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Professor Katharine Butler's treatise on redistricting

By Robert S. Sargent Jr.
web posted August 5, 2002

In the March 2002 issue of the Richmond Law Review, there is an article by the Alumni Research Professor of Law at the University of South Carolina, Professor Katharine Inglis Butler, titled: Redistricting in a Post Shaw Era: A Small Treatise Accompanied by Districting Guidelines for Legislators, Litigants, and Courts. The purpose of this article is to help legislators, litigants, and the courts to understand redistricting and it's history, and to help them draw districts that comply with the law. The "Small Treatise" is also invaluable to any person interested in state politics and Constitutional issues.

Ms. Butler takes the reader through all the issues that state legislators must deal with when drawing new districts: From "one person, one vote," to the Civil Rights Act of 1965; from the subsequent amendments to the Civil Rights Act to the Supreme Court cases that gave rulings that directly impacted redistricting; and from preclearance to the conflicts between the Attorney General's rulings and the law as defined by the Supreme Court. These amazingly complex issues are dealt with thoroughly in this treatise.

The problems that the states have in drawing districts mostly come from 3 federal mandates: (1) "One person-one vote", (2) Section 2 of the Civil Rights Act, and (3) Section 5 of the Civil Rights Act. One person-one vote comes from a series of 1960s Supreme Court cases. The Warren Court decided that, even though the federal system mandated unequal representation (2 senators to a state regardless of population; and congressional seats not crossing state lines even when the representation wasn't exactly equal) the states must draw their own lines equally. This means that state governments that used counties as single political units, now must break up a number of them (not always all) to conform to the mandate.

The present version of Section 2 of the Civil Rights Act of 1965 was adopted in 1982. The Supreme Court interpreted its vague language in 1986 in Thornburg v. Gingles. The Court held that multimember districts that diluted minority voters were liable under Section 2, and if a minority group was a majority in a sufficiently compact geographic district, it often needed to be drawn up as a single member district to avoid violating Section 2.

Section 5 of the Voting Rights Act applies to those jurisdictions that had a history of denying the vote to blacks. Most of them, not all, were the old Confederate states. These jurisdictions must first be "precleared" by the District Court of Washington D.C., or by the U.S. Attorney General. To obtain preclearance, the jurisdiction must convince the authorities that any changes made in their redistricting (after each 10 year census) not be for the purpose of discriminating against minorities, called "retrogression" by the Supreme Court in Beer v. U.S. In other words, "The basic mandate of section 5 is to block election law changes that make minority voters 'worse off' than they were under existing law."

Rather than simply examining the new districts for retrogression, Ms. Butler points out that "many viewed the (Justice) Department as abusing its discretion when it conditioned preclearance of redistricting changes after the 1990 census on 'maximization' of the number of majority-minority districts," because "Justice Department lawyers, who applied the most compelling pressure, let it be known that redistricting plans would not be precleared unless covered jurisdictions created as many minority controlled districts as possible."

When North Carolina created two minority-majority districts after the 1990 census, they were so weirdly shaped, (one followed an interstate for 160 miles, sending out tentacles to capture minority voters) that when it was challenged in Shaw v. Reno, the Supreme Court held pure race-based gerrymandering was unconstitutional. Now the states must tiptoe on a line between the Shaw verdict, and the demands of the Justice Dept.

This treatise is written for the professional politician, and not for any politically biased reason, but the massive federal intrusion on what was traditionally a state matter is fascinating for the conservative reader.

The Constitution says The United States shall guarantee to every State in this Union a republican form of government. Period. It was left up to the states to form their own republican government, and this was one of the powers that helped define federalism and the vertical separation of powers (separation of powers between the federal and state governments). Most states patterned their governments after the federal model. For example, counties were made independent political units regardless of population, just as the states were left whole in the federal model. While the concept of one person-one vote sounds good, I believe the people should have the right to decide if this is what they want. It is my guess that people would choose the traditional concept of keeping counties whole. This satisfies the people's identification with their county as a political unit and it limits the state's ability to gerrymander.

The 15th Amendment says The right of citizens of the United States to vote shall not be denied or abridged by the United States of by any State on account of race, color, or previous condition of servitude. Period. While the Voting Rights Act of 1965 was entirely proper in order to force states to abide by the 15th Amendment, the Amendment only guarantees the right to vote, not the right to representation. The federal involvement should be limited to enforcing the original meaning of the 15th Amendment.

There are many other fascinating issues and scenarios dealt with (for example, if a municipality wanted to grow, could annexation be challenged as diluting minority voters, thus violating "retrogression?"), and anyone interested in all aspects of redistricting needs to read this treatise. It may be had simply by requesting it from Professor Butler at KinglisB@aol.com, and it's free! Is this a great country or what?

Robert S. Sargent, Jr. can be reacheed at rssjr@citcom.net.

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