HomeMy WebLinkAboutRedistricting The City of Miami CommissionMAGUEL DE G R A N D Y ', P A
Redistricting Consultant
REDISTRICTING THE
CITY OF MIAMI COMMISSION
AFTER THE 2010 CENSUS
Redistricting Timeline, Process, and Legal Primer
Miguel A. De Grandy Esq. & Stephen M. Cody, J.D.
800 Douglas Road, Suite 850, Coral Cables, FL 33134.
Telephone: (305) 44.1-7737 • Fax: (305) 443.2616 • www.DeGrandyLaw.com
Table of Contents
Executive Summary 1
Introduction 1
The Need to Redistrict 1.
Redistricting Criteria 1
Process and Timeline 1
Process And Commission Direction 3
Redistricting Standards 3
Direction Regarding Conducting Public Hearings 3
Utilization of Data to Forecast Growth . 4
Number of Draft Plans to Present to the Commission: 4
Current Work and On -Going An.alysis 6
City of Miami 2010 7
. The Population Snapshot 7
Population of Existing Districts 8
The City's Census Challenge 8
Legal Standards for Redistricting 11.
I. Constitutional Mandate to Redistrict and Reapportion 11
Miguel De Grandy, NA Redistricting the Commission
A) Historical Perspective on Redistricting: United States Constitution 12
B) Court Imposed Requirement To Redistrict; Population Differences Amongst Dis-
tricts. 13
1) The Obligation to Redistrict 13
2) Population Deviation 14
II. Race, Language Minorities, and Reapportionment 16
A) Predominant Factor Test; Race -Neutral Justifications 17
B) Compelling Interest and Narrow Tailoring 18
C) Race Neutral / Traditional Redistricting Criteria 19
D) The Federal Voting Rights Act of 1965: 21
Summary 23
?Miguel De Grandy, PA Redisfrioting the Commission
Executive Su.lnma.ry
Introduction
In late March ofithis year, the law firm of Miguel De Grandy, P.A. and Sub -consultant Stephen
Cody were engaged by the City of Miami to develop a new Single -Member District Plan for use
in City Commission elections beginning in the 2013 election. The purpose of this report is to ad-
vise you of the work that we are presently conducting and a suggested timeline and process for
future events. As part of this report, we are also providing you with a basic legal primer to fa-
miliarize you with the legal issues relevant to the Redistricting Process.
The Need to Redistrict
The 2010 Census revealed that the City of Miami has a total population of 399,457, an increase of
10.2% since 2000. The growth, however, has not been uniform across all five of the City's Com-
mission districts. Dividing the City's .population by five produces an "ideal" population for each
district of 79,891. Presently, the district with the largest population, District 2, has 96,080 per-
sons, and is 16,189 persons above the ideal. District 5, on the other hand, only has 67,266 resi-
dents, which is 12,625 below the ideal population. Taken together, that 28,814 person variance
represents a total deviation of 36.06% from the ideal.
Redistricting Criteria
The City Charter only requires that the five members of the City Commission be elected from
single -member districts, but does not contain any other express redistricting criteria. Neither the
Florida Constitution nor Florida Statutes contain explicit redistricting requirements that apply to
municipalities.
The traditional redistricting criteria considered by a body as it reapportions itself includes the
use of natural or man-made geographic boundaries, contiguity, compactness, maintaining the
core of existing districts to avoid voter disruption and confusion, and maintaining communities
of interest together, such as traditional neighborhoods, business districts, and coastal or envi-
ronmentally sensitive areas, among others.
Process and Timeline
The Consultants have begun to gather demographic data and election. information. They have
met with County Elections and Housing Department officials, together with City staff from the
Planning Department and the Community Redevelopment Agency. They have also met with
Miguel De Grandy, l'i\ Redistricting the Cninniissinu
each of the Commissioners to brief them on issues that confront the City during this reappor-
tionment cycle.
There are a number of policy issues that need to be determined by the Commission, including
which redistricting criteria will be emphasized, whether public meetings will be held before any
draft plans are prepared, whether future growth patterns should be factored into the redistrict-
ing, and whether a single draft plan or multiple plans should be prepared.
Given the Commission's direction on these process matters, it is anticipated that the redistricting
of the City of Miami will be completed by the end of November 2012.
Miguel De Grandy, 1'A Redistricting the:Co:nmissio':
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Process An.d Commission Direction
We have requested that the City Manager's Office place an item on the City Commission's
Agenda during the month of June to allow us an opportunity to make a presentation regarding
legal issues relevant to the redistricting process, current population disparity, and to seek policy
guidance from the Commission on several issues. While individual meetings with each Com-
missioner provided us with valuable input, as legal counsel we can only act as directed by the
majority of Commissioners acting as a legislative body. At the June meeting, we will be seeking
policy direction from the Commission on a number of issues.
Redistricting Standards
The Courts have recognized and accepted many redistricting standards, also referred to as "Tra-
ditional Redistricting Principles", that are employed in crafting a redistricting plan. Different
jurisdictions utilize some or all of these standards, and may prohibit use of other standards that
are otherwise accepted by the courts. For example, recently the citizens of the State of Florida
enacted amendments to the Florida Constitution which prohibit the Florida Legislature from cre-
ating a state legislative or congressional plan to be drawn with the intent to favor or disfavor a
political party or an incumbent. These amendments also direct that districts shall not be drawn
with the intent or result of denying or abridging equal opportunity of racial or language minori-
ties to participate in the political process. The amendments further require that districts shall
consist of contiguous territory, be as nearly equal in population as is practicable, that districts
shall be compact and shall — where feasible — utilize existing political and geographical bounda-
ries. (Art. III §§ 20 & 21, Fla. Const.) County and municipal governments are not subject to these
standards. In the "Legal Standards for Redistricting" section set forth below, we provide addi-
tional information regarding redistricting standards for your consideration.
