Professional Documents
Culture Documents
FOR THE PEOPLE OF TEXAS
A Proposed Congressional Redistricting Act
and Constitutional Amendment
for the State of Texas
Õ
February 2011
PREPARED BY:
A. J. Pate, CPA
Houston, Texas
By: __________________ ____ _____.B. No. ________
A BILL TO BE ENTITLED
AN ACT
relating to the redistricting of congressional districts and the establishment of redistricting
principles1 and procedures to provide fair and effective representation2 for the people of Texas
and to maintain public confidence in the integrity of the redistricting process.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle A, Title 3, Government Code, is amended by adding Chapter 307 to read as
follows:
CHAPTER 307. ESTABLISHMENT OF REDISTRICTING PRINCIPLES AND PROCEDURES
Sec. 307.001. DEFINITIONS. In this chapter:
(1) "Federal census" means the decennial census required by the United States
Constitution to be conducted by the United States Bureau of the Census in every year ending in
the numeral zero.
(2) "Plan" means a redistricting plan for the Texas congressional districts drawn
pursuant to the requirements of this chapter.
Sec. 307.002. PLAN REQUIREMENTS.
(A) In a plan adopted under this chapter, all applicable state and federal constitutional
and statutory requirements shall be followed:
(1) Districts shall be established as nearly equal in population as practicable and
feasible3 to comply with the United States Constitution as interpreted by the Supreme Court of
the United States. The total population deviation of the plan shall be less than one percent
from the ideal district population,4 in compliance with the legitimate state objectives and
legislative policies5 stated in this chapter. The ideal district population shall be calculated by
dividing the total state population in the most recent federal census by the total number of
districts. Deviations shall be specifically reconciled to the redistricting principles stated in this
chapter.6
(2) The plan shall comply with applicable requirements of the federal Voting
Rights Act of 1965, as amended. Such requirements protect geographically‐compact minority
groups7 and are fully consistent with the redistricting principles expressed in this chapter. The
redistricting principles shall not be subordinated to combine distant and discrete minority
communities of interest with disparate needs and interests.8
(B) In a plan adopted under this chapter, the following redistricting principles shall be
followed:
(1) The plan shall respect the integrity of the state's basic geographic regions9
delineated by its Councils of Governments.10 These councils shall form the cores of districts
insofar as practicable, individually or by combining or dividing as may be required to comply
with population equality.
(2) The plan shall avoid unnecessarily dividing counties and cities in the
formation of districts.11 To the extent practicable, district lines shall be coterminous with the
boundaries of these political subdivisions.12 City boundaries, which may be highly irregular,13
shall not be given priority over retaining a community of interest intact.
(3) The plan shall keep intact, to the extent practicable, any discrete and insular
communities of interest14 which are readily identifiable, based on actual shared and relevant
interests and common concerns. Communities of interest shall be defined by social, economic,
racial, ethnic, cultural, industrial, commercial, and/or geographic commonalities.
(4) Each district shall be composed of undivided census tracts15 as the smallest
unit of redistricting.16
(5) Districts shall be geographically compact,17 composed of convenient
contiguous territory,18 based on a sense of community enabled by reasonable availability and
facility of transportation and communication between population centers and other inhabited
areas.19 Districts shall not be considered non‐compact due solely to following irregular natural
geographic or political boundaries.20 A district is not contiguous unless all areas are joined by
whole census tracts; areas which connect only at the points of adjoining corners are not
contiguous.21 The Texas Legislative Council shall develop compactness tests, based on
prevailing optimal compactness models,22 to measure relative compactness of individual
districts and alternative plans.
(6) The plan shall be drawn totally and absolutely without regard or reference to
partisan political effect or consequences of any kind.23 The following data are strictly
prohibited and excluded from use in establishing districts: partisan data of any type, voting
history and electoral data, and locations of the residences of incumbents, candidates, or any
other specific persons.
(C) All of the above redistricting principles can be classified as various aspects or
characteristics of communities of interest,24 from regional to local. However, since the
population equality requirement is generally counterproductive to such interests,25
adjustments to equalize populations shall be made at the margins of districts, with minimal
disruption of communities of interest.
