Untitled California Attorney General Opinion ( 1991 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 91-403
of :
: August 9, 1991
DANIEL E. LUNGREN :
Attorney General :
:
RODNEY O. LILYQUIST :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE PETE WILSON, GOVERNOR OF CALIFORNIA, has
requested an opinion on the following questions:
1. Under section 2 of the Voting Rights Act, does the creation of "majority­
minority" districts in a redistricting plan take precedence over all other criteria (including
preservation of incumbencies) used to draw district boundaries except for the "one person, one vote"
requirement?
2. If a district can be created with a racial minority population high enough to
guarantee the election of a candidate of the racial minority community's choosing, does section 2
of the Voting Rights Act require the creation of such a district in a redistricting plan?
3. Do section 2 of the Voting Rights Act and the California Constitution require
that geographically compact racial minority communities of interest not be divided in a redistricting
plan?
4. Under what criteria must a redistricting plan be drawn to comply with the
standards on political gerrymandering set forth in Davis v. Bandemer (1986) 478 U.S. 109?
5. To what extent does the California Constitution impose requirements or
limitations on the drawing of district boundaries in addition to those of federal law?
CONCLUSIONS
1. Under section 2 of the Voting Rights Act, the creation of "majority-minority"
districts in a redistricting plan, for the purpose of preventing minority vote dilution, takes precedence
over all other criteria used to draw district boundaries except for the "one person, one vote"
requirement.
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2. If a district can be created with a racial minority population high enough to
guarantee the election of a candidate of the racial minority community's choosing, section 2 of the
Voting Rights Act generally requires the creation of such a district in a redistricting plan.
3. Depending upon the totality of the circumstances, section 2 of the Voting
Rights Act and the California Constitution generally require that geographically compact racial
minority communities of interest not be divided in a redistricting plan.
4. Under the standards articulated in Davis v. Bandemer (1986) 478 U.S. 109,
a redistricting plan will be invalidated pursuant to constitutional equal protection guarantees, on the
ground of political gerrymandering, only if the plan is intentionally discriminatory and imposes an
actual discriminatory effect.
5. The California Constitution imposes requirements or limitations on the
drawing of district boundaries in addition to those of federal law to the extent of requiring timely
adjustment of district lines, single-member districts, contiguity of districts, consecutive numbering
of districts from north to south, and the geographical integrity of cities, counties and geographical
regions to the extent possible.
ANALYSIS
The five questions presented for resolution concern the Senate, Assembly, Board of
Equalization, and Congressional elections scheduled for 1992. Section 1 of article XXI of the
California Constitution states:
"In the year following the year in which the national census is taken under
the direction of Congress at the beginning of each decade, the Legislature shall adjust
the boundary lines of the Senatorial, Assembly, Congressional, and Board of
Equalization districts in conformance with the following standards:
"(a) Each member of the Senate, Assembly, Congress, and the Board of
Equalization shall be elected from a single-member district.
"(b) The population of all districts of a particular type shall be reasonably
equal.
"(c) Every district shall be contiguous.
"(d) Districts of each type shall be numbered consecutively commencing at
the northern boundary of the state and ending at the southern boundary.
"(e) The geographical integrity of any city, county, or city and county, or of
any geographical region shall be respected to the extent possible without violating
the requirements of any other subdivision of this section."
Accordingly, based upon the 1990 federal census, the Legislature has the constitutional duty to
adjust the boundaries for Senate, Assembly, Board of Equalization, and Congressional districts
during 1991 for the 1992 primary and general elections. (See Legislature v. Deukmejian (1983) 34
Cal. 3d 658, 672.) The primary election for these offices will take place on June 2, 1992. (See Elec.
Code, § 2551.)
