly 30% of people with criminal convictions surveyed in New York thought they would never be eligible to vote again.
New York’s new law is the latest in a national trend. Twenty-four other states and New York City already require certain state and local agencies to inform people when their voting rights are restored following a criminal conviction. It is a simple, workable policy that promises to have a major impact in assuring successful reintegration and reduced recidivism. Last year a retired New York parole chief testified before the New York Senate Elections Committee, “having the right to vote and learning how to exercise that right gives one a voice and a stake in the community; it promotes positive behavior and serves as a powerful conduit for making the transition from criminal to becoming a law abiding member of the community.”
The political jousting and escalating rhetoric of this seemingly endless New York budget season have been baffling, and at times excruciating. But this legislation shows that sometimes behind the shenanigans important policy reforms can be achieved. These two proposals in particular have the potential to make at least some aspects of our representative government a model for the rest of the country, and that’s not something we say lightly.
Tags: Democracy, Redistricting, Voting After Criminal Conviction, Post-Incarceration Restoration of Voting Rights, State-Based Advocacy
06/22/10
Jenny Shen and Nic Riley
On Tuesday, the Village of Port Chester, NY, elected its first Latino candidate to public office. With just over 10 percent of the vote, Luis Marino, a Peruvian-born custodial worker and long-time Port Chester resident, earned a seat on the Village’s six-member Board of Trustees.
Mr. Marino’s victory represents the culmination of a four-year struggle to change the face—as well as the structure—of local elections in Port Chester. The effort began in 2006 when the Department of Justice filed suit against the Village under Section 2 of the Voting Rights Act of 1965, alleging that Port Chester’s at-large system for electing its Board of Trustees marginalized Latino citizens by diluting their voting strength in Village elections. While Latinos make up nearly half of the Village population, no Latino had ever been elected to local office.
In 2008, a federal judge agreed with the Justice Department and ordered the Village to replace its existing election system with another, less discriminatory process for electing its Board of Trustees.
The court considered a variety of proposed remedies for Port Chester’s voting rights violation. The Department of Justice argued that Port Chester should be divided into districts with individual representatives—the most common remedy for discriminatory at-large election systems. Such a system would allow the Village to draw Latino-majority districts with the power to elect their preferred candidates.
As an alternative, the Brennan Center, which represented FairVote as amicus curiae, urged the court to consider an election system called “choice voting.” Under choice voting, voters rank candidates in descending order of preference. Candidates who receive high rankings from a sufficient number of minority voters can still gain representation on multi-member legislative districts even if white voters support other candidates.
Ultimately, however, the court selected Port Chester’s own proposed remedy: a system called “cumulative voting,” which the Brennan Center also endorsed. Under a cumulative voting system, voters can distribute their votes in whatever combination they choose. In Port Chester, for example, each voter had six votes to cast as they chose. They could cast all six for a single candidate or distribute their votes among a group of candidates. This system’s flexibility allows minority voters to pool their votes in order to elect their preferred candidates. The results from this week’s historic election—which also saw the election of the first African-American candidate to the Village Board—suggest that Port Chester’s minority voters may have done exactly that.
Yet, while the selection of Port Chester’s first elected minority Trustees certainly represents important progress for this New York suburb, in order to fully understand whether the new system was responsible for that progress we need more information about how minority voters actually voted. Cumulative voting can only empower minority voters if they understand the system. The federal judge that decided the Port Chester case seemed to recognize the importance of community education in his consent decree, which required the Village to undertake a major voter education effort—including mass mailings and public seminars—to teach voters about cumulative voting. Still, questions remain as to whether these efforts ultimately succeeded in giving voters a complete understanding of cumulative voting.
Fortunately, we may soon have this information. FairVote, in conjunction with Port Chester and the New York City Bar Association, organized volunteers to survey Village voters about their voting experiences as they exited the polls. Political scientists will evaluate the responses of these surveys to determine how well voters understood the new system.
We were among the volunteer surveyors stationed at Port Chester’s ten polling precincts on Election Day and, as such, had an opportunity to witness voters’ reactions to the new election system first-hand. As some news outlets anticipated, voters’ opinions on the new system ran the gamut, with some lauding cumulative voting for creating new opportunities and others denouncing the change as unnecessary.
But while voters displayed a variety of different attitudes towards the new voting system, one thing was apparent to us: Port Chester residents care deeply about the way their elections are run. Many of the voters we met had clearly taken the time to reflect on the recent changes to their local democratic process. Our experience revealed that—contrary to certain media coverage depicting Village voters as merely pawns in a broader political struggle over race and voting rights—these voters saw the court-ordered exit surveys as a genuine opportunity to share their thoughts about their new election system. Some even viewed the survey as a chance to shape future elections, both in their Village and around the country.
In the end, we still have to wait for the results of these surveys before we know whether the new Trustees were the preferred candidates of minority voters in Port Chester; however, with the increased diversity in Village government and improved turn-out among voters, last week’s election has already offered plenty to celebrate.
Tags: Democracy, Redistricting, Voting Rights & Elections
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