(D) The redistricting principles are interdependent and interrelated, with the intent of
being not only reconcilable, but also compatible.26 Any conflicts between these principles in
their application shall always be resolved in favor of the principle that, in a specific or particular
circumstance or instance, would provide the fairest and most effective representation for
affected communities of interest.
(E) The redistricting principles shall apply to all plans drawn and adopted by the
legislature, or any agency or commission that the legislature may establish for such purposes.
Sec. 307.003. PROCEDURAL STANDARDS.
(A) Preliminary Regional Hearings.
(1) The legislature shall conduct public hearings in the various geographical
regions of the state, as has been its customary practice, beginning in the year in which the
federal census is taken.
(2) At a minimum, public hearings shall be conducted within all Councils of
Governments with populations equal to or greater than the average district population, as of
the federal census then current.
(3) These public hearings shall be adequately publicized through state and local
media and the Internet, as appropriate. These publications shall include the plan requirements
(Sec. 307.002).
(4) These public hearings shall be designed to promote public participation in the
redistricting process by providing citizens the opportunity to present relevant testimony,
particularly regarding the identification of local and regional communities of interest.
(5) All citizens, or any person representing citizens, shall be given equal
treatment in public hearings. No person, including officeholders at any level of government,
will be given deference or preferential treatment, nor will their testimony, oral or written, be
given preferential consideration. Testimony will be received in the order of appearance at all
hearings, as determined by each person personally registering to speak.
(B) Redistricting Bills.
(1) In January of each year ending in the numeral one, the legislature will
convene in regular session. The official population data from the federal census taken in the
previous year will be delivered by the United States Bureau of the Census no later than April 1
as required by federal law. Plans must be completed prior to filing deadlines for primary
elections in the following year (years ending in the numeral two), after allowing for up to 120
days for preclearance under Section 5 of the Voting Rights Act by the United States Justice
Department or the United States District Court for the District of Columbia.
(2) In the process of preparing a plan during the regular session and called
special sessions, if any, legislative redistricting committees shall hold public hearings as deemed
adequate and appropriate, in compliance with the standards in Sec. 307.003 (A) (3), (4), and (5).
(3) Public testimony shall be taken at all hearings on preliminary plans made
public by committees or individual members of the legislature, particularly presenting evidence
and argument with respect to the specific application of plan requirements, in part or in whole.
(4) Plans may be submitted at all hearings, and to the redistricting committees at
other times, by citizens or other interested parties. These plans must meet the following
criteria: must be based on the latest federal census data, must present a statewide plan, must
conform to plan requirements, and must provide relevant explanations for each district drawn.
Informational submissions, clearly designated as such, may be prepared and presented for the
sole purpose of identifying boundaries of specific communities of interest, with or without
regard for population factors.
(5) The Texas Legislative Council shall establish objective models to measure
compliance with plan requirements (Sec. 307.002). Before final consideration and adoption of
a plan, the council shall prepare a comparative analysis and qualitative ratings of all statewide
plans prepared by the legislature and by individual citizens using the redistricting computer
systems of the council. This analysis and rating shall be made public and available for public
comment. If the legislature does not adopt the plan rated highest, such action must be fully
explained with specific reasons.27
Sec. 307.004. CHALLENGES TO PLAN.
(A) The Texas Supreme Court shall be the court of original jurisdiction for legal
challenges to any plan adopted by the legislature.28
(B) if an adopted plan is challenged and declared invalid or if the legislature fails to
adopt a timely plan, the five highest‐rated plans, as determined by the Texas Legislative Council
(Sec. 307.003(B)(5)), shall be transmitted to the Texas Supreme Court. The council shall also
transmit to the court the highest‐rated plan prepared by an individual private citizen of the
State of Texas, if such a plan is not among the five highest‐rated plans. The court shall select
one of the plans, without change or modification, to serve as the redistricting plan for the state.
The adoption of a plan should be made not later than thirty days after transmitted plans are
received by the court.
(C) The Legislature hereby expresses its preference29 that any court, state or federal,
complies with state policy by incorporating the redistricting principles of this chapter (Sec.
307.002 (B)) in any plan it may prepare or adopt.