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The questions posed not only concern provisions of the California Constitution but
also provisions of the federal Voting Rights Act. Section 2 of the Voting Rights Act of 1965, as
amended in 1982 (codified at 42 U.S.C. § 1973; hereafter sometimes "section 2") now contains the
principal mandate of the Voting Rights Act. It states:
"(a) No voting qualification or prerequisite to voting or standard, practice, or
procedure shall be imposed or applied by any State or political subdivision in a
manner which results in a denial or abridgement of the right of any citizen of the
United States to vote on account of race or color, or in contravention of the
guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b)
of this section.
"(b) A violation of subsection (a) of this section is established if, based on the
totality of circumstances, it is shown that the political processes leading to
nomination or election in the State or political subdivision are not equally open to
participation by members of a class of citizens protected by subsection (a) of this
section in that its members have less opportunity than other members of the
electorate to participate in the political process and to elect representatives of their
choice. The extent to which members of a protected class have been elected to office
in the State or political subdivision is one circumstance which may be considered:
Provided, That nothing in this section establishes a right to have members of a
protected class elected in numbers equal to their proportion in the population."1
With this constitutional and statutory background in mind, we turn to the individual
questions presented.
1. Criteria for Creating District Boundaries
The first question presented is whether the creation of a "majority-minority" district
(one in which a racial or language minority group constitutes a majority of the population) takes
precedence under section 2 of the Voting Rights Act over all other criteria, including preservation
of incumbencies, used to draw district boundaries, except for the "one person, one vote"
requirement. We conclude that the creation of majority-minority districts in order to prevent
minority vote dilution takes precedence over all other criteria used to draw district boundaries,
except for the "one person, one vote" requirement; preservation of incumbency, while not
necessarily impermissible as a basis for redistricting (see Davis v. Bandemer (1986) 478 U.S. 109,
128-129, plur. opn. of White, J.), is not a criterion recognized or mandated by either federal or state
constitutional or statutory law.
Preliminarily, we note the requirement of the equal protection clause of the United
States Constitution with respect to the principle of "one person, one vote." Since Baker v. Carr
(1962) 369 U.S. 186, the United States Supreme Court has developed and enforced the "one person,
one vote" principle in the legislative districting context regarding inequalities in population between
districts. The size of state legislative districts must be "as nearly of equal population as is practical."
1
"[T]he guarantees set forth in section 1973b(f)(2)" are as follows:
"No voting qualification or prerequisite to voting, or standard, practice, or
procedure shall be imposed or applied by any State or political subdivision to deny
or abridge the right of any citizen of the United States to vote because he is a
member of a language minority group."
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(Reynolds v. Sims (1964) 377 U.S. 533, 577.) Congressional districts must represent populations
that are "as mathematically equal as reasonably practical." (Kirkpatrick v. Preisler (1969) 394 U.S.
526, 531.)
Besides the standards specified in article XXI of the California Constitution, various
criteria have been established for drawing district boundaries, including "(a) topography, (b)
geography, (c) cohesiveness, and contiguity, integrity, and compactness of territory, and (d)
community of interests" (Elec. Code, §§ 35000, 35101) and "making districts compact, respecting
municipal boundaries, preserving the cores of prior districts, and avoiding contests between
incumbents" (Karcher v. Daggett (1983) 462 U.S. 725, 740). (See also Grofman, Criteria for
Districting: A Social Science Perspective (1985) 33 UCLA L.Rev. 77, 79-88 (hereafter "Criteria")
[equal population, contiguity, compact districts, districts following local political subunit boundaries
and other "natural" demarcation lines, preserving communities of interest, and coterminality of
house and senate plans].)
In relation to the primary consideration of population equality (the one person, one
vote principle), the other criteria are secondary. (See Karcher v. Daggett, supra, 462 U.S. 725, 739;
Chapman v. Meier (1975) 420 U.S. 1, 23.) Under section 2 of the Voting Rights Act, do these other
criteria also defer to the creation of a district in which a racial or language minority group would
constitute a majority?
