COMMISSIONERS' COURT AGENDA REQUEST PLEASE FURNISH ONE ORIGINAL AND NINE COPIES OF THIS REQUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT. MADE BY: Fred Henn OFFICE: County Judge MEETING DATE: Apri123, 2001 TIME PREFERRED: 4:00 SUBJECT: (PLEASE BE SPECIFIC) Consider and discuss presentation by outside legal counsel of initial assessment regarding need to redistrict based on 2001 Census data. EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON) NAME OF PERSON ADDRESSING THE COURT: ESTIMATED LENGTH OF PRESENTATION: IF PERSONNEL MATTER -NAME OF EMPLOYEE: Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5, Chapter 551 and 552, Government Code, is as follows: Meeting scheduled for Mondays: THIS REQUEST RECEIVED BY: THIS REQUEST RECEIVED ON: County Jude 5:00 P.M. previous Tuesday. All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has been prepazed for the Court's formal consideration and action at time of Court Meetings. Your cooperation will be appreciated and contribute towards you request being addressed at the eazliest opportunity. See Agenda Request Rules Adopted by Commissioners' Court. KERR COUNTY REDISTRICTING 2001 INITIAL ASSESSMENT Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P. Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P 1700 Frost Bsnk Plva 816 Congress Avenue Austin, 76xas 787042443 (612)4728021 Fu (512)3205638 www.bickerstaR.com April 19, 2001 The Honorable Fred Henneke Kerr County Judge 700 Main Street Kemille, TX 78028 The Honorable H. A. Baldwin Commissioner, Precinct 1 700 Main Street Kerrville, TX 78028 The Honorable Jonathan Letz Commissioner, Precinct 3 700 Main Street The Honorable William Williams Commissioner, Precinct 2 700 Main Street Kemille, TX 78028 The Honorable Larry Griffin Commissioner, Precinct 4 700 Main Street Kemille, TX 78028 Kemille, TX 78028 RE: Initial Assessment considering 2000 Census data Dear Judge and Commissioners: This is the Initial Assessment letter for Kerr County. In it, we present the recently released 2000 Census population and demographic data for the County and, in particular, the commissioner precincts. As we discuss below, according to the 2000 Census data, the County's commissioner precincts aze sufficiently out of population balance that you should redistrict. There are four basic legal principles that govern the redistricting process: (i) the "one person-one vote" (equal population) principle; (ii) Section 5 of the Voting Rights Act, requiring preclearance and applying a "retrogression" standazd to minority group populations in specific districts; (iii) the non-discrimination standard of Section 2 of the Voting Rights Act; and (iv) the Shaw v. Reno limitations on the use of race as a factor in redistricting. These principles are discussed in detail in Attachment C to this letter, which we urge you to read and review carefully. The "One Person -One Vote" Requirement: Why You Should Redistrict The "one person-one vote" requirement of the United States Constitution requires that members of an elected body be drawn from districts of substantially equal population and applies to commissioners courts. Exact equality of population is not required, but a "total maximum deviation" of no more than ten percent in total population between the most populated and the least populated commissioner precincts should be achieved based on the most recent census. April l9, 2001 Page 2 The population and demographics of all of the commissioner precincts are presented in the Initial Assessment Population Tables (Attachment A). These tables show that the total population of Kerr County on April 1, 2000, was 43,653 persons. This represents an increase in population from 36,304 persons on April 1, 1990, which is approximately 20.24 percent. The ideal commissioner precinct should now contain 10,913 persons (total population = 4 precincts). Commissioner Precinct 4 has the largest population, which is approximately 7.24 percent above the size of the ideal precinct. Precinct 3 has the smallest population, which is approximately 10.19 percent below the size of the ideal precinct. The total maximum deviation between the four existing commissioner precincts for Kerr County is 17.43 percent. This total maximum deviation exceeds the standard of 10 percent that historically has been recognized by the courts as the maximum permissible deviation. Accordingly, Kerr County should redistrict to bring its commissioner precincts within the 10 percent range permitted by law. Preclearance under Section 