(D) Congressional redistricting is a state legislative function under both the state and
federal constitutions.30 Therefore, the legislature reserves the right to replace any court‐
mandated remedial plan,31 immediately if in session or, if not in session, in a called special
session or the next regular session, whichever comes first. However, a plan drawn and adopted
by the legislature or a plan selected and adopted by the Texas Supreme Court under Sec.
307.004(B) cannot be redrawn by the legislature until after the next federal census.
SECTION 2. This Act takes effect immediately upon passage if it receives a vote of two‐thirds of
all the members elected to each house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate effect, this Act takes effect
September 1, 2011.
By: __________________ ____ _____.J. R. No. ________
A JOINT RESOLUTION
proposing a constitutional amendment establishing fair redistricting principles and procedures
relating to the drawing of United States congressional districts for the State of Texas.
BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article Ill, Texas Constitution, is amended by adding Section 28a to read as
follows:
Sec. 28a. (a) The Legislature of the State of Texas exercises its authority to adopt
redistricting plans for the election of the members of the United States House of
Representatives from this state. Districts for this federal legislative body may not be
established or changed except as provided by this section.
(b) In a redistricting plan or modification of a plan drawn and adopted under this
section, the following principles shall apply:
(1 ) districts shall keep intact, to the extent practicable, identifiable
communities of interest, defined by social, economic, racial, ethnic, cultural, industrial,
commercial, and/or geographic commonalities;
(2) districts shall respect the integrity of the state's basic geographic
regions;
(3) districts shall be geographically compact, composed of convenient
contiguous territory;
(4) districts shall avoid dividing counties and cities in the formation of
districts, with district lines coterminous with the boundaries of political subdivisions to the
extent practicable;
(5) districts shall be composed of undivided census tracts;
(6) districts shall be drawn completely without purposeful intent to favor
or disfavor any specific person, political party, or any other organization;
(7) districts shall be established as nearly equal in population as
practicable and feasible in accordance with these principles; and
(8) districts must be drawn in accordance with the United States
Constitution and all applicable federal laws.
(c) The legislature shall enact appropriate laws to implement this section.
(d) The Supreme Court of Texas shall have original jurisdiction for legal
challenges to any adopted redistricting plan.
(e) No redistricting plan adopted by the legislature shall be redrawn by the
legislature until after the next federal census required by the United States Constitution.
However, the authority of the legislature to replace any court‐ordered remedial plan shall not
be restricted.
SECTION 2. This proposed constitutional amendment shall be submitted to the voters at an
election to be held November 6, 2012. The ballot shall be printed to permit voting for or
against the following proposition: "The constitutional amendment establishing fair redistricting
principles and procedures to be applied to the drawing of United States congressional districts
for the State of Texas."
1
Opinion of the Court, Justice Kennedy: ". . . traditional race‐neutral districting principles,
including but not limited to compactness, contiguity, and respect for political subdivisions or
communities defined by actual shared interests . . ." Miller v. Johnson, 515 U. S. 900, at 916
(1995).
Opinion of the Court, Justice O'Connor: ". . . traditional districting principles such as maintaining
communities of interest and traditional boundaries . . ." Bush v. Vera, 517 U. S. 952, at 977
(1996).
Justice Souter, with whom Justice Ginsburg joined, dissenting: ". . . traditional districting
principles . . .: contiguity, compactness, respect for political subdivisions, and conformity with
geographic features like rivers and mountains. . . . [,] such considerations . . . relevant to
justifying small deviations from absolute population equality, Karcher, 462 U. S., at 740 . . ."
Vieth v. Jubelirer, 541 U.S. 267, at 348 (2004).
2
Opinion of the Court, Chief Justice Warren: "[T]he achieving of fair and effective
representation for all citizens is . . . the basic aim of legislative apportionment . . ." Reynolds v.
Sims, 377 U.S. 533, at 565‐6 (1964).
