Redistricting Legal Standards
and
Connecticut’s Latino Community 2011
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One Person, One Vote
Constitutional Requirement to Equalize All
Representative Districts Based On Census
 Failure To Do So Debases, Renders
Ineffective The Votes In Over-populous
Districts
 Formula: Ideal Population = Tot.
Population Divided by # of Districts

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One Person, One Vote Example
Tot. Population = 1,000
 # Of Districts = 10
 Ideal Population = 100
 Smallest District = 95 or a 5% Variance
 Largest District = 120 or a 20% Variance
 Total Variance = 25% (25 People Off of
Ideal Population

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One Person, One Vote
Permissible Deviations
Congressional: As mathematically equal as
possible. Karcher v. Dagget (1983): even a
0.7% total variance is unconstitutional
where a lesser variance (0.45%) was
presented and state interests not justified.
 In Congressional Redistricting the Supreme
Court ruled there are no de minimus
population variances that can be avoided
without justification
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One Person, One Vote
Permissible Deviations (cont.)
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State & Local Redistricting: 16.4% Approaches
the Limits of Tolerable Deviations. Mahan v.
Howell (1973)
Rule of Thumb: 10% Rule. Total Deviations
>10% Always Requires Justification
NY: Rodriguez v. Pataki (2002). Even where
Senate districts downstate were overpopulated vs.
under-populated upstate districts, no violation as
long as within maximum population deviation.
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One Person, One Vote
Citizenship Voting Population


Lepak v. City of Irving, TX (Feb 2011) where
CVAP in one of 6 districts is half of CVAP in
others, is City of Irving permitted to draw districts
based on equal population vs. equal numbers of
voters?
Following Chen in 5th Circuit, Garza in 9th, Daly
in 4th Court ruled that it will not intervene in the
political process b/c choice of using Total
Population or CVAP is left to legislature to
decide, thus Total Population is permissible.
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One Person, One Vote
Citizenship Voting Population
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ACS 2005-2009 Data accessible now. Margin of
Error > w/ lower geography. No match to 2010.
72.4% of all Latinos are citizens (2nd Lowest);
65.3% of all Latinos are of voting age (Lowest);
40.7% of all Latinos are CVAP (Lowest).
CA: 60.3% CVAP. TX: 66.5% CVAP. FL: 63.8%
CVAP. NY: 67.3% CVAP. IL: 58.1% CVAP
NYC: 67.5% CVAP. LA: 48.6% CVAP. Houston:
47.3% CVAP. San Antonio: 84.6% CVAP.
Chicago: 60% CVAP.
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One Person, One Vote
Prison Populations
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New York, Delaware, Maryland are planning to
count prisoners in home districts, not where
prisons are located, at least for state/local
redistricting.
Major victory in civil rights/voting rights struggle
Prison counts an issue in virtually every urban
state.
Resource: www.prisonersofthecensus.org
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Federal
Voting Rights Act (VRA)
Section 2: Three Gingles Prongs (1986)
 Totality of Circumstances (Senate
Factors)
 Shaw Claims (1993)

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Section 2:
Three Gingles Prongs (1986)
 Is
minority group large enough and
geographically compact to constitute
a majority in a single member district?
 Is minority group politically cohesive?
 Does white majority vote as a bloc to
defeat the minority preferred
candidate?
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Section 2:
Three Gingles Prongs (1986)
 Underlying
Section 2 Standard:
– The “totality of circumstances” – does the
minority group have less opportunity than
whites to participate and elect candidates of
their choice?
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The Senate Factors
Under Section 2 (1982)
History of official discrimination
in the area of voting
 Racially polarized voting
 History of discrimination in education,
employment, health, housing, etc.
 Discriminatory slating process

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The Senate Factors (cont.)
Overt or subtle racial appeals in political
campaigns
 Extent of election of minorities to public
office
 Significant lack of responsiveness by
elected officials to minority needs

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Shaw Claims (1993)
 Predominant
use of race in
redistricting is unconstitutional
 Scrutiny of:
– District shape and demographics
– Statements by Legislators and staff
– Nature of data used in redistricting
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Shaw Claims (cont.)
 Yet
States can intentionally create
majority minority districts and
otherwise take race into account,
without strict scrutiny, as long as
traditional redistricting criteria are
not subordinated (Justice O’Connor,
Bush v. Vera, 1996)
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Shaw Claims (cont.)

Traditional districting practices:
–
–
–
–

Compactness
Contiguity
Respect for political subdivisions
Protecting Incumbents
Respect for “communities defined by
actual shared interests”
– FL: Lawyer v. DOJ: Senate Dist. In Tampa Bay In Shaw
Challenge. Settled. Low Income Residents of Dist. Regarded by
Court as Community of Interest. NY: Diaz v. Silver Latinos Not.
Asians Are. Black Maybe Not.
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Section 2:
Gingles One

Is minority group large enough and
geographically compact to constitute a
majority in a single member district?
– CITIZENSHIP VAP: Negron v. Miami (11th Cir. 1997);
King v. Bd. Of Elections (7th Cir. Chicago).