5 of the Voting_Rights Act• The County's retrogression benchmark plan In determining if a plan is retrogressive under Section 5 of the Voting Rights Act (see Attachment C for a discussion of retrogression and Section 5 requirements), the Department of Justice ("DOJ") will compare the newly adopted plan to the current plan considered in the context of the 2000 Census data. This is the retrogression "benchmazk" and is shown in Attachment A, the Initial Assessment Population Tables. DOJ will review any changes made to the existing plan by comparing minority voting strength under the proposed new plan as a whole to that under the benchmazk plan considered as a whole. The tables identify Commissioner Precinct 1 as one where a retrogression analysis may focus: Commissioner Precinct 3 is a majority Anglo precinct, but there is also a substantial percentage of Hispanic population. In this precinct, 57.63 percent aze Anglo and 36.02 percent aze Hispanic, with a corresponding voting age population that is 62.99 percent Anglo and 30.71 percent Hispanic. The data in the Initial Assessment Population Tables in Attachment A, as well as the data in the maps in Attachment B which show the geographic distribution of the primary minority groups, will also be important in assessing the potential for Voting Rights Act Section 2 liability. (See Attachment C for a discussion of Section 2.) County election (voting) precincts Chapter 42 imposes certain requirements on county election precincts. Election precincts may not contain temtory from more than one commissioner precinct, justice precinct, congressional district, state representative district, state senatorial district, wazd line of a city of population 10,000 or more (whether denoted as a `5vard" or otherwise), or State Board of Education district. Election Code § 42.005. This requirement prevails over the April 19, 2001 Page 3 minimum and maximum registered voter requirements of Section 42.006. Election Code § 42.005(b). Finally, election precincts generally may not contain territory that is incorporated in a city of population 10,000 or more and unincorporated temtory. Elcction Code § 42.007. As we draw new commissioner and voting precincts, the County will need to be aware of these requirements. Justice and Constable precincts Ken County's justice and constable precincts aze coterminus with its commissioner precincts. They aze shown in one of the maps in Attachment B. Justice and constable precincts aze not subject to the one person-one vote equal population requirement, but aze nonetheless subject to Section 5 of the Voting Rights Act. (See Attachment C for a discussion of Section 5 requirements). Any changes to these precincts must therefore be precleazed, and DOJ will apply the same retrogression analysis as for commissioner precincts. Once redistricting criteria are adopted, and the Court gives instructions about how it would like plans to be developed considering this Initial Assessment and the applicable legal standazds, we can begin to develop plans for your consideration. We hope this Initial Assessment discussion has been helpful to you and that it will guide the Kerr County Commissioners Court as it executes the redistricting process. If at any time you have questions concerning any aspect of that process, please feel free to call me. Sincerely, P ~dington C. Robert Heath Encl. 4 { _ •~. s ~ ~ 9 ~ ~, , p f d } i i,, !. ~h. 4. . ~w.\ ~~ ` Y h,Y r~ 7," '~:. ;_ i ,~ .i. ;Y .. ~. ... .,_. i. Kerr County Commissioner Precincts - Preliminary Demographic Report - 2000 Census Total and Voting Age Population ~,rN Hispanic % Non-Hispanic Non-Hispanic Non-Hispanic Non-Hispanic District Persons Deviation of Total Anglo % Black % Asian % Other Population of Total of Total of Total of Total Population Population Population Population 1 10;650 -2.41% 14.33% 82.78% 1.13% 0.72% 1.04% 2 11,499 5.37% 17.79% 79.47% 1.00% 0.40% 1.34% 3 9,801 -10.19% 36.02% 57.63% 4.37% 0.53% 1.46% 4 11,703 7.24% 10.69% 87.16% 0.64% 0.32% 1.20% Totals 43,653 19.13% 77.43% 1.69% 0.49% 1.26% Ideal Size = 43,653/4 = 10,913 per district. Total Maximum Deviation =[7.24%- (-10.19%)] = 17.43% Hispanic % Non-Hispanic Non-Hispanic Non-Hispanic Non-Hispanic District Total VAP" of Total VAP Anglo % Black % Asian % Other °/. of Total VAP of Total VAP of Total VAP of Total VAP 1 8,453 11.68% 85.79% 0.99% 0.64% 0.90% 2 8,802 14.10% 83.47% 0.72% 0.47% 1.25% 3 7,349 30.71% 62.99% 4.38% 0.54% 1.37% 4 9,156 8.02% 90.18% 0.42% 0.28% 1.10% Totals 33,760 15.46% 