In Thornburg v. Gingles (1986) 478 U.S. 30, the United States Supreme Court
examined section 2 and its legislative history. (Id., at pp. 43-46.) It found that in 1982 Congress
amended section 2 to eliminate requiring any "proof that the contested electoral practice or
mechanism was adopted or maintained with the intent to discriminate against minority voters." (Id.,
at p. 44.) Instead, Congress fashioned a "results test" based upon various "factors" and the "totality
of the circumstances" to determine whether "a certain electoral law, practice, or structure interacts
with social and historical conditions to cause an inequality in the opportunities enjoyed by black and
white voters to elect their preferred representatives." (Id., at p. 47; see White v. Regester (1973) 412
U.S. 755, 764; Abrams, "Raising Politics Up": Minority Political Participation and Section 2 of the
Voting Rights Act (1988) 63 N.Y.U. L.Rev. 449, 450-451 (hereafter Political Participation);
Criteria, supra, at p. 98.) As expressed in the Senate Report that accompanied the 1982 amendment,
"[T]he provision requires the court's overall judgment, based on the totality of circumstances and
guided by those relevant factors in the particular case, of whether the voting strength of minority
votes is, in the language of Fortson and Burns, `minimized or cancelled out.'" (Sen.Rep. No. 97­
417, 2d Sess., at p. 29, n. 118 (1982) (hereafter, "Sen.Rep.").)2
While precise standards for maintaining a section 2 claim with respect to single-
member district plans have not been established by the courts, we believe three "preconditions"
based upon the "results tests" are necessary for such claims. These preconditions are: (1)
geographical compactness of the minority group, (2) minority political cohesion, and (3) racially
polarized bloc voting.3 (See Thornburg v. Gingles, supra, 478 U.S. at 50-51; Garza v. County of Los
Angeles (9th Cir. 1990) 918 F.2d 763, 770-771, cert. denied, 111 S. Ct. 681 (1991); see also, e.g.,
Chisom v. Roemer (1991) ____ U.S. ____, 59 U.S.L.W. 4696, 4700; Solomon v. Liberty County,
Fla. (11th Cir. 1988) 865 F.2d 1566, 1571; Un. Latin Amer. Cit. v. Midland Ind. Sch. Dist. (5th Cir.
2
"Fortson" refers to Fortson v. Dorsey (1965) 379 U.S. 433, and "Burns" refers to Burns v.
Richardson (1966) 384 U.S. 73.
3
"`Racial polarization' exists where there is a consistent relationship between [the] race of the
voter and the way in which the voter votes." (Thornburg v. Gingles, supra, 478 U.S. 30, 53, n. 21.)
4. 91-403
1987) 812 F.2d 1494, 1496-1498; Political Participation, supra, at pp. 465-468.) For purposes of
the question presented, we assume that a redistricting authority has identified minority communities
exhibiting these characteristics and would, therefore, create majority-minority districts for the
purpose of avoiding violation of section 2 of the Voting Rights Act. Where section 2 has been
violated, or where the section otherwise would be violated, creation of a majority-minority district
is mandated. (See Garza v. Los Angeles County, supra, 918 F.2d 763, 776 ["The deliberate
construction of minority controlled voting districts is exactly what the Voting Rights Act
authorizes"].)
It is important to note that under the "results test," Congress did not intend to create
a new test for assessing violations of section 2, but intended rather to codify the test articulated by
Justice White in his opinion in White v. Regester, supra, 412 U.S. 755. (See Boyd & Markham, The
1982 Amendments to The Voting Rights Act: A Legislative History (1983) 40 Wash. & Lee L. Rev.
1313, 1417 (hereafter Legislative History), quoting Senator Dole; Sen.Rep., supra, at pp. 2, 27-28,
32, 194; Chisom v. Roemer, supra, 59 U.S.L.W. at 4700.)
Debate in the Senate focused largely on the question whether sections 2's "results
test" could be construed as a mandate for proportional representation. The Senate Report rejected
this concern as unfounded, citing prior judicial applications of the "results test" that upheld multi­
member districts where the totality of the circumstances did not otherwise indicate a denial or
abridgment of the right to vote. (Sen.Rep., supra, at p. 33.) Senator Dole commented: "The focus
of the standard is on whether there is equal access to the political process, not on whether members
of a particular minority group have achieved proportional elections results." (Sen.Rep., supra, at
p. 294.)