3
Since Justice Brennan was the most zealous advocate on the Supreme Court of population
equality in districts, Karcher v. Daggett is often cited as a requirement for achieving absolute
equality ("zero deviation") between congressional district populations. The following quotes of
Justice Brennan in this case clearly dispel such a dogmatic misinterpretation of the Court's
opinion. In fact, the phrase "zero deviation" occurs only twice in Court opinions (one
occurrence being in a footnote), neither instance being the Opinion of the Court, and it has
never been a requirement of the Court.
Opinion of the Court, Justice Brennan: "Any number of consistently applied legislative policies
might justify some variance, including, for instance, making districts compact, respecting
municipal boundaries, preserving the cores of prior districts, and avoiding contests between
incumbent Representatives. As long as the criteria are nondiscriminatory, these are all
legitimate objectives that, on a proper showing, could justify minor population deviations."
[Citations omitted.] Karcher v. Daggett, 462 U.S. 725, at 740‐1 (1983). Justice Brennan also
stated in Footnote 6, "A federal principle of population equality does not prevent any State
from taking steps to inhibit gerrymandering, so long as a good faith effort is made to achieve
population equality as well. See, e.g., Colo. Const. Art. V, § 47 (guidelines as to compactness,
contiguity, boundaries of political subdivisions, and communities of interest); Mass. Const.,
Amended Art. CI, 1 (boundaries); N.Y. Elec. Law 4‐100(2) (McKinney 1978) (compactness and
boundaries)." He further stated in Footnote 11, "The very cases on which Kirkpatrick relied
made clear that the principle of population equality did not entirely preclude small deviations
caused by adherence to consistent state policies."
"[P]opulation equality is such a crude way of equalizing voters that an obsession with very small
population deviations seems rather silly." Bruce Cain, The Reapportionment Puzzle, (1984),
p. 59. As quoted by the Supreme Court of California, Wilson v. Eu, 1 Cal. 4th 707, at 754,
footnote 12 (1992).
4
"Congressional districts shall each have a population as nearly equal as practicable to the ideal
district population . . . No congressional district shall have a population which varies by more
than one percent from the applicable ideal district population . . ." Iowa Code, Chapter 42.4
(1.b), Redistricting standards. Apparently allowing for a total deviation of two percent.
A total deviation of one percent would be roughly equivalent to the average population of a
Texas census tract.
5
Opinion of the Court, Justice White: "Just as a federal district court, in the context of
legislative reapportionment, should follow the policies and preferences of the State, as
expressed in statutory and constitutional provisions or in the reapportionment plans proposed
by the state legislature, whenever adherence to state policy does not detract from the
requirements of the Federal Constitution, we hold that a district court should similarly honor
state policies in the context of congressional reapportionment. In fashioning a
reapportionment plan or in choosing among plans, a district court should not preempt the
legislative task, nor 'intrude upon state policy any more than necessary.' Whitcomb v. Chavis,
supra, at 160, 91 S. Ct., at 1878." White v. Weiser, 412 U.S. 783, at 795 (1973).
6
Opinion of the Court, Justice Brennan: "The State must, however, show with some specificity
that a particular objective required the specific deviations in its plan, rather than simply relying
on general assertions. The showing required to justify population deviations is flexible,
depending on the size of the deviations, the importance of the State's interests, the consistency
with which the plan as a whole reflects those interests, and the availability of alternatives that
might substantially vindicate those interests yet approximate population equality more
closely." Karcher v. Daggett, 462 U.S. 725, at 741 (1983).
7
In Thornburg v. Gingles, the Court established conditions for determining when a minority
district must be created under § 2 of the Voting Rights Act of 1965.
Opinion of the Court, Justice Brennan: ". . . [T]he minority group must be able to demonstrate
that it is sufficiently large and geographically compact to constitute a majority in a single‐
member district." Thornburg v. Gingles, 478 U.S. 30, at 50 (1986).
Opinion of the Court, Justice Kennedy: "It remains the rule, however, that a party asserting § 2
liability must show by a preponderance of the evidence that the minority population in the
potential election district is greater than 50 percent ['an objective, numerical test']." Bartlett v.
Strickland, 129 S. Ct. 1231, at 1249 (2009). "This Court has held that § 2 does not require the
creation of influence districts. . . . Only when a geographically compact group of minority
voters could form a majority in a single‐member district has the first Gingles requirement been
met." ibid., p. 1249.