Direction Regarding Conducting Public Hearings
Although citizens' participation in the redistricting process is not constitutionally required, many
jurisdictions have elected to use workshops and public hearing opportunities in order to obtain
input from the electors of the jurisdiction. Workshops prior to crafting a proposed reapportion-
ment plan may be useful to obtain citizen input regarding communities of interest and other
relevant issues regarding why different areas of the City should remain together in one district.
The Commission should decide whether public hearings or workshops will be utilized in this
redistricting process. During the last redistricting cycle, the City Commission directed legal
Miguel De Grandy, rA Redistricting the Cornrniesior:
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counsel to conduct three public hearings: one in the North; one in the Central area; and one in
the Southern area of the city. Approximately 75 residents participated in these hearings.
Utilization of Data to Forecast Growth
During the last redistricting cycle, data from the Planning Department and other sources was
utilized to forecast residential growth in the different areas of the City. This data impacted deci-
sions as to whether to overpopulate or underpopulate particular districts in anticipation of dif-
ferent rates of residential growth within each district. This approach is not constitutionally man-
dated. As will be discussed further below, local jurisdictions do have some discretion to deviate
from the ideal population in each district for a rational purpose. However, the ability to deviate
is limited. We anticipate that a plan that factors in potential residential growth in different areas
of the City will produce a larger overall deviation and require more movement of residents vis-a-
vis the current district lines than a plan which does not factor in. projected growth.
Number of Draft Plans to Present to the Commission:
Once all relevant data is analyzed and legal principles are applied, there may be many different
approaches to drafting a redistricting plan that are constitutional and compliant with the federal
Voting Rights Act (discussed further below). In the case of the City of Miami, the main challenge
will be to rebalance the populations of Districts 2 and 5. Of course, there are different method-
ologies to accomplish this result. The Commission should decide whether to direct legal counsel
to draft one plan for the Commission's consideration or provide two or more draft plans which
may involve different approaches and methodologies to accomplish a rebalancing of population.
Normally, the more alternatives presented, the more difficult it is to ultimately arrive at a final
result. Therefore, your redistricting counsel recommends that the Commission consider direct-
ing counsel to provide either one plan or, at most, two for the Commission's consideration. Of
course, whether one or two plans are presented for the Commission's consideration, it will al-
ways be within the providence of the Commission as the governing body to direct its legal coun-
sel to make any changes that it deems appropriate. In such circumstance, legal counsel will ad-
vise the Commission as to any legal consequences resulting from such proposed change. To be
clear, legal counsel's role is not to make policy decisions, only to present a draft plan and inform
the Commission on legal issues relevant to such plan or any proposed changes.
In summary, below are the issues on which we will be seeking policy direction from the Com-
mission:
Miguel De Grandy, PA Redistrietiuq the Commission
• Whether the districts should be drawn within the deviations permitted by
law or whether they should be drawn to approximate population equality
Whether Districts 1, 3, and 4, whose population deviations are already within
the legally acceptable ranges, should be left in their current configuration or
whether their populations should also be rebalanced.
• Whether District 5 should be intentionally overpopulated and District 2
should be underpopulated within the deviations permitted by law to account
for expected population changes over the next decade.
• Whether the proposed plan should attempt to preserve the core of existing dis-
tricts in order to minimize potential voter confusion.
• Whether the proposed plan should use natural and man-made features, to the
extent possible, as the boundaries of the districts.
• Whether the proposed plan should attempt to keep communities of interest
intact, to the extent that it is feasible.
• Whether a meeting or meetings should be held to gather input on the factors
that the public feels are important before a proposed map is created.
• Whether a single proposed map should be prepared and presented to the
Commission, or whether there should be multiple maps.
Miguel L)e Grandy, PA
Redistricting the Corn niissinu
ti
Current Work and On -Going Analysis
Throughout the last two months, we have been meeting with City and County officials to obtain
information relevant to our work. In that regard, we have met with the Miami -Dade County
Elections Supervisor, Penelope Townsley, and her staff to address several issues, including re-
quest for elections data in a format that will allow for review of relevant issues, including polar-
ized voting patterns. We are also coordinating with Ms. Townsley's staff to ensure a smooth
transition of election plans. Ms. Townsley informed us that the Elections Department will not
conduct the process of re-precincting until 2013. Therefore, the need to minimize the precinct
splits in the current precinct plan is no longer a primary goal. Nevertheless, we will continue to
interface with her staff as we develop a plan or plans, so that the Elections Department can inte-
grate the City's proposed plans into their re-precincting process.
We have also met with the City of Miami Planning Director, Francisco Garcia, and his staff to ob-
tain information regarding zoning applications, permits, MUSP's and other information which
will facilitate forecasting residential growth in the different areas of the City in order to incorpo-
rate this information into our analysis as we seek to balance the populations of each individual
district. We have also met with Peiter Bockweg of the CRA, and Miami -Dade County's Housing
Department Director Greg Fortner to obtain further information in that regard.