We do not believe that section 2 mandates creation of majority-minority districts
merely on a presumption of racially polarized voting. "[T]he results test makes no assumptions one
way or the other about the role of racial political considerations in a particular community. (See e.g.,
Clinton v. Jeffers (E.D. Ark. 1989) 730 F. Supp. 196, 216-217, affd. 111 S. Ct. 662.) If plaintiffs
assert that they are denied fair access to the political process, in part, because of the racial bloc
voting context within which the challenged election system works, they would have to prove it."
(Sen.Rep., supra, at p. 34 (emphasis in original); see also, Thornburg v. Gingles, supra 478 U.S. 30,
46.)
We do not question that race-conscious redistricting is permissible as a remedy for
violation of section 2. (See Garza v. County of Los Angeles, supra, 918 F.2d 763, 776.) Nor do we
question that race-conscious redistricting may be required to prevent a violation of section 2,
considering the totality of the circumstances. However, in light of the legislative history and
decisions construing section 2, we conclude that section 2 of the Voting Rights Act does not
categorically make creation of majority-minority districts the preeminent concern of legislative
district drawing absent other important conditions.
Cases brought under section 2 should not be confused with the pre-clearance
requirements found in section 5 of the Voting Rights Act (42 U.S.C. § 1973c), where the creation
of majority-minority districts in covered jurisdictions4 may take precedence over all other criteria
used to draw district boundaries, except for the "one person, one vote" requirement. Section 5
imposes on covered jurisdictions the burden of proving -- either to the federal district court for the
District of Columbia, or to the United States Attorney General -- that a new "qualification,
4
Four California counties are "covered" under section 5 of the Voting Rights Act: Yuba,
Monterey, Kings, and Merced. (28 C.F.R. part 51, Appendix, p. 582 (1991).)
5. 91-403
prerequisite, standard, practice, or procedure [with respect to voting] does not have the purpose and
will not have the effect of denying or abridging the right to vote on account of race or color or
[membership in a language minority group]." (42 U.S.C. § 1973c (emphasis added).)
The "effects test" of section 5 is not the same as the "results test" of section 2. The
Senate Report states: "By referring to the `results' of a challenged practice and by explicitly
codifying the White standard, the amendment distinguishes the standard for proving a violation
under Section 2 from the standard for determining whether a proposed change has a discriminatory
`effect' under Section 5 of the Act." (Sen.Rep., supra, at p. 68.) The Senate Report notes
specifically that, "Plaintiffs could not establish a Section 2 violation merely by showing that a
challenged reapportionment or annexation, for example, involved a retrogressive effect on the
political strength of a minority group." (Id., at p. 68, n. 264 (emphasis added).)
In deciding whether to "clear" a districting plan for implementation, the Attorney
General will consider, among other things, whether the change in districting will "make members
of [the protected] group worse off than they had been before the change" (28 C.F.R. § 51.54(a)
(1991)); "[t]he extent to which minority voting strength is reduced by the proposed redistricting" (28
C.F.R. § 51.59(b) (1991)); and [t]he extent to which minority concentrations are fragmented among
different districts" (28 C.F.R. § 51.59(c) (1991)). Creation of majority-minority districts in covered
jurisdictions is certainly one way of ensuring preclearance (see, e.g., United Jewish Organizations
et al. v. Carey (1977) 430 U.S. 144), and, by virtue of the supremacy clause of the United States
Constitution (U.S. Const., art. VI, § 2), satisfaction of section 5 preclearance requirements (42
U.S.C. § 1973c) would take precedence over any other criteria in the drawing of district lines, save
for the "one person, one vote" requirement of the equal protection clause.
