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Redistricting After the 2010 Census

Arturo Michel

Lisa R. McBride

Thompson & Horton LLP

711 Louisiana, Suite 2100

Houston, Texas 77002

www.thompsonhorton.com

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When does it occur? What has to be done?

Whos involved?

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WHEN?

Depends on when your districts elections areheld.

For HISD, next November.

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WHEN?

The Texas Education Code requires school boards toredistrict by the 90th day before the date of the firstregular trustee election at which trustees may

officially recognize and act on the last precedingfederal census August 10, 2011 for theNovember 8, 2011 election date.

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WHEN?

HISDs Special Statute requires the Board toredistrict within 6 months following thepublication of federal census data.

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WHATHAS TO BE DONE?

Demographic analysis

Determine trustee andcommunity input

Establish redistricting criteria

Draw and redraw alternativeplans

Public comment on plans

Adopt a plan

Receive approval from DOJ forplan

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When Will Census Data Useful forRedistricting Be Available?

PL (Public Law) 94-171: this federal statuterequires the census bureau to provide by April 1 ofeach year following a decennial census, the censusdata necessary for redistricting.

However, expect the data for Texas to be releasedin February of2011.

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Data Needed for Redistricting is atthe Block Level

Census block: The smallest unit of census geography for whichpopulation data are counted and reported. Census blocks are delineated bythe Census Bureau and are generally bounded by physical features such asroads, creeks, or shorelines, but also may be bounded by non-visiblefeatures such as city, county, school district, or voting precinct boundaries.

Census block group: A subdivision of a census tract composed of agroup of contiguous census blocks.

Census tract: A unit of census geography delineated by local committeesin accordance with census bureau guidelines for the purpose of collectingand presenting decennial census data. Census tracts are made up of block

groups.T

heir boundaries generally follow visible features, though in somecircumstances their boundaries may follow governmental unit boundariesor other non-visible features. In general, census tracts contain between1,000 and 8,000 inhabitants, with an average population of 4,000.

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TEXAS POPULATIONGROWTH

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Estimated Change in Texas Population

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Change in Ethnic Composition of Texas

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Changes in Population by County

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3 areas of law to consider whenlooking at demographics:

U.S. & TX Constitutions

The Federal Voting Rights Act

State Law

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Equal Protection clause of the 14thAmendment ofU.S. Constitution and Statecounterpart require 2 considerations.

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First Consideration: One person,

One Vote Requirement

SMDs must be drawn with substantiallyequal population

Avoid overpopulated and under populateddistricts

Exact equality of population not required

(ideal district population)

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Substantially equal generally seen as nomore than a 10% deviation between mostpopulous and least populous district

(maximum deviation).

Courts also examine pervasiveness of

deviation (average population deviation).

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Second Consideration: Shaw v.Reno

1993 U.S. Supreme Court case thatlimits way in which race may be

considered

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Under Shaw, generally, race may not bea predominant factor over traditionalredistricting principles.

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Statements by trustees, bizarrely shaped,gerrymandered districts can be evidence ofimpermissible consideration of race.

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Race can be predominant consideration when conditions meet standard test forpermissible consideration of race under 14thAmendment (strict scrutiny test).

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Strict scrutiny requires showing thatracial factors were to further acompelling state interest (preventingdiscrimination) and use of these factors

was narrowly tailored (only to extentnecessary) to accomplish thecompelling interest.

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Meeting the requirements of the federalVoting Rights Act (VRA), 42 U.S.C. 1973c,can be a compelling state interest.

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VRA has 2 relevant parts Section 2

and Section 5

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Section 5 applies to certain geographicpolitical jurisdictions, as identified in thestatute, including all in Texas.

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Section 5 requires federal approval orpreclearance of any change affecting voting before it may be implemented.

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The most common way, because usuallyquicker and less expensive, is preclearanceby the U.S. Department of Justice (DOJ),which is sending written documentation of

the plan and process adopting it(submission) and then receiving letterfrom DOJ stating it does not have objectionsat that time to the plan.