We have completed initial meetings with each member of the City Commission. As you know,
during these meetings, we provided preliminary information regarding the process and sought
input from you regarding traditional neighborhoods in your district and other issues relevant to
our analysis.
Our firm and consultant Stephen Cody are continuing the process of data gathering and data
analysis. This process will take several months to complete. At that time, we will have internal
conclusions regarding polarized voting patterns in the community, demographics for each dis-
trict and other information relevant to our work.
Miguel Do (:randy, PA Redistricting the Co+nrnission
6
City of Miami 2010
The Population Snapshot
The United States Constitution provides: "Representation and direct Taxes shall be apportioned
among the several States which may be included within this Union, according to their respective
Numbers .... The actual Enumeration shall be made within three Years after the first Meeting of
the Congress of the United States, and within every subsequent Term of ten Years, in such Man-
ner as they shall by Law direct."
The "actual Enumeration" referenced in the Constitution was conducted on April 1, 2010, giving
a "demographic snapshot" of the nation. The snapshot of the City of Miami revealed that the
population of the City had grown by 36,982 or 10.2% over the past decade to 399,457. The
demographic breakdown of the City's population is shown in the table below.
White
72.6%
Black / African American
19.2%
American Indian / Alaska Native
0.3%.
Asian
1.0%
Native Hawaiian / Other Pacific Islander
(Less than 0.1%)
Two or More Races
2.7
Hispanics are counted in the Census as an ethnic group, rather than a race. In 2010, there were
279,620 Hispanics residing in the City of Miami, representing 70.0% of the City's population. By
contrast, the non -Hispanic White population of the City was only 47,535, which was just 11.9% of
the City's population and for the first Census, made up a smaller percentage of the population
than the Black population.
In addition, people who identified themselves as from the West Indies comprised 21.1% of the
population of District 5, but only 4.99% in District 2, and less than 2% in the remaining districts.
The bulk of the City's Haitian population was also concentrated in District 5, where they made
up 17.46% of the population, but less than 3% in the other districts.
?vliguel De Grandy, 1'A Redistricting the Commission
7
Population of Existing Districts
The map included at the end of this section shows the boundaries of the present City Commis-
sion districts. The face of the map also includes the population of those districts and the number
of residents which either exceeds or is less than the ideal. The table below shows the population
breakdown for each of the five districts.
DIST
��`
xxip
��. x
��POP,ia
201'0
1� b \ry�
ACTUAL;
�D�EUI
.. �€
®Erl
i
'4 `�
InNON k
�B'LACK
HMI=SP[ELACK`W�H1TtE
82.20%
( lii aF ,��,
w%n�NON s
H+[SP
6.34%
o�NON
m HISP
._?-
I
4.54
1
77,741
-2,150
-2.69%
2
96,080
16,189
20.26%
50.40%
12.57%
.31.85
3
77,690
-2,201
-2.76%
86.65%
1.40%
7.21
4
80,680
789
0.99%
89.83%
0.49%
6.66
5
67,266
-12,625
-15.80%
19.84%
71.59%
3.74
TOTAL
399,457
28,814
36.06%
With a total deviation of 36.06%, the present districting plan is malapportioned and could not be
sustained if a court challenge was brought before the next election cycle.
The City's Census Challenge
The City of Miami recently filed a challenge to the results of the 2010 Census with the Census
Bureau, joining five other jurisdictions in Florida challenging parts of the official population
count. It has been reported that city leaders and experts on the Census believe the actual number
of Miami residents is much higher, blaming the low count on chronically under -reporting un-
documented immigrants, and on a couple of new problems unique to Miami: the inability of
Census takers to get past security guards at many of the new condo towers that line Brickell
Avenue, downtown Miami and even Midtown Miami, and a flood of new families that arrived
from Haiti after the January 2010 earthquake and who may have avoided the count out of fear of
reprisals and deportation.
We have not reviewed the City's challenge and offer no opinion of the chances of its ultimate
success. We have attempted to obtain a copy of the challenge filed by the City with the Census
Bureau. However, once a challenge is filed which includes address information, it becomes con -
:Miguel De Grandy, 1't\ Redistricting the Commission
8
fidential under Title 13 of the United States Code and can only be released by the jurisdiction's
submitting authority. (Under the current Census Bureau regulations, the "submitting authority"
for the City of Miami is Mayor Tomas Regalado.) Moreover, we have contacted the Census Bu-
reau and were told that, given the size of the City's challenge, they could not estimate when their
review would conclude.
Nevertheless, the City may proceed with its redistricting while the appeal is pending. Even if
the appeal ultimately has some success and census numbers are changed, it will not affect the
validity of the redistricting plan. See, Dean v. Leake, 550 F. Supp.2d 594 (E.D.N.C. 2008).
In Dean, Plaintiffs had filed an action alleging — among other things — that because the North
Carolina census numbers had been revised after an appeal, the North Carolina General Assem-
bly's had a duty to use the corrected census data in its Redistricting Plan, and failure to do so
violated the Equal Protection Clause of the United States Constitution.
