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STATE OF THE STATE

Aaron Chambers

Legal mandates complicate creation of minority political districts

by Aaron Chambers

Race can't be the primary consideration in redrawing political districts. Geographically compact minority communities large enough to elect representatives of their choosing may be entitled to their own districts. And only voting-age residents who are American citizens should be counted.

Mapmakers certainly will have their hands full this year. While trying to redraw the state's legislative and congressional districts, minority districts in particular, they'll have to navigate a long, complex and sometimes contradictory maze of court decisions. Nevertheless, lawmakers who must redraw representational districts will have to comply with those decisions if they wish to satisfy minority interests and keep the new maps out of federal court.

And the pressure is on. The minority population in Illinois — Hispanics especially — grew significantly in the last 10 years. According to 2000 census figures, the number of Hispanic residents grew by 69 percent to 1.5 million, the number of Asians grew 66 percent to 474,000 and the African-American population grew 14 percent to about 1.9 million.

Advocates of these groups already are pushing to account for this growth. They want as many districts as possible where minorities could be elected.


Two U.S. Supreme Court decisions, experts say, provide basic guidelines on redistricting with respect to drawing so-called majority-minority districts.

Six legislative districts and one congressional district are considered Hispanic majority, according to the Mexican American Legal Defense and Educational Fund. The group says it's entitled under the new population figures to twice as many legislative districts.

The National Association for the Advancement of Colored People says the state's lost congressional district shouldn't be a majority-black district. "When you get into majority-minority districts that will have to be redrawn on account of population changes, we believe that if there is any decrease, it should not come from the black population," says Furmin Sessoms, executive director of the group's Chicago South Side branch.

There are far too many federal court rulings on redistricting to absorb in one sitting. But two U.S. Supreme Court decisions, experts say, provide basic guidelines on redistricting with respect to drawing so-called majority-minority districts. And a third case, decided by the Chicago-based 7th U.S. Circuit Court of Appeals, also will weigh heavily in the creation of new political maps.

"Parties confronting the task of legislative redistricting must address a variety of statutory and judicial requirements relating to minority voting rights," says Bryan Schneider, adjunct election law professor at the University of Illinois Law School and former general counsel to House Minority Leader Lee Daniels, an Elmhurst Republican. "These requirements are always evolving and can be difficult to apply in a manner that's consistent with traditional redistricting standards."

Court decisions regarding creation of majority-minority districts have focused largely on the equal protection clause of the Fourteenth Amendment to the U.S. Constitution and the 1965 federal Voting Rights Act.

The Constitution says that no state shall "deny to any person within its jurisdiction the equal protection of the laws." The clause's central mandate, according to the Supreme Court, is racial neutrality in governmental decision-making.

But even with this mandate, some states continued into the 1960s to use such tactics as poll taxes and literacy tests to exclude blacks from voting. The Voting Rights Act was designed to eliminate those tactics.

"As a result of that bill being passed, blacks began to participate more in the electoral process," says R. Eugene Pincham, former Illinois Appellate Court judge and civil rights attorney. "And it changed the political face of America."

Congress amended the federal law in 1982 to prohibit states from imposing qualifications or prerequisites to voting, or standards, practices or procedures that deny or abridge on account of race the right of any citizen to vote.

The Supreme Court considered that revised law in the context of political maps in 1986. The challenge was brought by a group of minority voters

6    May 2001 Illinois Issues http://illinoisissues.uis.edu


against multimember districts created for the North Carolina Senate and House. They alleged that the at-large districts as drawn diluted black citizens' votes in violation of the Voting Rights Act, which prohibits procedures that impair the ability of minorities "to participate in the political process and to elect representatives of their choice."

The high court ruled in Thornburg v. Gingles that a minority group may be entitled to its own district if it can prove three threshold conditions: that it "is sufficiently large and geographically compact to constitute a majority in a single-member district," that it is "politically cohesive" and that "the white majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate."

