The redistricting process in the United States can be distinguished from redistricting elsewhere in the world in at least two very fundamental ways: the extent to which the process is overtly and acceptably political – legislators still have the responsibility for drawing electoral districts in most states – and the degree to which the American courts have intervened in the process. These two characteristics of the process are interconnected and have meant that redistricting is often contentious and that the result may be biased in favor of one political party over the other party.
Although redistricting is often driven by partisan concerns, the overall result in the U.S. Congress does not necessarily favor one party because the process is quite decentralized – each of the fifty states is responsible for drawing its own electoral district boundaries. The federal government allocates congressional seats to the states (a process referred to as reapportionment) on the basis of total population, but has only a limited role to play in the redistricting process after this point. For example, the U.S. Congress can pass laws to regulate the process to an extent and has done so on rare occasion – the Voting Rights Act of 1965 is one notable example. On the other hand, the federal courts (as well as the state courts), play a major role in the redistricting process in the United States. They have been called upon to develop redistricting standards, to arbitrate redistricting conflicts, and even to draft redistricting plans [1].
Apportioning Congressional Seats to the States
The number of members of the U.S. House of Representatives is prescribed by law and has been set at 435 members since 1912. Each state is entitled to at least one representative and the remaining members are apportioned among the states in accordance to their relative populations. The population used for this process is the total population (as compared to, for example, the voting age population or the number of registered voters) which is determined by a census that the Constitution requires be taken every ten years.
The apportionment of congressional seats to states is made pursuant to a statutory formula. This population based formula has changed several times over the course of the last two hundred years.
Reporting the Census The U.S. Constitution stipulates that there shall be a national census conducted every ten years. This census is conducted at the beginning of each decade (1990, 2000, 2010). The total population of each state is reported to the President by December 31 in the year of the census. These enumeration figures are then used to allocate congressional seats to the fifty states.
- Formula for Reapportioning Congressional Seats to the States* Over the years, four different apportionment formulas have been used to apportion seats to the states on the basis of population:
- From 1790 to 1840, Congress used a method proposed by Thomas Jefferson, sometimes called the "method of greatest divisors." This method divided the total population by the number of seats and assigned each state its quota, disregarding any fractional remainder. The number of members was adjusted so that every state was awarded exactly the number of seats it was entitled to on the basis of its quota.
- From 1842 to 1850, Congress used a formula proposed by Daniel Webster, sometimes called the "method of major fractions." This method gave an additional member to any state whose quota included a fraction greater than one-half. The number of members was adjusted accordingly.
- From 1850 to 1910, Congress used a formula that had originally been proposed by Alexander Hamilton for the apportionment of 1790. Under that formula, members were first apportioned according to each state's quota, disregarding any fractional remainders, and then any leftover seats were assigned to the states with the largest fractional remainders.
- Between 1911 and 1930, Congress reverted to using the Webster method.
After the 1930 census, in accordance with a report from the National Academy of Sciences, Congress adopted the "method of equal proportions." The formula uses the state's population divided by the geometric mean of that state's current number of seats and the next seat (the square root of n(n-1)). This formula allocates the remainders among the states in a way that provides the smallest relative difference between any pair of states in the population of a district and in the number of people per representative. Congress's choice of this method over the other possible methods has been upheld by the U.S. Supreme Court and it remains in use today.
Drawing Congressional Districts within States
Each state's quota of representatives must be elected from single-member districts of equal population. Who is tasked with drawing the boundaries, and the criteria that guide the process, varies somewhat from state to state.
Boundary Authority
Since the earliest days of the republic, redrawing the boundaries of congressional districts after the decennial census has been primarily the responsibility of the state legislatures. Only a few states assign the responsibility for redrawing congressional district boundaries to a body other than the legislature. Those states that do not permit the state legislature to draw the congressional boundaries usually delegate the task to a commission established solely for the purpose of redistricting.