81.41°/a 1.50% 0.48% 1.15% 'Voting Age Population 4/20/01 Kerr County Commissioner Precincts -Initial Assessment - 2000 Census Total and Voting Age Population . %arom xaTaW %aTOtll %ol TOYI American % a Tobl Amnrlun %aTaal Hawaiian- MaWa1Mn XaTOMI Two or %aTOla District Parsons Ideal Size Deviation Hlapanic HloWnk Anglo M,MO Black eUC. IMbn A%ian A.kn PseMC Pecmc Otnsr ou,.r Moro TwewMeU PoPUI•Nen PepuMtlon PepalMlon Indian Pepulabn PoWkaon lalantler bbMrt Populalun PoWMaon popultlion 1 10.850 10,913 -2.41% 1,526 14.33% 8.818 82.78% 120 1.13% 32 0.30% 77 0.72% 4 0.04% 7 0.01% 74 0.89% 2 11,499 70,913 5.37% 2.418 17.79% 9,138 78.47% 115 1.00% 35 0.30% 48 OAO% 0 0.00% 0 0.00% 119 103% 3 9,801 10,913 -10.19% 3,530 38.02% 5,8/8 57.63% 428 4.37% 49 0.5096 52 0.53% 4 0.04% 2 0.02% 88 090% / 71,703 10,913 7.21% 1,25i 10.88% 10,200 87.18% 75 0.84% 38 0.32% 37 0.32% 8 0.07% 9 0.08% 85 073% TOtaIS 43.653 8,353 19.17% 33,802 77.43°k 738 1.69% 154 0.35% 212 0.49% 16 0.04% 12 0.03% 366 0.84% Ideal Size • 43.85314: 10,913 per diattld. Hawaiian- zoI TOUT Two or D9tfIQ Tofa VAP' Hlepanle xaT°°I Bbpank An91o VAP xaTOnl Blsek VAP xaTnul American xaroul Amatlun Asian VAP xara.l Am vAp Paclflc k.w.ll.n- PxiM Otner VAP xnl TOUI gbnvnv xaTa.l °r MOn VAP VAP A„yIe VAP 9leck vAP Intllan VAP inaUn vqP n Islander VAP vqP VAP t•I.naervAP 1 8,153 987 71.88% 7,252 85.79% 8• 0.99% 27 0.32% 5! 0.84% 2 0.02% 1 0.01% 48 051% 2 8,802 1,241 74.10% 7,347 83.47% 83 0.72% 34 0.39% 41 0.47% 0 000% 0 0.00% 78 088% 3 7,319 2,257 30.71% 4,829 82.99% 322 4.36% 41 0.58% 40 0.51% 3 004% 2 0.03% 55 075% 4 9,158 731 8.02% 8,257 90.18% 38 0.42% 32 0.35% 28 0.28% 6 0.07% 7 0.06% 58 081% TOtals 33,760 5,219 15.46% 27,466 81.41°h 507 1.50% 134 0.40%. 161 0.48°k 11 0.03% 10 0.03°/ 233 0.69% Notlnq Ape Population 420/01 ATTACHMENT B MAPS Co,Y, fnissionrr precincts N n/ Road Tees format. L.L.P. 11 dnd prOJe~~ MCO tlNlmal deg SmdeY~ P°pan, Ke+e•' & McDaniel, . tlaCive Cnsus Bureau. _., ceurces: county CAmm s~on~ Imes Obtamed from Ti9at/Ilne flies, U.S. ~ (fit Prepared 8Y ~ BlckerSCa _. r..tures Obtelned from the 2004 I. I ~, 1 I, :1 ~- I: 1 r Kerr County 1991 Commissioner Court Precincts Percent Hispanic By 2000 Census Block G 4 ~' .6 `' J '~! ~~~ ~ ® /1 ~ ~! j /- ~ ' ~i/ .~~~ i ~ <" 3 ~~ B Q 0 Inset 1 3 a ~~ 0 Percent Hispanic 0% - 20% 20% - 40% - 40% - 50% - 50% - 60% - Over 60% District Outline 0 3 0 3 Miles ®Prepared By: elckerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P. Data Sources: County rAmmissloner lines obtained from the Texas Legislative Council antl projected Into decimal degrees format. Roatls, water and other features obtained from the 2000 Tiger/line Flies, U.S. Census Bureau. 2 ~' N Apr12001, Ke~_IArCC Kerr County 1991 Commissioner Court Precincts Percent Black By 2000 Census Block -~. ~,~ Q -- 3 0 ~, Percent Black 0% - 20°/a O 20% - 40% - 40°/a - 50% _ 50% - 60% - Over 60% District Outline 2 0 2 4 Miles ® Prepared By: Bickers[aff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P. Da[a Sources: County Commissioner lines obtained from the Texas Leglslacive Counci and projected Into decimal degrees format. R°ads, water and other features obtained from Me 2000 Tiger(Ilne files, U.B. Census Bureau. P V" 2 8 6 ~ N ~1 April 2001, KerrCo 1 N ® Prepared By: Bfckerstaff, Heath, Smiley, Pollen, Kever & McDaniel, L.L.P. Data Sources: Justice of the Peace Ilnes obtained from the Texas Legislative Council and pra]ected Into decimal degrees format. .. .... e.. _ ~~._ noon iin....)Itnn Rlae 1 f S (.Pr1~ .~ r a .. ... '4 „,., ~ ` .. o, > .yfl: i t s ~'' a s~~~;a?.t :~' ,y ..•. .,. _`. .y, .~ .. ".~ ,;a t .. '. ~.. LEGAL PRINCIPLES GOVERNING THE REDISTRICTING PROCESS There are four basic legal principles that govern the redistrictim~ process (i) the'bne person-one vote" (equal population) principle; (ii) Section 5 of the Voting Rights Act, requiring preclearance and applying a "retrogression" standard to minority group populations in specific districts; (iii) the non-discrimination standard of Section 2 of the Voting Rights Act; and (iv) the Shrnv r'. Beau limitations on the use of race as a factor in redistricting. The terminology of redistricting is very specialized and includes terms that may not be familiar, so we have included as Attachment D to this Initial Assessment letter a brief glossary of many of the commonly-used redistricting terms. The "One Person -One Vote" Requirement: Whv You Redistrict The "one person-one vote" requirement of the United States Constitution requires that