The court in Dean conducted an extensive analysis of federal precedents including Supreme
Court cases and concluded that federal law does not impose, a duty to use corrected census data
for redistricting. Id. at 603. The court also reviewed cases which stand for the proposition that
use of corrected census data may be permissible in limited circumstances. However, the court
cited to several United States Supreme Court precedents which stand for the proposition that the
legislative body has wide discretion in proceeding with the task of redistrictingand that its use
of official census data — even if thereafter corrected — is wholly appropriate. Id. 603-04.
Most of the cases dealing with this issue presented a factual scenario in which census data cor-
rections had already been made. As it regards the City, its appeal is still pending and there is no
set time limitation for the Census Bureau's consideration of the City's challenge. Therefore, be-
cause of the need to allow sufficient time for the County Department of Elections to re -precinct
the City; the fact that the redistricting plan must be enacted before qualifying for the 2013 elec-
tions, and because a delay in proceeding with redistricting may trigger a court challenge, your
redistricting counsel recommends that the Commission continue with the process of redistrict-
ing.
Moreover, although the current timeline envisions final presentation of a redistricting plan for
the Commission's consideration in December — well before the qualifying date for the 2013, elec-
tions — the City must account for the possibility that any enacted plan may be challenged in
court. Therefore, the proper and prudent course of action is to complete redistricting well ahead
of the qualifying dates for the next election to allow sufficient time to resolve any challenge that
may be lodged against the new plan.
Miguel De Grandy, I'A I<<'dishrichin' the Cnmmissinn
9
City of Miami
Commission Districts
2010 Ideal
District
Population:
2
Pop. 96,080
Dev. +16,189 (+20%)
atson
Legal Standards for Redistricting
The law governing redistricting combines a myriad of legal principles from a series of different
sources, including the United States Constitution and Federal Statutes, all as interpreted by a
number of key court rulings. As a result, the rules can often seem confusing and worse, may
even seem contradictory.
A comprehensive exposition of every aspect of the law in this area could easily occupy several
volumes. In this report, we have tried to summarize the important principles of redistricting in
one coherent and, hopefully, easy to understand document. This primer is meant to be a tool to
provide the members of the Commission with a working knowledge of the most important terms
and concepts they will need to effectively participate in enacting a new Single -Member District
Plan.
The rules of redistricting can be summarized with three basic principles:
• Each Commission district must contain a roughly proportional number of
residents within the deviation permitted under case law;
• The City must not engage in racial gerrymandering; and
• The new Commission districts must not dilute votes of minority communi-
ties.
Below we have divided the discussion of these issues into two sections. The first section dis-
cusses the constitutional mandate to reapportion and the acceptable population deviations per-
mitted under the law. The second section deals with the role of race in the redistricting process,
including a discussion regarding.the Federal Voting Rights Act and its interplay with regard to
the Equal Protection Clause of the United States Constitution.
I. Constitutional Mandate to Redistrict and Reapportion
Engaging in redistricting legislative districts is required by the United States Constitution if the
current districts are otherwise malapportioned. In regard to the current status of the City's dis-
tricting plan, its overall deviation of approximately 36% (with the least populated district at 16%
below the ideal population and the largest at 20% above) requires the City to engage in a redis-
tricting process to rebalance the population among the different districts.
Miguel De (Grandy, 1'A Redistricting the Commission
11
A) Historical Perspective on Redistricting: United States Constitution
The concepts of "reapportionment" and "redistricting" are distinct. Reapportionment refers to
the process of proportionally reassigning a given number of seats in the United States House of
Representatives to apportion districts among the different states based on an established for-
mula, or to reformulate a district plan after the number of districts either increases or decreases.
Redistricting refers to the process of changing the boundaries of any given legislative district.
This primer will focus on redistricting. However, it may be beneficial to briefly provide a histori-
cal perspective to give background and context to the City's upcoming process.
The "Great Compromise" of our constitutional system of government was our Founding Fathers'
creation of a bi-cameral legislature, with the House of Representatives comprised of a set number
of members proportionately distributed among the states according to their population. As a
result, the United States Constitution requires a reapportionment of the House of Representa-
tives to distribute each of the House of Representative's 435 seats between the states and to
equalize population between districts within each state. Specifically, Article I, Section 2, CL. 3 of
the United States Constitution states: "Representatives...shall be apportioned among the several
states according to their respective numbers." It further requires that: "[t]he actual Enumera-
tion...be made within three years after the first meeting of the Congress of the United States and
within every subsequent term of ten years in such manner as they shall by law direct." Section II
of the 14th Amendment further states that "Representatives shall be apportioned among several
states according to their respective numbers, counting the whole number of persons in each
state, excluding Indians not taxed."
In furtherance of the constitutional mandate to reapportion, the United States Congress adopted
the Census Act, 13 USC § 1, et. seq. The Census Act delegates the authority to the Secretary of
Commerce to "take a decennial census of population as of the first day of April of such year."
See 13 U.S.C. § 141(a). It further requires that the Department of Commerce complete a popula-
tion tabulation for each state and report to the President of the United States the results by De-
cember 31st of the census year. See 13 U.S.C. § 141(b). The President must then report to Con-
gress, using the information provided by the Secretary, the number of representatives to which
each state would be entitled.
Although the Census was created as a vehicle to determine congressional apportionment, the
data is utilized by virtually every state and local jurisdiction that engages in the process of redis-
tricting.
aiguel De Grandy, PA Redistricting the Commission
12
By April 1st of the year following the Census enumeration, the Secretary of Commerce provides
a detailed population report to the Governor and the Majority and Minority Leaders of each
House of the state legislatures. These reports provide the basis for federal, state and local gov-
ernment decennial redistricting plans. It contains census maps and electronic files breaking
down population data by blocks, census tracts, voting districts, and the corporate limits of
towns, cities and counties. The information also generally contains population totals by race,
Hispanic origin and voting age.