Returning, then, to the particular question under consideration, we believe that
Carstens v. Lamm (D.Colo. 1982) 543 F. Supp. 68, provides the correct approach in setting forth the
hierarchy of criteria for drawing district boundaries. The one person, one vote principle is "`pre­
eminent,'" followed by the "second constitutional criteria" of protecting minority rights against
"invidious racial discrimination," followed by a third group of criteria such as "(1) compactness and
contiguity; (2) preservation of county and municipal boundaries, and (3) preservation of
communities of interest." (Id., at pp. 81-82.) The Voting Rights Act arises out of the Constitution's
express vesting of power in Congress to enforce the guarantees of the Fifteenth Amendment. (U.S.
Const., Amend. XV, § 2; see South Carolina v. Katzenbach (1966) 383 U.S. 301, 324 [Congress has
full remedial powers to effectuate the constitutional prohibition against racial discrimination in
voting].) The third group of criteria is not based in the federal Constitution. (See Gaffney v.
Cummins (1973) 412 U.S. 735, 752, n. 18 ["Compactness ... has never been held to constitute an
independent federal constitutional requirement for state legislative districts"]). By virtue of the
Constitutions' "supremacy clauses" (U.S. Const., art. VI, § 2; Cal. Const., art. III, § 1), compliance
with section 2 takes precedence over all conflicting state constitutional or statutory requirements.
In answer to the first question, therefore, we conclude that, where necessary to
prevent minority vote dilution, considering the totality of the circumstances, the creation of
majority-minority districts takes precedence over all other criteria used to draw district boundaries
except for the one person, one vote requirement.
2. Creating Majority-Minority Districts
The second question posed is whether section 2 of the Voting Rights Act requires the
creation of a district with a racial minority population high enough to guarantee the election of a
candidate of the racial minority community's choosing, if such a district can be created. We
conclude that it generally does.
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In Garza v. County of Los Angeles, supra, 918 F.2d 763, the Ninth Circuit found that
"[t]o the extent that a redistricting plan deliberately minimizes minority political power, it may
violate both the Voting Rights Act and the Equal Protection Clause of the fourteenth amendment."
(Id., at p. 766.) As previously indicated, the court expressly held that "[t]he deliberate construction
of minority controlled voting districts is exactly what the Voting Rights Act authorizes." (Id., at p.
776.)
We are presented with the possible creation of a district with a high enough minority
population so as to guarantee5 the election of the minority community's candidate of choice. If the
minority community is instead fragmented into two or more districts, the redistricting plan will be
subject to a claim under Garza6 that it "deliberately minimizes minority political power" in violation
of section 2. In Gaffney v. Cummins, supra, 412 U.S. 735, 753, the Supreme Court observed in an
analogous situation that "it is most unlikely that the political impacts of such a plan would remain
undiscovered by the time it was proposed or adopted, in which event the results would be known
and, if not changed, intended." Moreover, as already noted, the 1982 amendment of section 2
eliminated the intent requirement and added the totality of circumstances test in determining whether
minority "members have less opportunity than other members of the electorate to participate in the
political process and to elect representatives of their choice."
As always, then, it is the totality of the circumstances which must be considered in
deciding whether any districting arrangement violates section 2. (Cf., Whitcomb v. Chavis (1971)
403 U.S. 124, 149-153.) Among the factors which the United States Attorney General would
consider in connection with a section 5 preclearance of a redistricting plan is, "whether the change
[affecting voting] is free of discriminatory purpose and retrogressive effect" and "[t]he extent to
which minority concentrations are fragmented among different districts." (28 C.F.R. §§ 51.55, 51.59
(1991).) We believe that these factors could also be properly included among the "totality of
circumstances" considered for the purposes of assessing a violation of section 2.
In answer to the second question, therefore, we conclude that if a district can be
created with a racial minority population high enough to guarantee the election of a candidate of the
racial minority community's choosing, section 2 of the Voting Rights Act generally requires the
creation of such a district.