members of an elected body be drawn from districts of substantially equal population. This requirement applies to the single-member districts of "legislative" bodies such as commissioners courts and other entities with single-member districts such as school boards or city councils. Exact equality of population is not required for local political subdivisions. However, they should strive to create districts that have a total population deviation of no more than ]0 percent between their most populated district and the least populated district. This 10 percent deviation is usually referred to as the "total maximum deviation." It is measured against the "ideal" or target population for the governmental entity based on the most recent census. A governing body is therefore required to determine whether the populations of its single-member districts (including county commissioners' precincts) are within this 10 percent balance based on 2000 Census population data. If the population deviation among the districts exceeds the permissible ]0 percent total maximum deviation, the entity must redistrict, that is, redraw the boundaries of the individual districts so that the total populations of all the new districts are within the permissible 10 percent limit. A hypothetical example of how deviation is calculated is given in Attachment D. The Department of Justice (DOJ) is the federal agency charged with reviewing and approving changes in election law, such as redistricting, under Section 5 of the Voting Rights Act. DOJ will use the Census Bureau's recently released population data for the 2000 Census in its analysis of redistricting plans -the so-called "PL 94-171" data. Although several types of population data are provided in the PL 94-171 files, redistricting typically is based upon total population. Official census data should be used unless the governmental entity can show that better data exists. The court cases that have dealt with the question have made it clear that the showing required to justify use of data other than census data is a very high one, impossibly high at a time so close to the release of new census data. As a practical matter, therefore, we recommend that entities use the 2000 Census data in their redistricting processes. We have based the Initial Assessment on PL 94-171 total population data, the relevant data are summarized in Attachment A. In the redistricting process, each governmental entity will use a broad spectrum of demographic and administrative information to accomplish the rebalancing of population required by the one person-one vote principle. The charts provided with this report not only show the total population of the entity but also give breakdowns of population by various racial and ethnic categories for the entity as a whole and also for each single-member district. Censuseeo¢raphv These single-member population data are themselves derived from population data based on smaller geographical units. The Census Bureau divides geography into much smaller units called "census blocks." In urban areas, these correspond roughly to city blocks. In more rural areas, census blocks may be quite large. Census blocks are also aggregated into larger sets called "voting tabulation districts" or "VTDs" which often correspond to county election precincts. For reasons concerning reducing the potential for Shaw r. Reno-type liability, discussed below, we recommend using VTDs as the redistricting building blocks where and to the extent feasible. In largely rural counties this may not be feasible. Census racial and ethnic categories For the 2000 Census, the Census Bureau recognized 126 racial and ethnic categories and collected and reported data based on all of them. Many of these categories include very few persons, however, and will not therefore have a significant impact on the redistricting process. The charts that accompany this report include only eight racial and ethnic categories that were consolidated from the larger set. All of the population of the entity is represented in these charts. These eight categories are the ones most likely to be important in the redistricting process. The 2000 Census listed six racial categories. Individuals were able to choose a single race or any combination of races that might apply. Thus, there are potentially 63 different racial combinations that might occur Additionally, the Census asks persons to designate whether they are or are not Hispanic. When the Hispanic status response is overlaid on the