Final Authority for Redistricting Plans
Except for the few states that use redistricting commissions, the new districts are drawn by the state legislature and enacted in the form of a bill. The enactment of the bill is subject to whatever public hearing requirements may apply in the state. In almost every state legislature, enactment of the bill is an intensely partisan issue, with the majority party attempting to gain a political advantage through the way the lines are drawn. Partisan gerrymandering is thus a fact of life in most American congressional redistricting. Equal population requirements and other "traditional districting principles" are limits the federal courts and state constitutions have imposed to restrain this tendency to gerrymander (draw districts that favor one political party at the expense of the other).
Role of the Courts
When partisan differences between the two houses of a state legislature, or between the legislature and the governor, look like they may prevent the legislature from enacting a redistricting bill in time for the general election, or when some stakeholder in the process believes the plan drawn by the legislators is illegal or unconstitutional, residents may bring suit in state or federal court and ask the court to correct an enacted plan or adopt a plan if none has been enacted. A federal court must defer to a state court, and both must defer to a legislature that is actively engaged in adopting a plan. However, if the legislature fails to meet reasonable deadlines imposed by the court, the court may impose a redistricting plan of its own, to be effective until adoption of a valid plan by the legislature.
Criteria for Redistricting
Each state has its own constitution and laws, and the constitutional requirements for redistricting vary considerably from state to state. What little there is in the way of national law on the subject has been developed over the years in a series of cases decided by the U.S. Supreme Court. The Voting Rights Act, passed by congress in 1965 and amended in 1982, also places some limits on what states are permitted to do when redistricting electoral boundaries.
The federal constraints that have been imposed on the redistricting process include:
- A redistricting plan must create districts that are relatively equal in population
- A redistricting plan must not dilute the strength of minority voters
- A redistricting plan must not be a “racial gerrymander”
- A redistricting plan must take into account traditional redistricting criteria such as compactness, contiguity, and respect for political subdivision lines and communities of interest
The courts have played a major role in the development and interpretation of all five of these redistricting criteria.
Equality of Population Following World War I, as the nation's population began to shift from rural to urban areas, many legislatures lost their enthusiasm for the decennial task of redistricting and failed to carry out their constitutional responsibility. Over time many urban areas were denied the political representation their populations warranted because of this failure to redistrict. For decades, the U.S. Supreme Court declined repeated invitations to enter the "political thicket" of redistricting and refused to order the legislatures to carry out their duty.
In 1962, however, in the case of Baker v. Carr, the Court for the first time held that the federal courts had jurisdiction to consider constitutional challenges to redistricting plans. The next year, in Gray v. Sanders, Justice Douglas declared: "The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing--one person, one vote." In 1964, in Wesberry v. Sanders, the Court held that congressional districts must be redrawn so that "as nearly as is practicable one man's vote in a congressional election is ... worth as much as another's." Finally, in 1983, in Karcher v. Daggett, the Court developed a standard of equality for congressional districts that required them to be mathematically equal, unless justified by some "legitimate state objective." As a consequence of these court decisions, congressional districts within a single state vary minimally (inevitably less than one percentage point) – although there is still considerable population variation across states because every state, regardless of population, is guaranteed at least one congressional seat.
Equality of Opportunity for Minorities Once the courts took the initial step of striking down redistricting plans for inequality of population, Congress instigated the next step. In 1965, it enacted the Voting Rights Act to provide equality of opportunity for racial minorities to vote. Section 2 of the Act prohibited any state or political subdivision from imposing a "voting qualification or prerequisite to voting, or standard, practice or procedure to deny or abridge the right to vote on account of race or color." Section 5 of the Act required a covered jurisdiction to preclear any changes in its electoral laws, practices, or procedures with either the U.S. Department of Justice or the U.S. District Court for the District of Columbia before it could take effect. The Justice Department began to use this new authority to require that redistricting plans be precleared before they could take effect.