Are Crossover Districts Required?
– No. Bartlett v. Strickland (2009). A 39% Black district
created to comply w/ VRA that violated N.Carolina law
prohibiting crossing County lines not required under
Section 2. Blacks must = 50% of single member Dist.
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Section 2:
Gingles One

Are Coalition Districts Required?
– Minority Voters, collectively, must satisfy all Gingles
requirements to have a chance at a Coalition District.
Support found in lower courts in Connecticut, Texas,
California
– Caveat: Supreme Court has yet to directly decide
viability of Coalition Districts

Are Influence Districts Required?
– Section 5: Georgia v. Ashcroft & 2006 VRA fix:
“ability to elect” is the standard.
– Section 2: Page v. Bartels (D-NJ 2001). “Packing” v.
“Unpacking” where “Unpacking” wins.
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Section 2:
Gingles Two

Is minority group politically cohesive?
– CA: Gomez v. Watsonville: Cohesion
Limited to Voting Patterns. But CO:
Sanchez v. Bond: Lay Evid. Shows Latinos
Don’t Share Political Objectives
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Section 2:
Gingles Three

Does white majority vote as a bloc to defeat
the minority preferred candidate?
-- Page v. Bartels Significant levels of white &
Latino crossover votes enabled Blacks to win in
disrtricts w/ <30% Black VAP. Influence Disricts
will “enhance & expand” opportunities for Blacks &
Hispanics to participate, in light of “significant
proof” that Blacks & Latinos vote as a bloc.
Missing? Latino RPV analysis. Missing? Analysis
of Power of Incumbency.
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Section 2:
Totality of Circumstances
 Underlying
Section 2 Standard:
– The “totality of circumstances” – does the
minority group have less opportunity than
whites to participate and elect candidates of
their choice?
» FL: Johnson v. DeGrandy (SCOTUS) No Dilution Where Latinos =
Voting Majorities in # of Dist. Proportional To Share of Pop.
Proportionality Need Not Be Considered On Statewide Basis – Here
Dade County had 50% Latino VAP and of 5 Senate Seats 3 Were
Latino. Of 17 House Seats, 9 Were Latino.
» NY: Rodriguez v. Pataki (2002): Challenge to Bx. County Senate
seats rejected b/c Bronx Latinos were proportionately represented in
NYS Senate.
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Section 2:
Totality of Circumstances (cont)
 LULAC
v. Perry (2006):
– To protect incumbency of Republican Henry
Bonilla, who didn’t enjoy Latino support, Texas
dismantled an emerging Latino majority district
and replaced it with a “trade off” district stretching
from San Antonio to El Paso. Court rules that
promoting traditional redistricting criteria is not
excuse for diluting minority voting strength.
Debate on Majority Minority Districts: Do they
enhance Latino Turnout/Participation? Do they
limit Latino power? Is Substantive Representation
Sufficient?
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Consider:
Proportional Representation
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Cumulative Voting; Limited Voting; Preference
Voting
Usually as Remedy to VRA challenge to Multimember Districts
Port Chester, NY. Court Orders CV. Latino
Voters Rated CV > positively and Plumped their
Votes >often. Luis Marino elected
Illinois – CV as Remedy
Alabama: 2 cases w/ CV as Settlement
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Consider:
State VRA
California State Voting Rights Act as
Model
 Restricts At-large, Multimember Systems
 Provides protections and remedies beyond
VRA
 NY: Assemblyman Peter Rivera proposed
bill to outlaw all At-large districts
 Resource: Joaquin Avila: National Voting
Rights Advocacy Initiative @ Seattle Univ
Law School, avilaj@seattleu.edu
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
Consider:
Non-Citizen Voting
Impossible to debate Latino voting strength
without it
 Usually limited to local municipal / school
board elections
 Tacoma Park, MD; Cambridge, MA;
Chicago School Board elections
 NYC: had it, lost it. Now City Council Bill
 Proposed in Brookline, MA as recently as
Sept. 2010
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Connecticut
151 plus 36. 8/151 and 0/36. 13%. Yet
VRA shuns Proportionality
 No Latino State Senator, similar to NJ
 Significant Latino Growth – 50%. 66%
Latino VAP. CVAP? Puerto Rican growth
significant @ 30%. Dominican?
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Big Picture: 493,000
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For further information
Juan Cartagena
President & General Counsel
LatinoJustice PRLDEF
99 Hudson St. 14th Fl.
New York, NY 10013
(212) 219-3360
jcartagena@latinojustice.org
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