Supreme Court of California, Report and Recommendations of Special Masters (hereinafter
"Masters"): "[T]he values expressed in the concept of contiguity, community of interest, and
respect for local government boundaries — the concept of 'functional compactness' — is
completely consistent with the concept of 'geographically compact' minority districts. Indeed,
use of these criteria reinforces the [Voting Rights] Act's guarantee to minority groups to have
an equal opportunity 'to participate in the political process' [citation omitted]." Wilson v. Eu, 1
Cal. 4th 707, at 763 (1992).
8
Opinion of the Court, Justice Kennedy: "[T]here is no basis to believe a district that combines
two far flung segments of a racial group with disparate interests provides the opportunity that
§ 2 requires or that the first Gingles condition contemplates. . . . Legitimate yet differing
communities of interest should not be disregarded in the interest of race. The practical
consequence of drawing a district to cover two distant, disparate communities is that one or
both groups will be unable to achieve their political goals." LULAC v. Perry, 548 U. S. 399, at
433‐4 (2006).
Opinion of the Court, Justice Kennedy: "A State is free to recognize communities that have a
particular racial makeup, provided its action is directed toward some common thread of
relevant interests." Miller v. Johnson, 515 U. S. 900, at 920 (1995).
9
Opinion, Supreme Court of California: "Insofar as possible the integrity of the state's basic
geographical regions should be preserved." Legislature v. Reinecke, 10 Cal. 3d 396, at 402
(1973).
Masters: "The integrity of California's basic geographical regions (coastal, mountain, desert,
central valley and intermediate valley regions), should be preserved insofar as practicable."
Legislature v. Reinecke, 10 Cal. 3d 396, at 412 (1973).
10
Masters: "[D]istricts should be contained, insofar as possible, wholly within one of the major
geographic regions of the state." Wilson v. Eu, 1 Cal. 4th 707, at 762 (1992).
I first applied the concept of using Texas' twenty‐four Councils of Governments to define the
geographical regions of Texas (macro communities of interest) in the 2000 redistricting cycle,
initially in testimony before legislative redistricting committees in 2000 and then incorporated
into my congressional redistricting plan for Texas, Plan No. 1025C, dated May 21, 2001.
Councils of governments, composed of whole counties, are associations of local governments
formed to deal with regional issues through coordinated planning and cooperative action.
LULAC v. Perry, 457 F. Supp. 2d 716 (E.D. Tex. 2006). On remand from the Supreme Court.
Remedial Proposal of A. J. Pate on Remand, Epilogue, filed July 14, 2006: "Plan 1160C was
drawn on a non‐partisan basis to maximize representation for communities of interest by
basing districts on publicly‐available independent, apolitical, and self‐defined communities of
interest: Councils of Governments, counties, and census tracts." See Endnote 24.
This concept had also been adopted in this same remedial phase by the Jackson plaintiffs, as
stated in the Remedial Brief of the Jackson Plaintiffs by Gerry Hebert for the Democratic
Congressional Interveners. This brief stated that its plan complied with "traditional, neutral
districting principles", including "respect for Texas's regions". Noting that Texas is divided into
twenty‐four regional councils of governments, the brief further stated that the Jackson Plan's
consistency with these regions "will allow Representatives in Congress to focus their efforts
more intently on county and local governments that share common interests."
This concept is adaptable nationally, since virtually all states are divided into councils of
governments or regional councils, which basically define their geographic regions.
11
Opinion, Supreme Court of California: "Insofar as practical, counties and cities should be
maintained intact." Legislature v. Reinecke, 10 Cal. 3d 396, at 402 (1973).
Masters: "It is clear that in many situations county and city boundaries define political,
economic and social boundaries of population groups. Furthermore, organizations with
legitimate political concerns are constituted along local political subdivision lines. Therefore,
unnecessary division of counties and cities in reapportionment districting should be avoided."
Legislature v. Reinecke, 10 Cal. 3d 396, at 412 (1973).
Also see Endnotes 1 and 3.