In 1980, in City of Mobile v. Bolden, the Supreme Court said that a redistricting plan would not be found to violate the Fourteenth Amendment or Section 2 of the Voting Rights Act unless the plaintiffs could prove that its drafters intended to discriminate against them. Congress was swift to react to this new limitation on how to prove racial discrimination. In 1982, after most of the redistricting plans based on the 1980 census had already been enacted, Congress amended Section 2 of the Voting Rights Act to make clear that it applied to any plan that results in discrimination against a member of a racial or ethnic minority group, regardless of the intent of the plan's drafters.
How were the courts to determine whether a redistricting plan would have discriminatory results? In the 1986 case of Thornburg v. Gingles, the Court set forth three preconditions a minority group must prove in order to establish a violation of Section 2:
- The minority group must be sufficiently large and geographically compact to constitute a majority in a single-member district;
- The minority group must be politically cohesive, that is, it must usually vote for the same candidates; and
- In the absence of special circumstances, block voting by the White majority usually defeats the minority's preferred candidate.
If the minority group establishes these three preconditions, it is entitled to proceed to the next step: proving a Section 2 violation by "the totality of the circumstances." Those circumstances would have to show that the members of the minority group had "less opportunity than other members of the electorate to participate in the electoral process and to elect representatives of their choice."
What did that mean, "less opportunity?" In North Carolina, where the Gingles case arose, it meant that multimember districts where blacks were in the minority and had been unable to elect candidates to office had to be replaced with single-member districts where blacks were in the majority. To the rest of the country, and to the state legislatures and commissions who were going to be drawing new districts after the 1990 census, it meant that wherever there was a racial or ethnic minority that was "sufficiently large and geographically compact to constitute a majority in a single-member district," the state would have to draw a district for them or risk having the plan thrown out.
Being forewarned of the effects of Section 2, drafters of redistricting plans after the 1990 census went to great lengths to draw majority-minority districts wherever the minority population counts seemed to justify it. In states where redistricting plans could not take effect until they had been precleared by the Justice Department, the Justice Department encouraged the state to draw districting plans that created new districts where members of a racial or language minority group (primarily blacks or Hispanics) were a majority of the population. These new "majority-minority" districts were intended to protect the states from liability under Section 2 for failing to draw districts that the minority group had a fair chance to win.
As states drew and submitted their redistricting plans to the Justice Department, they discovered that the Justice Department had little concern that majority-minority districts be compact in shape. A number of states took advantage of this and redrew plans that included districts with rather bizarre shapes. These districts were labeled "racial gerrymanders" by those opposed to their creation.
No Racial Gerrymandering A number of redistricting plans that included oddly shaped districts were attacked in federal court as “racial gerrymanders” that denied white voters their right to equal protection of the laws under the Fourteenth Amendment to the U.S. Constitution. The U.S. Supreme Court ultimately held that districts that did not conform to traditional redistricting principles could be construed as unconstitutional racial gerrymanders. Such districts had to be subjected to "strict scrutiny" to determine whether they were "narrowly tailored" to achieve a "compelling state interest" in complying with Section 2 – and only if they were narrowly tailored could such districts be declared constitutional. As a result of this holding, a number of majority minority districts were struck down by the federal courts because their drafters had not followed "traditional districting principles," such as keeping districts compact, not splitting political subdivisions, and preserving communities of interest. These states then had to redraw the districts to conform to these traditional districting principles.
Traditional Districting Principles For the 2000 round of redistricting, each state was left to decide for itself what "traditional districting principles" might be and how they were to be applied. Federal law does not identify these principles. However, some “redistricting principles” are required by individual state's constitutions, and other redistricting principles have been adopted by state law.
The districting principles used by each state are shown in the table below.
(This table is a copy of a table that appears as Table 5 in Redistricting Law 2000, a publication of the National Conference of State Legislatures, Denver, Colorado, 1999.) They include requiring that districts be composed of contiguous territory, making districts geographically compact, respecting the boundaries of political subdivisions, preserving communities of interest, preserving the cores of prior districts, and avoiding contests between incumbent representatives.