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Alternative method is obtaining a courtorder (declaratory judgment) from aspecially constituted 3-judge federal district

court panel in Washington D.C.

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Standard to obtain preclearance is whethernew plan has purpose or effect of denyingor abridging the right to vote on account ofrace or color.

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U.S. Supreme Court in Miller v. Johnsonmade clear after the last decennialredistricting that an adverse effect,

retrogression, is the standard not thepreviously applied DOJ standard ofmaximizing minority voting strength.

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DOJ Submissions RequiredContents

A statement of the anticipated effect of theredistricting plan

A copy of the order enacting the plan

A copy of the order enacting the previous plan Demographic information showing total

population and voting age population by race andlanguage group

Maps showing new and old SMD boundaries

A statement identifying any past or pendinglitigation regarding the Districts SMDs

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DOJ Submissions SupplementalContents

Number of registered voters by race and languagegroup in each voting precinct

Detailed maps showing the location of votingprecincts, polling places, protected minority

groups, and any geographical features thatinfluenced the selection of boundaries

Election returns relevant to the voting strength ofprotected minority groups

Evidence of public notice of and participation inredistricting process

Names of protected minority group members whoare familiar with the redistricting plan

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Substantive Standards Used bythe DOJ 28 CFR 51.57

Extent to which a reasonable and legitimatejustification exists for the redistricting plan

Extent to which the District followed objectivecriteria and conventional guidelines in adopting

the redistricting plan

Extent to which the District afforded members ofprotected minority groups an opportunity toparticipate in the redistricting plan

Extent to which the District took concerns ofprotected minority groups into account

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Extent to which minorities have been denied an equalopportunity to participate meaningfully in the politicalprocess in the District

Extent to which minorities have been denied an equalopportunity to influence elections and the decision-making of elected officials in the District

Extent to which voting in the District is raciallypolarized and political activities are racially segregated

Extent to which voter registration and electionparticipation of minority voters have been adverselyeffected by present or past discrimination

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Extent to which malapportioned districts deny or abridge the rightto vote of minority citizens

Extent to which minority voting strength is reduced by theproposed redistricting

Extent to which minority concentrations are fragmented among

different districts

Extent to which minorities are over-concentrated in one or moreSMDs

Extent to which available alternative plans satisfying the Districtslegitimate governmental interests were considered

Extent to which the plan departs from the redistricting criteriaarticulated by the school district, ignores factors such ascompactness or contiguity, or displays a configuration thatinexplicably disregards available natural or artificial boundaries

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Section2

of the VRA prohibits a votingstandard, practice or procedure fromhaving the effect of reducing theopportunity of members of a protected

minority group to participate in thepolitical process and to electrepresentatives of their choice.

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Section 2 focuses on a redistricting planseffect on protected minority groups ratherthan the intent of the governing body that

enacted the plan.

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Cracking

Section 2 challenge by members of aconcentrated minority group that aredivided between two or more districts whocontend that the arrangement violatesSection 2 by depriving the group of theability to elect the candidate of their choicethat they would have if left united in asingle district.

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Packing

Section 2 challenge by minority groupmembers who have been placed into one ormore districts in concentrations clearly in

excess of the amount needed to elect thecandidate of their choice preventing thegroup from winning elections in otherdistricts in which the excess minority

voters could have been located.

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Section 2s importance in redistricting is,although the retrogression standard forSection 5 is met, a governmental entity may

still be sued under Section 2; consequently,Section 2 standards must be considered indrawing new plans.

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Under Section 2, courts take a totalityof circumstances approach, but there is

a minimum 3-part test a plaintiff mustmeet.

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Test element #1: The protected minoritygroups voting age population is sufficientlylarge enough and geographically compactso that an SMD can be drawn in which the

minority group is the majority voting agepopulation.

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How large is sufficiently large? 50% or

more of the citizen voting age population.

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Test element #2: The minority groupmust be politically cohesive, meaning itusually votes and acts politically in

concert on major issues.