3. Dividing Minority Communities of Interest
The third question presented is whether section 2 of the Voting Rights Act and the
California Constitution require that geographically compact racial minority communities of interest
(not sufficiently large enough to constitute a majority in any configured district) not be divided when
drawing district boundaries. By the phrase, "geographically compact racial minority community of
interest," we assume that a politically cohesive minority community and the existence of racially
polarized voting is meant. With these assumptions in mind, we conclude that such communities
generally must not be fragmented.
5
We assume that use of the word "guarantee" is a shorthand way of incorporating the three
Gingles criteria (geographical compactness, minority political cohesion, and racial bloc voting) into
the question posed.
6
Thornburg v. Gingles, supra, 473 U.S. 30, expressly did not address "a claim alleging that the
splitting of a large and geographically cohesive minority between two or more ... single-member
districts resulted in the dilution of the minority vote." (Id., at p. 46, fn. 12.)
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In Thornburg v. Gingles, supra, 478 U.S. 30, the court expressly did not consider
"[w]hat standards should pertain to a claim brought by a minority group that is not sufficiently large
and compact to constitute a majority in a single-member district, alleging that the use of a voting
standard, practice or procedure impairs its ability to influence elections." (Id., at p. 46, fn. 12.)
However, four concurring justices in Gingles noted that the reasoning of the majority could easily
support an "ability to influence" claim:
"But the court recognizes that when the candidates preferred by a minority
group are elected in a multimember district, the minority group has elected those
candidates, even if white support was indispensable to these victories. On the same
reasoning, if a minority group that is not large enough to constitute a voting majority
in a single-member district can show that white support would probably be
forthcoming in some such district to an extent that would enable the election of the
candidates its members prefer, that minority group would appear to have
demonstrated that, at least under this measure of its voting strength, it would be able
to elect some candidates of its choice." (Id. at p. 90, n. 1 (conc. opn. of O'Connor,
J.).)
In Garza v. County of Los Angeles, supra, 918 F.2d 763, the lower court was initially
presented with a redistricting plan in which a minority community of interest was geographically
compact but less than a majority of the population in any district. The plan was rejected by the
lower court because it "resulted in dilution of Hispanic voting power in violation of section 2" and
it "intentionally discriminated against Hispanics in violation of Section 2 ...." (Id., at p. 769.) The
Ninth Circuit upheld the lower court's second alternative theory of liability, stating:
"We hold that, to the extent that Gingles does require a majority showing, it
does so only in a case where there has been no proof of intentional dilution of
minority voting strength. We affirm the district court on the basis of its holding that
the County engaged in intentional discrimination at the time the challenged districts
were drawn." (Ibid.)
Accordingly, a geographically compact racial minority community of interest may not be divided
if the division constitutes an intentional dilution of minority voting strength.7
While the issue is not free from doubt, we believe the better approach is to rely on
the "results test" fashioned by Congress in 1982 to determine whether a geographically compact
racial minority community of interest may be divided based upon an examination of the totality of
circumstances. Generally the answer will be "no." (See Carstens v. Lamm, supra, 543 F. Supp. 68,
81-82 ["redistricting plans ... should not fracture a natural racial or ethnic community or otherwise
dilute minority voting strength"]; Goddard v. Babbitt (D.Ariz. 1982) 536 F. Supp. 538, 541 [division
of a small Apache Indian tribe among three congressional districts criticized for having "the effect
of diluting the San Carlos Apache Tribal voting strength and dividing the Apache community of
interest"].)
Section 2 is clearly intended to secure fair access to the political process, unimpaired
because of race, color, or membership in a minority language group. While mere numerical inability
7
With complete reporting of population data, including racial data and voting age information,
contained in the federal census for local geographic units, it would be virtually impossible to claim
that fragmenting a minority community was not "intentional," although possibly not intentionally
discriminatory. (See Gaffney v. Cummins, supra, 412 U.S. 735, 753.)
8. 91-403
to elect a representative may not, standing alone, establish a violation of section 2, that fact should
not render the minority group wholly unprotected under section 2, if the community is otherwise
politically cohesive and there is evidence of majority racial bloc voting. We believe that where
voting is racially polarized, it is especially important that the ability of politically cohesive minority
groups to influence the political process not be diminished.