Table: Districting Principles (in addition to Population Equality) Used by Each State
State | Compact | Contiguous | Preserve Political Subdivisions | Preserve Communities of Interest | Preserve Cores of Prior Districts | Protect Incumbents | Voting Rights Act |
Alabama | C, L | C, L | C, L | C, L | C, L | | C, L |
Alaska | L | L | L | L | | | |
Arkansas | | | C, L | | C, L | YC, YL | C, L |
Arizona | C, L | C, L | | | | | C, L |
California | | L | L | | | | |
Colorado | L | | L | L | | | L |
Connecticut | | L | L | | | | |
Delaware | | L | | | | NL | |
Florida | | L | | | | | |
Georgia | | C, L | C, L | | C, L | YC, YL | C, L |
Hawaii | L | L | L | L | | NL | |
Idaho | C, L | C, L | C, L | C, L | | NC, NL | C, L |
Illinois | L | L | | | | | |
Indiana | | L | | | | | |
Iowa | C, L | C, L | C, L | | | NC, NL | C, L |
Kansas | C, L | C, L | C, L | C, L | C | NL | L |
Kentucky | | C | C | C | C | | C |
Louisiana | L | L | L | | L | | |
Maine | L | L | L | | | | |
Maryland | C, L | C, L | C, L | C, L | C, L | YC, YL | C, L |
Massachusetts | | L | L | | | | |
Michigan | L | L | L | | | | |
Minnesota | C, L | C, L | C, L | C, L | | | C, L |
Mississippi | C, L | C, L | C, L | | | | C |
Missouri | C, L | C, L | C | C | C | | C |
Montana | L | L | L | L | | NL | L |
Nebraska | C, L | C, L | C, L | C, L | | NC, NL | C, L |
Nevada | C, L | L | C, L | L | | | C, L |
New Hampshire | | L | L | | | | |
New Jersey | L | C, L | L | | C | | C |
New Mexico | L | L | L | | | | |
New York | L | L | L | | | | |
North Carolina | | C, L | C, L | | C | YC | C, L |
North Dakota | L | L | L | | | | |
Ohio | L | L | L | | | | |
Oklahoma | L | L | L | L | | | |
Oregon | | C, L | C, L | C, L | | NC, NL | C, L |
Pennsylvania | L | L | L | | | | |
Rhode Island | L | | | | | | |
South Carolina | C, L | C, L | C, L | C, L | C, L | YC, YL | C, L |
South Dakota | L | L | L | | | | L |
Tennessee | | L | L | | | | L |
Texas | | L | L | | | | C, L |
Utah | C, L | C, L | C, L | C, L | | NC, NL | |
Vermont | L | L | L | L | | YL | |
Virginia | C, L | C, L | L | L | | YL | L |
Washington | C, L | C, L | C, L | C, L | | NL | |
West Virginia | C, L | C, L | C, L | | | | |
Wisconsin | L | L | L | | | | |
Wyoming | C, L | C, L | C, L | L | | NL | L |
C = congressional districts NC = not congressional districts
L = state legislative districts NL = not state legislative districts
Conclusion
The United States is one of very few democracies in which legislators are still permitted to draw electoral boundaries – most countries have reformed the process and reassigned the task of redistricting to independent, non-partisan commissions. Because legislators are responsible for redistricting, the process is often quite partisan and the results politically biased. But there are signs that this could change in at least a few states: a number of states are currently contemplating the adoption of a commission approach to redistricting.
What is less likely the change, at least in the near future, is the very active role that the courts play in the redistricting process. Subjecting a redistricting plan to court scrutiny is one of the very few options opponents to a redistricting plan have to challenge a plan and very few Americans would advocate giving up this right.
Notes:
[1] The courts may draw district boundaries when a state legislature fails to adopt a plan, or adopts a plan that the court has determined does not satisfy legal or constitutional requirements.