12
Opinion of the Court, Chief Justice Warren: "A State may legitimately desire to maintain the
integrity of various political subdivisions, insofar as possible, and provide for compact districts
of contiguous territory in designing a legislative apportionment scheme. Valid considerations
may underlie such aims. Indiscriminate districting, without any regard for political subdivision
or natural or historical boundary lines, may be little more than an open invitation to partisan
gerrymandering." Reynolds v. Sims, 377 U. S. 533, at 578‐9 (1964). Though this decision
applied to legislative districts, the principle remains the same for congressional districts.
"To the extent consistent with [population equality], district boundaries shall coincide with the
boundaries of political subdivisions of the state. The number of counties and cities divided
among more than one district shall be as small as possible." Iowa Code, Chapter 42.4 (2),
Redistricting standards.
Also see Endnotes 1 and 3.
13
Masters: "The use of whole census tracts makes it difficult to comply literally with another
recommended criterion, that of maintaining the integrity of city boundaries. Some cities have
exceedingly irregular boundaries with an odd assortment of "fingers" and "peninsulas" jutting
out from the basic part of the city. . . . Often census tract boundaries do not correspond exactly
with the boundaries of such cities. In such instances, census tract boundaries which preserve
the bulk of the city in one district have been followed even though it resulted in trimming off
small peninsulas or other such extensions of territory. This has been done only where the
population affected was relatively small." Legislature v. Reinecke, 10 Cal. 3d 396, at 413‐4
(1973).
City boundaries are frequently arbitrary and controversial, often including some groups which
prefer not to be included, while excluding some which would prefer inclusion.
14
Masters: "The social and economic interests common to the population of an area which are
probable subjects of legislative action, generally termed a 'community of interests' (cf. Gov.
Code, § 25001), should be considered in determining whether the area should be included
within or excluded from a proposed district in order that all of the citizens of the district might
be represented reasonably, fairly and effectively. Examples of such interests, among others,
are those common to an urban area, a rural area, an industrial area or an agricultural area, and
those common to areas in which the people share similar living standards, use the same
transportation facilities, have similar work opportunities, or have access to the same media of
communication relevant to the election process." Legislature v. Reinecke, 10 Cal. 3d 396, at 412
(1973).
Also see Endnotes 1 and 3.
15
Census tracts are designed by the U. S. Bureau of the Census to be demographically
homogeneous, relatively permanent, and bounded by natural and/or manmade geographical
features. They are statistical subdivisions of counties and do not cross county lines. See
Endnote 16.
Masters: ". . . [C]ensus tracts should be used as the basic unit for district formation, with
division of such tracts being made only when necessary for population equality or to improve
substantially compliance with other recommended criteria. Census tracts are the basic unit
used by the Census Bureau for measuring the characteristics of the population. . . . [A]n effort
has been made by the Census Bureau to make them homogeneous as to social characteristics
and to use prominent natural or manmade geographical features as boundaries. Thus,
following, rather than disregarding, census tracts will aid in establishing natural, well defined
legislative districts and will aid in obtaining valid pertinent socio‐economic data about such
districts." Legislature v. Reinecke, 10 Cal. 3d 396, at 413 (1973).
Opinion, Supreme Court of California: "We find the Masters' rationale for using undivided
census tracts to be both legitimate and compelling." Wilson v. Eu, 1 Cal. 4th 707, at 719 (1992).
Various redistricting experts, authorities, and other interested organizations are also now
calling for the use of undivided census tracts as the basic unit in redistricting.
These include:
• Model Redistricting Act, Section 4 (a)(6), Redistricting Criteria: "To the extent practicable,
district lines shall use visible geographic features, city and county boundaries, and undivided
census tracts." Issued in 2005 jointly by the Mexican American Legal Defense and Educational
Fund, California Common Cause, the Asian Pacific American Legal Center, and the League of
Women Voters of California.
• A Proposal for Redistricting Reform: A Model State Constitutional Amendment, Section 6.E:
"Respect for Neighborhoods. Each residence in the State must be included in one building
block, each building block must be included in one district, and no building block can be divided
between two or more districts. The term 'building block' means a census tract used by the
United States Bureau of the Census in the most recent federal decennial census of population."