B) Court Imposed Requirement To Redistrict; Population Differences Amongst Districts.
As discussed above, the mandate to reapportion congressional districts is derived from Article I,
Section 2 of the United States Constitution. However, the duty of state, local and municipal gov-
ernments to redistrict arises from the Equal Protection Clause of the 14th Amendment of the
United States Constitution. This distinction is significant because, as will be discussed below,
different rules apply with respect to equalizing population of congressional and state or local
government districting plans.
1) The Obligation to Redistrict
The City Commission is obligated to redistrict based on the judicially recognized principle com-
monly referred to as "one person, one vote". Baker v. Carr, 369 U.S. 186 (1962); Reynolds v. Sims,
377 U.S. 533 (1964). These cases address the practice in several states — as was the case in Baker
and Reynolds — of maintaining districts for legislative offices that were substantially different in
population, such as an urban district containing 250,000 people electing one representative to the
state House of Representatives, and a rural House district in the same state containing only
75,000 people. The Supreme Court concluded that these wide variations among district popula-
tions resulted in each vote in the district with the smaller population carrying more weight than
a vote in the larger district.
In Reynolds, the United States Supreme Court held that the 14th Amendment required that seats
in state legislatures be redistricted on a population basis. In its now famous words, the Supreme
Court concluded:
[T]he basic principle of representative government remains and must remain,
unchanged — the weight of a citizen's vote cannot be made to depend on where
he lives, population is, of necessity, the starting point for consideration and the
controlling criterion for judgment in a legislative apportionment controversies.
... The Equal Protection Clause demands no less than substantially equal state
Miguel Lie Grandy, J'A Redistricting the Commission
3
legislative representation for all citizens, of all places as well as of all races. We
hold that, as a basic constitutional standard, the Equal Protection Clause requires
that the seats in both Houses of a bicameral state legislature must be apportioned
on a population basis. (377 U.S. at 567-688.)
The Court in Reynolds went on to conclude that decennial redistricting was a rational approach to
re -adjust legislative representation to take into consideration population shifts and growth. Id. at
584. The Court declared that any less frequent re -adjustment would be constitutionally suspect.
In Avery v. Midland County, 390 U.S. 474 (1968), the United States Supreme Court applied the
Reynolds decision to local governments. The Court concluded "that the. Constitution permits no
substantial variation from equal population in drawing districts for units of local government
having general governmental powers of the entire geographic area served by the body."
2) Population Deviation
During this redistricting process, you may hear and read repeated references to the concept of
"deviation". In order to determine the degree of deviation of a district one must first divide the
total population of the jurisdiction by the number of districts. The resulting number is known as
the "ideal population". Any variance from the ideal population number is generally referred to
as a deviation. For example, if a district has a plus 20% deviation, it means that the population of
the district is 20% greater than the "ideal" population.
Another way the deviation is discussed is by comparing the lowest populated and highest popu-
lated district to obtain the "maximum deviation", which may also be referred to as the "overall
deviation". For example, in the case of the City of Miami, the most populated district (District 2)
is at a plus 20% deviation, and the most underpopulated district (District 5) is at a minus 16%
deviation. Therefore, the overall deviation of the current plan is 36%.
As briefly discussed above, the requirement to reapportion Congressional districts and redistrict
state and local districts is derived from different sections of the Constitution. As such, there are
different requirements regarding population deviation that flow directly from those different sec-
tions of the constitution.
In Wesberry v. Sander, 376 U.S. 1 (1964), the United States Supreme Court ruled that "the com-
mand of Art. §2, that representatives be chosen 'by the people of the several states' means that.
as nearly as is practicable, one man's vote in a Congressional election is to be worth as much as
the others." 376 U.S. at 7-8. Therefore, as a rule of thumb, the population deviation among the
largest and smallest district in a Congressional Plan (the overall deviation) is usually plus or mi-
tiguel De Grandy, 1'A Redistriclitig the Co?n?ii eiin:
nus a single voter. The recently enacted Florida congressional reapportionment plan reached
that level of population equality, with 22 of the districts having an ideal population of 696,345,
and five districts with one less resident each.
For state legislative and local government districts, the courts have permitted a greater popula-
tion deviation among districts. As the Supreme Court observed in Reynolds, all that is necessary
when drafting state legislative districts (or local government districts; see Avery) is achieving
"substantial equality of population among the various districts". 377 U.S. at 579. The phrase
"substantial equality of population" has come to generally mean that a legislative or local gov-
ernment plan will not be held to violate the Equal Protection clause if the maximum deviation
between the smallest and largest district is less than 10%. Chapman v. Meier, 420 U.S. 1 (1975);
Connor v. Finch, 431 U.S. 407 (1977); Brown v. Thompson, 462 U.S. 835,842-43 (1983) ("Our decisions
have established, as a general matter, that an apportionment plan with a maximum population
deviation under 10% falls within this category of minor deviations."); Voinovich v. Quilter, 507
U.S. 156 (1993).