That would seem to be challenging enough. But then, in 1993, the justices said the equal protection clause demands that, whenever possible, the government should be color-blind, that race alone cannot govern how political districts are drawn. And there was little evidence in the record, the court found in Shaw v. Reno, that congressional mapmakers in North Carolina were motivated by anything other than race.

"Racial classifications of any sort pose the risk of lasting harm to our society," Justice Sandra Day O'Connor wrote for the high court. "They reinforce the belief held by too many for too much of our history, that individuals should be judged by the color of their skin."

The court held that white plaintiff voters had stated a claim under the equal protection clause by alleging that the reapportionment plan was so irrational on its face that it could be understood only as an effort to segregate voters into separate voting districts because of their race and that the separation lacked sufficient justification. And if the voters' claim that the plan was gerrymandered along racial lines went uncontradicted at trial, the court ruled, then the state would need to prove the plan was tailored to meet a "compelling governmental interest."

This state's Chicago-based 4th Congressional District, about as bizarrely shaped as they come, withstood a challenge under Shaw. The federal court ruled the district, which curves like earmuffs and encompasses the city's Hispanic community, was tailored to meet the "compelling state interest" of complying with or remedying a potential violation of the Voting Rights Act.

So this time out, Illinois mapmakers will have to consider the implications of these two, perhaps contradictory top court mandates. "There's a tension between the two because Thornburg says that when those three factors are present you're vulnerable to a racial dilution claim, but Shaw says you can't use race too much," says Michael Kasper, general counsel to the Illinois Democratic Party and adjunct election law professor at The John Marshall Law School.

There's more. Mapmakers will need to examine a 1998 federal appeals court decision that districts should be based only on voting-age resident American citizens. The decision, by the 7th U.S. Circuit Court of Appeals, could hurt the state's burgeoning Hispanic community, which, as the court noted, tends to include larger families with children under 18 and a greater number of noncitizens compared to other minority groups. According to 2000 census figures, the state's Hispanic residents now account for 12 percent of Illinois' population.

Hispanics and blacks have worked together, though. The 1998 decision in Barnett v. City of Chicago involved challenges brought by Latino and African-American voters against Chicago's redistricted ward map. The groups alleged the map, which was redrawn after the 1990 census, impaired their voting power. They said the map was designed to minimize black votes by packing blacks into as few wards as possible, while minimizing Hispanic votes by spreading them throughout several wards.

The 7th Circuit, in an opinion by Chief Judge Richard Posner, ruled that, for purposes of drawing proportional districts, citizen voting-age population was the best basis for determining "equality of voting power" under the Voting Rights Act and case law.

Posner wrote for the three-judge panel that "neither the census nor any other policy or practice suggests that Congress wants noncitizens to participate in the electoral system as fully as the concept of virtual representation would allow."

"The right to vote is one of the badges of citizenship," he wrote. "The dignity and very concept of citizenship are diluted if noncitizens are allowed to vote either directly or by the conferral of additional voting power on citizens believed to have a community of interest with the noncitizens — that being the very premise of the Latinos' claim in this litigation."

Likewise, Posner wrote that arguments favoring virtual representation for children — counting the children in redistricting — were not strong enough to override the Voting Rights Act's express language. "Members of the electorate excludes children."

The 7th Circuit covers Illinois, Wisconsin and Indiana, so its decision is the law in those states. In this state, at least, the decision has complicated redistricting for mapmakers and third parties working to ensure adequate representation for minority groups under the new maps.

That's because the Census Bureau does not plan to release data on citizenship until June 2002. And even when that data is available — long after this year's deadline for drawing new maps — those figures are estimates based on information from households that completed the Census Bureau's long form, which is only distributed to one in six households.

"[The 7th Circuit decision] clearly is the law in terms of dealing with proportionality," says Maria Valdez, senior litigator for the Mexican American Legal Defense and Educational Fund. "The problem is there's no reliable way of figuring out that citizenship number. So we don't intend to figure out a number that's impossible to figure out at this stage. We will be basing our maps on total population and voting-age population."

This much is clear: Remap, and the litigation that may follow, is just getting started.

http://illinoisissues.uis.edu Illinois Issues May 2001   7


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