The California Constitution is consistent with this analysis of the Voting Rights Act.
"The geographical integrity of any city, county, or city and county, or of any geographical region
shall be respected to the extent possible without violating the requirements of any other subdivision
of this section." (Cal. Const., art. XXI, § 1, subd. (e).) The apparent purpose of protecting the
integrity of a geographical region is to respect and foster the common interests of those persons
residing in the region.8 However, by its own terms, the California Constitution cannot be said to
"require" the keeping together of racial minority communities of interest, since it only refers to
respecting the integrity of geographical regions "to the extent possible."
Of course, a geographically compact minority community of interest may be so large
that splitting it would create two or more districts, each having a majority of the population. (See
Clinton v. Jeffers, supra, 730 F. Supp. 196 [redistricting plan violated the Voting Rights Act by
creating only 5 black majority districts since 16 such districts were possible].) On the other hand,
a geographically compact minority community of interest may be so small that it has no possibility
of influencing any elections.9
We conclude, therefore, in answer to the third question that depending upon the
totality of circumstances, section 2 of the Voting Rights Act and the California Constitution
generally require geographically compact minority communities of interest not be divided in
drawing district boundaries.
4. Political Gerrymandering Under Federal Law
The fourth question concerns the practice of political gerrymandering in the drawing
of district boundaries. Under what conditions may political considerations, such as preserving
incumbencies, be consistent with the equal protection clause of the United States Constitution in the
drawing of district boundaries under the standards set forth in Davis v. Bandemer, supra, 478 U.S.
109?
The plaintiffs' claim in Bandemer was that "each political group in a State should
have the same chance to elect representatives of its choice as any other political group." (Id., at p.
124.) In response to this claim, a plurality of the court10 reasoned that a redistricting plan would
8
In 1980, the ballot argument in favor of Proposition 6 (adding article XXI to the California
Constitution) explained that section 1, subdivision (e) would "help protect minority communities
from being carved up just to dilute their votes."
9
However, the San Carlos Apache Tribe that was required to be placed in a single district in
Goddard v. Babbitt, supra, 536 F. Supp. 538, constituted only 1.47 percent of an "ideal"
congressional district. (Id., at p. 540.)
10
The case produced four opinions. A majority of six justices, led by Justice White, held that
political gerrymandering is justiciable. A plurality of four justices, still led by Justice White,
concluded that the Indiana gerrymander itself did not violate the Equal Protection Clause. Justices
Powell and Stevens dissented on this latter point, on the grounds that the Indiana plan should be held
9. 91-403
survive a constitutional challenge based on asserted "political gerrymandering" unless the plan were
proved to be both intentionally discriminatory and actually discriminatory in its effect. (Id. at p.
127.) As respects the first part of the test, the plurality conceded that, "[a]s long as redistricting is
done by a legislature, it should not be very difficult to prove that the likely political consequences
of the reapportionment were intended." (Id. at p. 129.) Therefore, under the Bandemer plurality,
if such a redistricting plan is shown to be intentionally discriminatory on a partisan basis, the plan
cannot survive if it has an actual discriminatory effect.
The plurality in Bandemer offered some broad descriptions of situations which might
render an apportionment scheme constitutionally infirm:
"[U]nconstitutional discrimination occurs only when the electoral system is
arranged in a manner that will consistently degrade a voter's or group of voters'
influence on the political process as a whole. [¶] ... [T]he question is whether a
particular group has been unconstitutionally denied its chance to effectively
influence the political process. ... [A]n equal protection violation may be found only
where the electoral system substantially disadvantages certain voters in their
opportunity to influence the political process effectively. In this context, such a
finding of unconstitutionality must be supported by evidence of continued frustration
of the will of a majority of the voters or effective denial to a minority of the voters
of a fair chance to influence the political process." (Id. at pp. 132-133.)