Americans for Redistricting Reform, January 2009. By Sam Hirsch, formerly of Jenner & Block
LLP, Washington, D.C., representing Democratic plaintiffs in several Texas redistricting cases;
joined U.S. Department of Justice as Deputy Associate Attorney General in February 2009.
• Arizona State Constitution, Article 4, Part 2, Section 1 (14.E): "To the extent practicable,
district lines shall use visible geographic features, city, town and county boundaries, and
undivided census tracts . . ." The Arizona Redistricting Commission, independent of the state
legislature, was established by the passage of Proposition 106 by the people of Arizona in the
2000 general election.
16
"Census tracts generally have between 1,500 and 8,000 people, with an optimum size of
4,000 people. Counties with fewer people have a single census tract. When first delineated,
census tracts are designed to be homogeneous with respect to population characteristics,
economic status, and living conditions [micro communities of interest]. The spatial size of
census tracts varies widely depending on the density of settlement. Census tract boundaries
are delineated with the intention of being maintained over many decades so that statistical
comparisons can be made from decennial census to decennial census." U. S. Census Bureau,
Cartographic Boundary Files, Geographic Area Description, Census Tracts, 2005.
17
Masters: "The territory included within a district should be contiguous and compact, taking
into account the availability and facility of transportation and communication between the
people in a proposed district, between the people and candidates in the district, and between
the people and their elected representatives." Legislature v. Reinecke, 10 Cal. 3d 396, at 411
(1973).
Also, see Endnotes 1 and 3.
18
Masters: "'[C]ontiguity' is not an abstract or geometric technical phrase. It assumes meaning
when seen in combination with concepts of 'regional integrity' and 'community of interest.'"
Wilson v. Eu, 1 Cal. 4th 707, at 761 (1992).
Also, see Endnotes 1, 3, and 17.
19
See Endnotes 14 and 17.
20
"In general, reasonably compact districts are . . . not irregularly shaped, to the extent
permitted by natural or political boundaries." Iowa Code, Chapter 42.4 (4), Redistricting
standards.
21
"Districts shall be composed of convenient contiguous territory. Areas which meet only at
the points of adjoining corners are not contiguous." Iowa Code, Chapter 42.4 (3), Redistricting
standards.
22
In the Iowa Code, Chapter 42.4 (4), two different compactness tests are set forth in detail "to
compare the relative compactness of two or more districts, or of two or more alternative
districting plans".
23
"No district shall be drawn for the purpose of favoring a political party, incumbent legislator
or member of Congress, or other person or group, or for the purpose of augmenting or diluting
the voting strength of a language or racial minority group. In establishing districts, no use shall
be made of any of the following data:
a. Addresses of incumbent legislators or members of Congress.
b. Political affiliations of registered voters.
c. Previous election results.
d. Demographic information, other than population head counts, except as required by the
Constitution and the laws of the United States."
Iowa Code, Chapter 42.4 (5), Redistricting standards.
Opinion, Supreme Court of California: "In drawing voting district lines, the Masters expressly
declined to consider the effects of reapportionment on political parties or incumbents. . . . The
Masters' plans quite properly were intended to be politically nonpartisan and 'incumbent
neutral.'" Wilson v. Eu, 1 Cal. 4th 707, at 719 (1992).
24
In testimony before Texas legislative redistricting committees beginning in 2000 and
continuing through my congressional redistricting plans drawn after the release of census data
in 2001, I advocated the use of councils of governments as macro/regional communities of
interest, counties as intermediate/historical communities of interest (particularly rural
counties), and census tracts as micro/neighborhood communities of interest. These are nested
communities of interest—census tracts do not cross county lines and councils of governments
are composed of whole counties.
25
Justice Stevens, concurring: "The major shortcoming of the numerical standard is its failure
to take account of other relevant—indeed, more important—criteria relating to the fairness of
group participation in the political process. To that extent, it may indeed be
counterproductive." Karcher v. Daggett, 462 U. S. 725, at 753 (1983).
Opinion, Supreme Court of California: "As to all of the recommended criteria, their
applicability, priority and scope, other than population equality, depend on circumstances
indigenous to the area under consideration." Legislature v. Reinecke, 10 Cal. 3d 396, at 414
(1973).