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Test element #3: The Anglo majorityusually votes to defeat candidates of theminority groups preference (polarized

voting).

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Considering all 3 elements together, it ispossible to combine distinct minority groupsas one to determine whether a SMD can be

drawn where minorities are the voting agemajority, but the combined group must bepolitically cohesive.

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If3-part test met, a court under Section 2then looks at various other factors, e.g.:

history of official discrimination

racially polarized voting

discriminatory electoral practices

discriminatory candidate slating process discrimination in non electoral areas

campaigns with appeals based on race

minority electoral success

responsiveness to minority group needs policy behind existing election system

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State law provides some substantiverequirements which are similar to

federal requirements, e.g.:

SMDs must be compact and contiguous.

SMDs must be as nearly as practicable ofequal population.

Texas Education Code 11.052 (f).

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State law also provides severalprocedural requirements, e.g.:

a SMD cannot cross a county precinct in ISDs withan ADA of 150,000 or more students

requirement to redistrict if data shows existing

districts have a population deviation of more than10% between the most populous and leastpopulous

Texas Education Code 11.052 (a), (f), (i).

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HISDs Special Statute is the sourceof additional requirements:

Trustees in office at the time of redistricting servetheir full term.

If redistricting places the residence of a trustee

whose office is not up for election in November outthe SMD for which the trustee was elected to serve,and the trustee fails to move within the new SMD

boundaries by the 45th day before the election, theBoard must declare the office vacant, and theposition must be filled at the November 2011election.

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DATE ACTIVITY

January/February, 2011 Board selects redistricting attorney and demographer; Board

verifies current plan data to provide to demographer

End of February 2011 Receive federal decennial census data

February/March, 2011 Meetings with Board and Trustees to determine redistricting goals

and preferences; Adoption of criteria, process and timeline

March, 2011 Demographer prepares district map based on census data and

drafts alternative plans

March June, 2011 Trustee meetings with demographic legal team and public on

potential plans

June - August, 2011 Target period for Board to adopt SMD plan; DOJ review period is

60 days with an additional 60 days if it requests more information

(2nd 60 days begins with DOJ receipt of additional information.)

September 7, 2011 Board deadline to order election.

Deadline to file application for place on the ballot

November 8, 2011 Election Day

REDISTRICTING TIMELINE NOVEMBER2011

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What does Board do to meet legalrequirements? Adopt a process and criteria.

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Board Process

Hire a demographic and legal team

Team briefs Board on dates and legal requirements

Board establishes redistricting criteria

Board determines how to solicit public input public hearings are a must

soliciting input from minority leaders is a must

Board sets timeline

Team obtains input from individual trustees

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Process (continued)

Board actively compares and discusses drafts ofplan in terms of meeting criteria and makes finaldecision on this basis

Board reviews written analysis of final plan whichaddresses how criteria met

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Criteria for Drawing SMDs

Use identifiable geographic boundariesfor SMD boundaries when possible

Maintaining communities of interest

such as neighborhoods Use or account for other political

boundaries: County election precincts

Polling places

School attendance zones

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Criteria (continued)

Preserve incumbencies

Adopt SMDs of substantially equal size

Adopt compact and contiguous districts

Avoid retrogression Make decisions on basis other than race whenever

possible to narrowly tailor racial considerations toretrogression issues

Preserve existing SMD boundaries to degreepossible

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CURRENT SMDs

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DISTRICT I

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DISTRICT II

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DISTRICT III

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DISTRICT IV

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DISTRICT V

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DISTRICT VI

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DISTRICT VII

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DISTRICT VIII

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DISTRICT IX

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Whos Involved in the Process?

Board and Superintendent

Administrator point person, often in business orspecial projects department

Active civic minded citizens, including fromdominant minority groups

Elected officials from overlapping jurisdictions

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Thank you!

All information in this presentationis copyrighted by Thompson &

Horton LLP

2010 Thompson & Horton LLP

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Redistricting 12-16-2010