We find it difficult to distill from Bandemer any discrete criteria which must be met
in order to satisfy implied constitutional limitations on political gerrymandering. However, we do
note that the plurality did not reject Justice Powell's "factors" as totally irrelevant. The plurality
conceded that "evidence of exclusive legislative process and deliberate drawing of district lines in
accordance with accepted gerrymandering principles would be relevant to intent, and evidence of
valid and invalid configuration would be relevant to whether the districting plan met legitimate state
interests." (Id. at p. 141.) Thus, any criteria which depart from those contained in the California
Constitution, which are presumably expressions of valid state interests, would be closely examined.
As mentioned earlier in our response to the first question, preservation of incumbencies11 is not a
criterion recognized or mandated by either federal or state constitutional or statutory law.
In answer to the fourth question, therefore, we conclude that a redistricting plan will
be invalidated pursuant to constitutional equal protection guarantees, on the ground of political
gerrymandering, only if the plan is intentionally discriminatory and imposes an actual discriminatory
effect.
5. California Constitutional Requirements
The fifth question presents the issue of the extent to which the California Constitution
imposes requirements or limitations on the drawing of district boundaries in addition to those of
federal law. We conclude that timely adjustment of district lines, single-member districts,
contiguity, consecutive numbering of districts from north to south, and preserving geographical
unconstitutional. A minority of three Justices, Chief Justice Burger and Justices Rehnquist and
O'Conner, insisted that political gerrymandering should not be justiciable at all.
11
According to Bernard Grofman, an expert for the State of Indiana in Bandemer, "displacing
incumbents of the opposing party is, perhaps, the most important single tactic of contemporary
sophisticated gerrymandering." (Criteria, supra, at pp. 115-116.)
10. 91-403
integrity of any city, county, or city and county, or of any geographical region are additional
requirements under the California Constitution.
Multi-member districts and at-large voting procedures are not "preferred" but are
allowable under federal law if they comply with the "results test" of section 2 of the Voting Rights
Act as described in Thornburg v. Gingles, supra, 478 U.S. 30, 46-51. (See also Rogers v. Lodge
(1982) 458 U.S. 613, 617; White v. Regester, supra, 412 U.S. 755, 765-766; Chapman v. Meier,
supra, 420 U.S. 1, 18-19; Connor v. Johnson (1971) 402 U.S. 690, 692.) The California
Constitution, on the other hand, requires that "[e]ach member of the Senate, Assembly, Congress,
and the Board of Equalization shall be elected from a single-member district." (Cal. Const., art.
XXI, § 1, subd. (a); see art. IV, § 6; art XIII, § 17.)
The California Constitution mandates that "the Legislature shall adjust boundary
lines" for Senate, Assembly, Congressional and Board of Equalization districts in the year after the
national census is taken at the beginning of each decade. (Cal. Const., art. XXI, § 1, emphasis
added.) Given California's tremendous growth over the past decade, particularly in minority
populations, lack of timely compliance with this mandate could well result in maladjusted districts
violating the federal Voting Rights Act and the "equal population" requirement in subdivision (b)
of section 1, article XXI of the state Constitution.
The California Constitution also imposes the conditions that "[e]very district shall
be contiguous," "[d]istricts of each type shall be numbered consecutively commencing at the
northern boundary of the state and ending at the southern boundary," and "[t]he geographical
integrity of any city, county, or city and county, or any geographical region shall be respected to the
extent possible without violating the requirements of any other subdivision of this section." (Cal.
Const., art. XXI, § 1, subds. (c), (d) & (e).) These conditions do not exist under federal law.
In answer to the fifth question, therefore, we conclude that the California Constitution
imposes requirements or limitations upon the drawing of district boundaries in addition to those of
federal law by requiring timely adjustment of district lines in the year after the national census,
single-member districts, contiguity, consecutive numbering of districts from north to south, and
geographical integrity of cities and counties and geographical regions to the extent possible.
*****
11. 91-403