In at least two cases, Mahan v. Howell, 410 U.S. 315 (1973) and Voinovich, the U.S. Supreme Court
upheld state legislative redistricting plans with a deviation between the smallest and largest dis-
tricts of more than 10%. In Mahan, the U.S. Supreme Court upheld Virginia's House of Delegates
redistricting plan that had a deviation between the smallest and largest districts of 16%. The Su-
preme Court determined that the General Assembly's desire to preserve political subdivision
boundaries justified the deviation among districts. In Voinovich, the Supreme Court reversed a
decision of the lower court holding Ohio's state legislative plan unconstitutional because the
overall deviation of the Ohio House of Representative's was 13.81% and the overall deviation of
the Ohio Senate Plan was 10.54%. The Court determined that preservation of the boundaries of
political subdivisions was a "rational state policy" that in the instant case justified an overall de-
viation in excess of 10%.
These cases were decided based on facts unique to the particular case. However, the most ac-
cepted and best practice is to develop a plan that stays within the "bright line" standards in the
other leading cases (less than 10% overall deviation), and where possible, seek to craft districts as
close to the ideal population as possible.
Deviation between districts should only be considered when there is good cause or a rational ba-
sis and the deviation furthers an important governmental objective such as preserving tradi-
tional neighborhoods, preserving communities of interest and utilizing natural or man-made
boundaries that have historical or other significance.
Miguel De Grandy, PA Redistricting the Commission'
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In the City's previous redistricting process, our firm developed a plan with less than 10% overall
deviation, and the report accompanying the plan made note of the governmental objective and
rational basis for deviations in each of the districts. The plan was never challenged. The same
methodology will be employed during this redistricting cycle.
II. Race, Language Minorities, and Reapportionment
Federal and state case law almost universally recognizes that "reapportionment is primarily the
duty and responsibility of the state through its legislature or other body, rather than the (federal)
court." Chapman v. Meir, 420 U.S. 1, 27 (1975). Therefore, the courts are careful to respect a state's
or local government's redistricting decisions, unless those decisions violate the Constitution or
the law. Voinovich, 507 U.S. at 146. See also Perry v. Perez, 565 U. S. • (2012) . Generally, the
courts have intervened in the redistricting choices of local governments for two reasons: (A) to
cure violations of the Equal Protection Clause of the 14th Amendment; or (B) To remedy viola-
tions of the Federal Voting Rights Act.
After the 1990 Census, the United States Supreme Court was called upon to decide a series of
cases regarding the role of the Equal Protection Clause and race in the reapportionment process.
Hunt v. Cromartie, 526 U.S. 541 (1999); Abrams v. Johnson, 521 U.S. 74 (1997); Bush v. Vera, 517 U.S.
952 (1996); Shaw v. Hunt, 517 U.S. 899 (1996) (Shaw II); Miller v. Johnson, 515 U.S. 900 (1995); John-
son v. De Grandy, 512 U.S. 1997 (1994); Shaw v. Reno, 509 U.S. 630 (1993) (Shaw 1). Generally, in
these cases, the Supreme Court held that when race was the predominant factor in the creation of
a district, the creation of that district was subject to "strict scrutiny" review by the Courts and
would, in most circumstances, violate the Equal Protection Clause.
"Strict scrutiny" is the most stringent legal standard applied to the judicial review of a state act
alleged to violate the Constitution. Strict scrutiny is one of the three basic levels of judicial re-
view applied to allegedly unconstitutional state action. (Rational basis review, intermediate re-
view, and strict scrutiny review.) These three different levels of judicial review are used by the
courts to balance the competing interest of the individual and the state often reflected in the:case
law, and is a recognition of the fact that the protections afforded by the Constitution are not abso-
lute. The courts will apply or a more stringent standard of review depending on how close the
alleged impairment of a constitutional right is to the core of the protections afforded by that
right.
For example, a law that prohibits anyone under 16 years of age from driving an automobile may
create different rights for distinct classes of individuals, but it does not violate the Equal Protec-
tion Clause because the law need only be rationally related to a legitimate state interest of pro -
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tecting the safety of motorists. On the other hand, a hypothetical law that benefits or disadvan-
tages a distinct group of individuals on the basis of race or national origin must usually be nar-
rowly tailored to serve a compelling state interest. In other words, the state must have a very
substantial reason for adopting the law and the scope of the law may not have broader effects
than what is necessary to resolve the circumstances giving rise to the law. Strict scrutiny is a
very high standard that is rarely satisfied.
The Equal Protection Clause, in and of itself, does not prohibit the creation of districts where the
crafters were conscious of the race of the minority of voters in the district. Vera, 517 U.S. at 972.
However, the Supreme Court has clearly held that the Equal Protection Clause does demand the
application of strict scrutiny when race constitutes the principal reason or the predominant factor
for the shape of the particular district.
On the other hand, the Federal Voting Rights Act (discussed in more detail below) prohibits any
practice which "interact[ing] with social and historical conditions, impairs the ability of a pro-
tected class to elect its candidate of choice on an equal basis with other voters." See Voinovich,
507 U.S. at 146; Growe v. Ethison, 507 U.S. 25.
Therefore, reconciling these two competing legal principles, it can be said that a redistricting
plan may be race -conscious to the extent necessary to comply with the Federal Voting Rights Act,
but not race -driven, (where race is the overriding or predominant factor in the creation of a dis-
trict).
