REDISTRICTING
LAW 2000
The information from Census 2000 determined the apportionment of the 435 seats in the United States House of Representatives among the 50 states. It will also prompt the drawing of new boundaries for congressional, state and local election districts.
Constitutional Provision:
Article 1, Section 2, Clause 3 of the United States Constitution provides that the Representatives of the Congress shall be apportioned according to a population count determined in a census of the population every ten years.
(Note: Section 2 of the Fourteenth Amendment eliminated the counting of slaves as “three-fifths” for apportionment and replaced it with “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State….”)
Statutory Law:
Congress has delegated the responsibility for taking the census to the Department of Commerce and the Bureau of the Census in Title 13 of the United States Code. The law directs a count on the first day of April in years 1980, 1990, 2000, etc. Counts for the states must be given to the President by December 31 of the census year.
Each state is guaranteed a seat and the remaining 385 seats are distributed by assigning priority values to each seat is a method adopted in 1941.
Statistical Sampling:
Controversy for Census 2000 has centered on the use of statistical sampling to determine the count. There are two references to sampling in Title 13. Section 141:
(a) directs the Secretary of Commerce to take the decennial census “in such form and content as he may determine, including the use of sampling procedures and special surveys.”
However, Section 195:
(b) directs the Secretary to use sampling methods in fulfilling is duties under Title 13, “[e]xcept for the determination of population for purposes of apportionment of Representatives in Congress among the several States.”
The controversy over sampling led to the passage of the Decennial Census improvement Act of 1991, which called for studies by the National Academy of Sciences on ways to achieve the most accurate census. Based on these studies, the Census Bureau plan for Census 2000 included sampling procedures.
In late 1997 Congress declared the “use of statistical sampling or statistical adjustment in conjunction with an actual enumeration to carry out the census with respect to any segment of the population poses the risk of an inaccurate, invalid, and unconstitutional census.”
The Speaker of the House of Representatives brought suit under this 1997 authorization.
CASE LAW AND LEGAL ISSUES:
Adjusting the Census:
The undercount: The Census is not, and cannot be, 100 percent accurate. The 1990 Census was the first census less accurate than its predecessor. The undercount of 1.6 percent was 50 percent greater than the 1980 undercount (2000 preliminary number is between .96 and1.4 percent).
The undercount is not uniform and misses a disproportionate number of racial and ethnic minorities. The 1990 Census undercount was 4.4 percent for African Americans, 5 percent for Hispanics, 12.2 percent for American Indians on reservations and 0.7 percent for non-Hispanic whites.
The 1990 Census – Wisconsin v. City of New York. In July 1991, the Secretary of Commerce announced there would be no statistical adjustment of the 1990 Census based on post-enumeration surveys. The Secretary cited three reasons:
The United States Supreme Court upheld the decision of the Secretary of Commerce in Wisconsin v. City of New York in 1996. The Supreme Court stated that the Secretary’s decision was valid and that it bore “a reasonable relationship” to the task required by the Constitution. The Court cited broad constitutional discretion and also broad legal discretion under Title 13.
The 2000 Census – U.S. House of Representatives v. U.S. Department of Commerce. In this case the House of Representatives sought to prohibit the use of sampling under the authorization based on Congress in 1997. The Department defended the use of sampling in a reversal of its position in the Wisconsin case.
On August 24, 1998, a three-judge panel ruled unanimously in favor of the House of Representatives and enjoined the Department of Commerce from using statistical sampling for apportionment purposes. The court pointed to specific prohibitions in Title 13. The case was appealed to the United States Supreme Court.
On January 25, 1999 the Supreme Court ruled against statistical sampling by a 5-4 vote. The majority argued that a1976 federal law “directly prohibits the use of sampling in the determination of population for the purposes of apportionment.” The Court did not prohibit the use of adjusted numbers for other uses, such as for the distribution of funding dollars or for reapportionment.
The United States Supreme Court in a 1962 Decision of Baker v. Carr set the standard that legislative districts must be relatively equal in size.
Ideal Population:
To determine the IDEAL population in a single member district plan, the number of legislative districts is divided by the total state population. Based on Georgia’s 2000 population of 8,186,453 the ideal legislative seats would be:
House of Representatives (180 seats): 45,480
Senate (56 seats): 146,187
Deviation:
This is the degree by which a district’s population varies from the “ideal.” This is express as a plus or minus number (absolute deviation) or as a percentage (relative deviation).
Overall Range:
This is the most commonly used measure of population equality or inequality. The range is a statement of the population deviation of the most populous district and the least populous district. Courts may refer to this as the “maximum deviation.”
DIFFERENT STANDARDS FOR CONGRESSIONAL AND LEGISLATIVE DISTRICTS:
There are fundamentally different standards in Congressional and Legislative Districts. The Court has ruled in several cases that Congressional Districts must be as equal in population as practical. As recently as 1997 in a Georgia case, (Miller v. Johnson), the Supreme Court affirmed the principal that “absolute population equality is the paramount objective.”
For state plans the Court has made a distinction. It has held that a plan is not prima facie invalid because of population inequality as long as its overall range is less than 10 percent. Even if the overall range is more than 10 percent, a state may be able to justify the inequality of population by showing that it was necessary to provide representation to political subdivisions.
RACIAL AND ETHNIC DISCRIMINATION:
The Voting Rights Act of 1965 was enacted to end a system of racial and ethnic discrimination involving the exercising the right to vote. The Act accomplished what the fifteenth amendment to the Constitution and other federal statutes had failed to provide – an opportunity for minority voters to participate in the electoral process.
In the 1990s the Department of Justice encouraged states to draw new districts where minorities were a majority of the population. These districts were often not compact in size. In some cases the department refused to preclear a plan unless the state maximized the number of districts.
These plans were attacked in federal court as “racial gerrymanders.” The United States Supreme Court publicly rebuked the Justice Department for its maximization policy in Georgia and held that a racial gerrymander must be subjected to “strict scrutiny” to determine whether it achieved a “compelling state interest.” Many plans, including Georgia’s legislative and congressional districts were struck down because they did not follow traditional districting principles.