different possible racial responses, there are l26 possible different combinations. The Census tabulates each one separately If this information is to be usable, it must be combined into a smaller number of categories (of course, having the same overall population total). For purposes of determining the preclearance retrogression benchmark, discussed below, DOJ indicated in a guidance document issued on January 18, 2001 that it would use the following rules for determining Hispanic and race population numbers from the 2000 Census data, for purposes of performing the retrogression analysis -- persons who selected "Hispanic" are categorized as Hispanic, no matter what race or races they have designated, all others will be classified as non-Hispanic of one or more races, e.K., Hispanic-White and Hispanic-African-American are both classified as Hispanic; -- persons who did not select "Hispanic" and who designated a single race will be classified as members of that race, e.€~., White, African-American, Asian, etc. -- persons who did not select "Hispanic" and who designated themselves as belonging to a single minority race and as White will be classified as members of the minority race, e.g., Asian+White will be classified as Asian, and -- persons who did not select "Hispanic" and who designated themselves as belonging to more than one minority race will be classified as "other multiple race;" e.,q., White+Asian+Hawaiian or African-American+Asian. This category is expected to be small. We will also consider data called "voting age population" (or "VAP") data. It is similarly classified in eight racial and ethnic categories. This information is provided for the limited purpose of addressing some of the specific legal inquiries under the Voting Rights Act that are discussed below Voting age population is the Census Bureau's count of persons who identified themselves as being eighteen years of age or older at the time the census was taken (i.e., as of April 1, 2000). In addition to this population and demographic data, the entity will have access to additional information that may bear on the redistricting process, such as county road miles, facility locations, registered voter information, incumbent residence addresses, etc. Section 5 Of The Votin¢ Rights Act -Preclearance Preclearance required Section 5 of the Voting Rights Act. 42 U.S.C. § 1973c, requires all "covered jurisdictions" identified in the applicable Department of Justice (DOJ) regulations to "preclear" any changes to voting standards, practices, or procedures before they may become legally effective. Texas is a "covered jurisdiction," so all local governments in the state, as well as the State itself, are required to preclear any voting change, including their redistricting plan. This includes changes to any single-member district lines (including county commissioner precinct lines). Section 5 applies not only to changes in single- member district lines but also to changes in election precincts and in the location of polling places. Counties should note that Section 5 applies not only to commissioners' precincts, but also to JP and Constable precincts, even though these latter are not subject to the one person- one vote requirement (since these are not "representative," i. e., "legislative" officials). Preclearance may be accomplished in either of two ways' by submitting the redistricting plan to DOJ for its examination and preclearance, or by obtaining a declaratory judgment from a special three-judge federal district court in the District of Columbia. Submission to DOJ is by far the most common, and usually substantially faster and less expensive, method chosen for obtaining preclearance. "Retrogression" as the preclearance standard The legal standard applied to a preclearance review under Section 5 is whether the new plan has the purpose or the effect of denying or abridging the right to vote on account of race or color. This Section 5 standard has been called the "retrogression" standard. In effect, it considers whether a minority group has been made worse off by a proposed change in voting standards, practices or procedures, such as a redistricting plan. The Supreme Court has made clear in Miller v. Johnson (one of the .Shnx v. Keno line of cases) that DOJ is not to apply other standards in addition to this retrogression standard in determining whether to preclear new districting plans, as DOJ did in the 1991 round of redistricting. The inquiry to be conducted by DOJ is thus only whether the