A) Predominant Factor Test; Race -Neutral Justifications
The Supreme Court has articulated various formulations of the "Predominant Factor" Test. Leg-
islative action to establish new legislative districts is subject to strict scrutiny if:
Redistricting legislation... is so extremely irregular on its face that it rationally
can be viewed only as an effort to segregate the races for purposes of voting,
without regard for traditional redistricting principles. Shaw 1, 509, U.S. at 642
Race for its own sake, and not other districting principles, was the legislature's
dominant and controlling rationale in drawing its district lines. Miller, 514 U.S.
at916
The legislature subordinated traditional neutral redistricting principles ... to ra-
cial considerations. Miller, 515 U.S. at 916.
Miguel De Grandy, PA ttedistrictin' the Commission
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The state has relied on race in substantial disregard of customary and traditional
redistricting practices. Miller, 515 U.S. at 928 (O'Connor, J., concurring.)
In Hunt v. Cromartie, 526 U.S. 541 (1999), the Court addressed the issue of whether a majority -
minority district may escape strict scrutiny review if the state can establish that the shape of the
district was predominantly the result of non-racial factors, which factors also happen to have a
strong correlation with race. In that case, the district court granted Summary Judgment, despite
the fact that at the hearing the state presented evidence in the form of three affidavits delineating
the state's contention that factors other than race explained the shape of the district; namely, po-
litical gerrymandering to create a strong Democratic district. These affidavits maintained that in
drawing the district "they attempted to protect incumbents, to adhere to traditional redistricting
criteria, and to preserve the existing partisan balance in the State's congressional delegation." Id.
at 549. In addition, the State presented an expert's affidavit analyzing the actual voting patterns
throughout the district and in the areas bordering the district. The expert concluded that race
had a direct correlation with voting patterns and political identification. The Court held that
Summary Judgment was inappropriate because the Legislature's motivation was a material fac-
tual question that was in dispute at the District Court. In order to apply the strict scrutiny re-
view, the Court required a finding that race was the "predominant factor" motivating the Legis-
lature's districting scheme. Id. at 551. The Court recognized that a state may "engage in consti-
tutional political gerrymandering, even if it so happens that the most loyal Democrats happen to
be black Democrats and even if the state were conscious of that fact." Id. (emphasis in original)
Because the legislative body's intent or motivation in adopting a given plan is often the central
issue in a redistricting judicial dispute, it is important that the Commission — as the governing
body of the City - understand the significance of these issues. This is why — prior to commencing
the process of drafting the plans — our firm will seek policy directives from you as to which tradi-
tional redistricting standards you wish to have utilized or emphasized in creation of the new
single -member district plan. Our firm will be conscious of racial and language minority issues
so far as is necessary to determine applicability and compliance with the Federal Voting Rights
Act, but will be guided by policy directives provided by the Commission, utilizing those race -
neutral criteria as the main considerations in crafting the Plan.
B) Compelling Interest and Narrow Tailoring
The U.S. Supreme Court has articulated concrete standards to determine if the states or local
government's redistricting plan survives strict scrutiny review. The Court has found a compel-
ling state interest in either of two circumstances: (i) remedying past discrimination; or (ii) com-
Miguel De Grandy, PA Redistricting the Commission
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plying with the Federal Voting Rights Act. In order for a plan or district that is drawn predomi-
nantly for racial considerations to survive, the jurisdiction must prove the following: (i) that the
discrimination it seeks to remedy is specific and identifiable; and (ii) that it has a "strong basis in
evidence" to conclude that remedial action was necessary before it corrected the problem in this
way.
Even if the state or local government can prove that it has a compelling state interest in drawing
a plan in this manner, courts still require that the remedy (i.e. the majority -minority district) must
be narrowly tailored. In that regard, the jurisdiction must prove that it "employs sound redis-
tricting principles and...the affected racial groups residential patterns afford the opportunity of
creating districts in which they will be in the majority." Shaw 1, 509 U.S. at 657 (internal quota-
tion marks omitted).
C) Race Neutral/Traditional Redistricting Criteria
The courts have encouraged state and local governments to use traditional redistricting princi-
ples in designing legislativdistricts. However, the use of these traditional redistricting princi-
ples is not mandated by the courts. The U.S. Supreme Court has repeatedly stated that a com-
pact and "regular looking" district is not a federal constitutional requirement. Gaffney v. Cum-
mings, 412 U.S. 735, 752 n18 (1973) (A district's "compactness or attractiveness has never been
held to constitute an independent federal requirement.") In Shaw 1, the court acknowledged that
a compact district shape was "not...constitutionally required". 509 U.S. at 647, and in Bush v.
Vera, 517 U.S. 964, the court concluded that "irregular district lines" could be drawn for incum-
bency protection and "to allocate seats proportionally to major political parties". In Justice Ken-
nedy's concurring opinion in Vera, he stated "[djistricts not drawn for impermissible reasons or
according to impermissible criteria may take any shape, even a bizarre one." 517 U.S. at 999.
Therefore, if the shape of the district can only be explained in terms of race, it is constitutionally
suspect and subject to strict scrutiny. However, if the shape of the district can be explained by
traditional redistricting principles or other race -neutral criteria, the courts are unlikely to declare
the district unconstitutional.