Justice Powell, with whom Justice Stevens joined, concurring in part and dissenting in part: "A
standard that judges the constitutionality of a districting plan solely by reference to the
doctrine of 'one person, one vote' may cause two detrimental results. First, as a perceived way
to avoid litigation, legislative bodies may place undue emphasis on mathematical exactitude,
subordinating or ignoring entirely other criteria that bear directly on the fairness of
redistricting. Second, as this case illustrates, and as Reynolds v. Sims anticipated, exclusive or
primary reliance on 'one person, one vote' can betray the constitutional promise of fair and
effective representation by enabling a legislature to engage intentionally in clearly
discriminatory gerrymandering." [Citations omitted.] Davis v. Bandemer, 478 U.S. 109, at 168
(1986).
Justice Harlan, with whom Justice Stewart joined, dissenting: "[T]he Court's exclusive
concentration upon arithmetic blinds it to the realities of the political process, as the
Rockefeller case makes so clear. The fact of the matter is that the rule of absolute equality is
perfectly compatible with `gerrymandering' of the worst sort. A computer may grind out
district lines which can totally frustrate the popular will on an overwhelming number of critical
issues. The legislature must do more than satisfy one man, one vote; it must create a structure
which will, in fact, as well as theory be responsive to the sentiments of the community." Wells
v. Rockefeller, 394 U.S. 542, at 551 (1969).
Zero population deviation, virtual or actual, is a reductio ad absurdum. The Court had strained
at a gnat, and swallowed a gerrymander.
26
Masters: "In sum, we find the criteria underlying the drawing of district boundaries . . . not
only reconcilable, but compatible. The criteria have guided our deliberations and informed our
decisions." Wilson v. Eu, 1 Cal. 4th 707, at 763 (1992). Cited by DeWitt v. Wilson, 856 F. Supp.
1409, at 1414 (1994).
27
In general, this is similar to the redistricting role of Iowa's Legislative Services Agency, a
nonpartisan legislative agency which serves the Iowa General Assembly. Iowa Code, Chapter
42.3, Timetable for preparation of [redistricting] plan.
28
Currently, seventeen states have designated the state's supreme court as the court of original
jurisdiction in challenges to redistricting plans.
The Supreme Court of California was called upon to resolve impasses created by the Legislature
failing to prepare redistricting plans acceptable to Gov. Ronald Reagan in the 1970 census cycle
and Gov. Pete Wilson in the 1990 census cycle. In both instances, the court appointed three
Special Masters, retired judges, to draw the plans. Both sets of Masters appointed Professor
Paul L. McKaskle (a personal friend of mine) as their director and chief counsel.
In my opinion, these Masters produced a model set of redistricting standards which they
applied consistently and fairly, establishing a benchmark of excellence other redistricting
authorities should strive to emulate. See Wilson v. Eu, 823 P.2d 545 (1992) and Legislature v.
Reinecke, 516 P.2d 6 (1973).
29
See Endnote 5.
30
Redistricting of the Texas congressional districts has always been considered a legislative
responsibility under the general legislative power granted by Section 1, Article III, of the Texas
Constitution, according to the Texas Legislative Council.
Article I, Section 4, of the U. S. Constitution provides: "The Times, Places and Manner of
holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or alter such Regulations . . ."
31
Opinion of the Court, Justice Kennedy: "[A] lawful, legislatively enacted plan should be
preferable to one drawn by the courts. . . . [I]f a legislature acts to replace a court‐drawn plan
with one of its own design, no presumption of impropriety should attach to the legislative
decision to act . . . [O]ur decisions have assumed that state legislatures are free to replace
court‐mandated remedial plans by enacting redistricting plans of their own." LULAC v. Perry,
548 U. S. 399, at 416 (2006).
Opinion of the Court, Justice Kennedy: "The task of redistricting is best left to state legislatures,
elected by the people and as capable as the courts, if not more so, in balancing the myriad
factors and traditions in legitimate districting policies." Abrams v. Johnson, 521 U.S. 74, at 101
(1997).
Note: These endnotes are not intended to be exhaustive,
rather intended to be illustrative and representative.