The Legal Requirement to Redistrict
Article 8 of the Arkansas Constitution creates the Board of Apportionment and prescribes its duties. It also establishes the number and terms of legislators and requires redistricting of the General Assembly every 10 years after the federal census.
Article 8: Apportionment - Membership in General Assembly
With regard to the General Assembly itself, Article 8 states that there will be 100 members of the House of Representatives, and 35 members of the Senate. Representatives have two-year terms (set out more clearly in Section 2 of Amendment 73 to the Arkansas Constitution) and Senators have four-year terms. Article 8 vests the Arkansas Supreme Court with original jurisdiction to hear lawsuits to compel the Board to perform its duties and to revise an improper plan. A lawsuit to revise a plan must be filed within 30 days of the date the plan is filed with the Secretary of State.
Beyond that, much of Article 8 is either archaic or has been held to be in violation of the United States Constitution. Some of the duties it prescribes to the Board of Apportionment cannot be performed as envisioned by those who drafted Article 8. For instance, regarding the House of Representatives, Article 8 Section 2 provided that "each county … shall have at least one representative; the remaining members shall be equally distributed (as nearly as practicable) among the more populous counties." Similarly, Section 3 provided that "no county shall be divided in the formation" of senate districts. The United States District Court declared these provisions unconstitutional in 1965 (Yancy v. Faubus, 238 F.Supp. 290) as did the Arkansas Supreme Court (Faubus v Kinney, 239 Ark. 443) and 1981 (Wells v. White, 274 Ark. 197). These courts ruled on the basis of United States Supreme Court cases that required that legislative districts be equal in population as nearly as possible. The counties in Arkansas vary widely in population, and it is not possible for each county to have a representative of its own and also comply with the population equality rule. Justice Purtle stated in the Wells case that where it is "obviously necessary to deviate from county lines in order to achieve … equal population among the districts" the Board of Apportionment must disregard county lines.
An archaic part of Article 8 is the deadline for filing a plan. Article 8 imposes an impossible deadline of "February 1 immediately following each Federal census" for the Board of Apportionment to complete its work. While this deadline may have been practical when it was written, in modern times Census data have not been released to the states until February, March or April in the year following the census. The Arkansas Supreme Court recognized this problem and held in 1951 that the February 1 deadline need not be met when census data is not available until after that date. Indeed, since the 1950 redistricting the Board has filed its plan well after February 1, and there has not been a legal challenge invoking the February 1 deadline.
Also, the term "apportionment" as used in Article 8 became outdated when the courts ruled Sections 2 and 3 unconstitutional. These rulings changed the Board’s function from a true "apportionment" board to one that actually "redistricts" the state. The word "apportionment", when used in the legislative context, means the distribution of legislative seats to geographic areas that are entitled to representation. For instance, Congress "apportions" House of Representative positions to the states when it decides after the census the number of Representatives each state will have pursuant to a mathematical formula. This was essentially the task of the Board of Apportionment prior to 1965 when it was required to decide how many representatives each county received. Now, the Board of Apportionment actually redistricts the state - its primary function is to draw legislative districts of roughly equal population from which legislators will be elected.
Article 8, as amended and interpreted by the courts, is the legal requirement for redistricting in Arkansas. Federal statutes and constitutional provisions also establish legal guidelines for redistricting in Arkansas.
Issues in Redistricting
The following discussion outlines some of the legal issues that will affect redistricting Arkansas in 2011.
1. Equal Population
One-person, one vote. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution has been interpreted by the United States Supreme Court to require the States to draw legislative districts so that each is roughly the same in population as the others. In a case decided in 1964, the U.S. Supreme Court stated that the "overriding objective must be the substantial equality of population among the various districts." (Reynolds v. Sims, 377 U.S. 533). This is known as the "one-person, one vote" rule.
The 10% variance rule. In a series of cases following the Reynolds case, the Supreme Court established a 10% threshold variance for legislative redistricting. That is, if a state makes all its districts within 10% of each other in population there is a presumption that such districts pass muster under the one-person, one-vote rule. If the variance exceeds 10% the redistricting plan will be upheld only if the State shows that such a disparity is justified by extraordinary circumstances.
Determining the variance. The Courts have approved the use of a statistical measure called the overall range to determine whether a districting plan meets the population equality standard set out above. In Arkansas, the overall range will be determined as follows. First, the Board of Apportionment will determine the population limits for districts in Arkansas by dividing the number of seats in each house of the General Assembly into the total state population. (Total Population /35 senate seats, and Total Population/100 House Seats) The result is the average district size. After the plan is drawn, the total variance is determined by measuring the percentage difference in population between the largest population district and the average district, and the smallest population district and the average district, and then adding the percentage differences together. This is the overall range.
For example, in the 2001 redistricting of the State Senate, the Board divided 35 (total number of Senate seats) into 2,673,400 (the total population of Arkansas in the 2000 census) to arrive at the average district size of 76,383. After drawing the new districts, the largest Senate district had a population of 80,191 , or 4.99% more than the average district size. The smallest Senate district had a population of 72,699, or 4.82% less than the average district size. Adding 4.99 to 4.82 yields an overall range of 9.81.
2. The Voting Rights Act
Vote Dilution. The Voting Rights Act was enacted in 1965 to prohibit racial discrimination in voting. The courts have applied Section 2 of the Voting Rights Act (42 U.S.C. Section 1973) to the redistricting process. When aggrieved parties challenge a districting plan under Section 2, they typically assert that the districting plan in question dilutes their vote.
Section 1973
3. Equal Protection Clause
Race-based districts. In a series of cases following the 1990’s redistricting, the United States Supreme Court declared unconstitutional a number of Congressional districts in North Carolina, Georgia and Texas. The Court declared that the districts in question were created predominantly for racial reasons and, therefore, were unconstitutional under Section 1 of the Fourteenth Amendment (equal protection clause). In holding the districts unconstitutional, the Court noted that bizarrely-shaped districts, and those which do not follow traditional districting principles such as compactness, contiguousness, communities of interest and political boundaries, are unconstitutional if drawn for the purpose of favoring one race over another, unless there is a compelling state interest in doing so. A majority of the Supreme Court has held that avoiding a violation of Section 2 of the Voting Rights Act provides such a compelling reason to draw race-based districts, but that such districts must be narrowly tailored to that goal.
The Fourteenth Amendment
In Gomillion v. Lightfoot, 364 U.S. 339 (1960), The United States Supreme Court held that it was unlawful to purposefully exclude African-American voters from voting districts under the Fifteenth Amendment to the United States Constitution, which states:
The Fifteenth Amendment
4. Other Issues
Partisan gerrymanders.
A gerrymandered district is one that is purposely drawn to favor a particular party or group. The United States Supreme Court has indicated that districts gerrymandered for partisan purposes may be subject to legal action under the Fourteenth Amendment, but it has been unable to articulate a standard to determine whether a particular district violates the law. See Vieth v. Jubelier 124 S.Ct 1769 (2004). As a result of the severe split on the Supreme Court on this issue there remains a great deal of uncertainty about partisan gerrymanders.
Redistricting Criteria.
The following criteria are among those that have been approved by the courts:
- Equal population within constitutional tolerances
- Compliance with the Fourteenth Amendment and Voting Rights Act
- Geographically contiguous districts
- Geographically compact districts
- Intact counties and cities within districts, to the extent possible
- Minimize splitting of precincts where political subdivisions must be split
- Maintain communities of interest intact within districts to the extent possible
- Continuity of representation and general district geography (maintain cores of existing districts) to the extent possible.