As stated above, in our upcoming presentation before the Commission, counsel will solicit policy
direction from the Commission in the form of a Resolution as to what neutral or traditional redis-
tricting principles the Commission wants utilized in crafting the draft redistricting plan for the
Commission's consideration. Some of the factors that courts have generally identified as Tradi-
tional Redistricting principles include:
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• The use of natural or man-made geographic boundaries, i.e. a river, a major
expressway, major roads such as section lines, roads, or the boundaries of
traditional neighborhoods;
• Contiguity;
• . Compactness;
• Maintaining the core of existing districts to avoid voter disruption and confu-
sion; and
• Maintaining communities of interest together, i.e., single-family residential,
high -density residential areas, traditional neighborhoods, business districts,
coastal or environmentally sensitive areas, etc.
During the City's last redistricting cycle, the Commission identified the following as initial policy
considerations that were utilized when drafting the 2002-2003 Redistricting Plan:
• That the draft plan(s) preserve, where possible, the integrity of historical and
traditional neighborhoods;
• That the draft plan(s) maintain - wherever possible - similar boundaries to
ensure that citizens can remain familiar with current voting districts and pre-
cinct locations;
• That the draft plan(s) contain rational and -wherever possible - man-made
and natural boundaries, with the caveat that they should not emphasize
boundaries that have had an unfortunate connotation of segregation in the
past (i.e. the railroad);
• That the draft plan(s) attempt -wherever possible - to "nest" City Commission
District 5 in County Commission District 3 for purposes of providing a more
rational combination of services between the County and the City; and
• That the draft plan(s) attempt - wherever possible - to include whole precincts
into a district. (Note that, as a result of the Election Department's decision not
to re -precinct until 2013, the following current precinct lines may not serve a
useful purpose.)
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Reditricting the Comngisiou
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D) The Federal Voting Rights Act of 1965:
Section 2 of the Federal Voting Rights Act of 1965 prohibits any state or political subdivision from
imposing a "voting qualification or prerequisite to voting or standard, practice or procedure...in
a manner which results in the denial or abridgment of the right to vote on account of race or
color." 42 USC §1973. In 1982, the VRA was amended to include language minorities. Moreover,
in 1982, reacting to the narrow interpretation of the VRA by the U.S. Supreme Court (requiring
proof of discriminatory intent), Congress also amended the VRA to require only proof of a dis-
criminatory result based on the totality of the circumstances.
The U.S. Supreme Court has recognized the manipulation of district lines during a Redistricting
process can be the basis for a claim that the voting strength of politically cohesive minority vot-
ers has been diluted. Vote dilution may happen as a result of fragmenting the minority voters
among several districts where the majority can routinely out -vote the minority voters, unneces-
sarily packing the minority voters into one or a small number of districts to minimize their influ-
ence in the neighboring districts. See Voinovich, 507 U.S. at 146; Growe, 507 U.S. at 25. Thus, Sec-
tion 2 prohibits creation of district lines where the result, "interact[ing] with social and historical
conditions, impairs the ability of a protected class to elect its candidate of choice on an equal ba-
sis with other voters."
In the case of Thornburg v. Gingles, 478 U.S. 30 (1986), the Court held that three threshold condi-
tions are required prior to establishing that a districting plan violates Section 2 of the VRA:
• The size and geographic compactness of the minority population must be such
as to enable the creation of a single -member district in which the minority
group can elect a candidate of its choice;
• The minority population is a politically cohesive group; and
• The majority population votes as block to defeat the minority group's pre-
ferred candidate.
If the plaintiff in a case brought under Section 2 establishes that the challenged district meets
these three criteria, then the court will move on to examine the "totality of the circumstances" to
determine if the practice in question results in the dilution of the electoral power of the minority
population. If the plaintiff fails to establish the existence of the three factors, the court does not
need to go any further and the Section 2 claim fails as a matter of law. See Bartlett v. Strickland,
556 U.S. 1, 7 (2009).
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In order to ensure compliance with the VRA and minimize the probability of legal liability to the
City, an analysis of the Gingles factors will be made throughout the process of crafting a proposed
districting plan. The last redistricting cycle, legal counsel concluded that the Gingles factors were
evident within the City. We will again compile and review data of previous elections and other
factors to determine whether polarized voting is still evident within the City.
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Summ.a.ry
We hope that as you worked your way through this primer, many of your initial ques-
tions about the reapportionment and redistricting process have been answered. Perhaps,
this primer has also stimulated a number of other questions regarding the process. We
look forward to working with you to address these questions. As mentioned before, this
primer is by no means the definitive, exhaustive source on this area of the law, but it is
intended to serve as a reference tool for understanding certain basic redistricting and re-
apportionment concepts. In addition to familiarizing yourself with those basic concepts,
as you proceed in this historic process, it will serve you well to keep in mind the three
basic rules outlined at the beginning of this primer. Those rules form the baseline of what
is needed to ensure that the redistricting plans adopted by the City of Miami can with-
stand judicial scrutiny.
During our upcoming presentation before the Commission, we will provide more demo-
graphic data for your consideration, and will be seeking policy guidance from you that
will become our "rules" for developing the City's new single member district plan. Your
consultants have a wealth of experience and substantive knowledge in this field. How-
ever, our role is to reflect the Commission's policy objectives in the form of a proposed
redistricting plan, and to advise the Commission of the legal consequences, if any, of par-
ticular changes or configurations of the plan. Therefore, we will be looking to the Com-
mission to provide the policy directives that will guide us in preparing and presenting a
final product for your consideration.
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