new plan has the purpose or effect of causing retrogression with respect to a minority group DOJ's retrogression benchmark To determine if retrogression exists, it is necessary to compare a proposed plan against a benchmark. Typically, that benchmark is the local subdivision's prior district boundary plan, but considered using the rrew 2000 Census population and demographic data. DOJ will compare the proposed new redistricting plan as a whole to the benchmark plan as a whole in conducting its retrogression analysis. Voting age population data ("VAP") is the Census Bureau's count of persons who identified themselves as being eighteen years of age or older at the time the census was taken (r. e., as of April 1, 2000). Since the retrogression inquiry focuses on whether a minority group's overall voting strength has been reduced, and VAP is a more direct measure of voting strength than total population, VAP should be considered in the retrogression analysis, not just total population. (Citizen voting age population ("CVAP") data is not available at this time.) In combination with a balanced consideration of the other applicable redistricting criteria, the entity's governing body will need to consider the effects of any changes to the benchmark measures that its proposed plan produces. In adjusting the boundaries of districts, the burden will be on the governmental entity to show DOJ that a less retrogressive plan could not reasonably have been drawn. 66 Fed. Reg. 5413 That should be a goal of the redistricting process, while still considering the other redistricting criteria that are adopted. Section 2 Of The Voting Rights Act - No Discrimination Against Minority Grouas Section 2 of the Voting Rights Act forbids a voting standard, practice or procedure from having the effect of reducing the opportunity of members of a covered minority to participate in the political process and to elect representatives of their choice. In practical terms, this non-discrimination provision prohibits districting practices that, among other things, result in "packing" minorities into a single district in an effort to limit their voting strength. Also, "fracturing" or "cracking" minority populations into small groups in a number of districts, so that their overall voting strength is diminished, can be discrimination under Section 2. There is no magic number that designates the threshold of packing or cracking. Each plan must be judged on a case-by-case basis. Although the Supreme Court has recently made clear that the Department of Justice may not consider Section 2 standards in determining whether to preclear a redistricting plan under Section 5, that does not mean that the governmental body should ignore Section 2 requirements. They apply to the redistricting plan regardless of whether DOJ may legally consider them in the preclearance analysis. Failure to consider them adequately could risk litigation brought by a member of a protected minority group, or even by DOJ There is some possibility that the inability of DOJ to include Section 2non-discrimination standards as a preclearance requirement in this 2001 round of redistricting could result in DOJ bringing more Section 2 cases than it did after the 1991 round of redistricting. The Supreme Court has defined the minimum requirements for a minority plaintiff to bring a Section 2 lawsuit. There is athree-pronged legal test the minority plaintiff must satisfy: a showing that (1) the minority group's voting age population is numerically large enough and geographically compact enough so that a district with a numerical majority of the minority group can be drawn (a "majority minority district); (2) the minority group is politically cohesive, that is, it usually votes and acts politically in concert on major issues; and (3) there is "polarized voting" such that the Anglo majority usually votes to defeat candidates of the minority group's preference. Thornburg v. tingles, 478 U. S. 30 (1986). In the federal appellate Fifth Circuit, which includes Texas, the minority population to be considered is citizen voting age population. In certain cases, a minority group may assert that Section 2 requires that the governmental body draw a new majority minority district. The governing body must be sensitive to these Section 2 standards as it redistricts. In considering changes to existing boundaries, a governmental entity must be aware of the location of protected minority populations within its single-member districts for the purpose of ensuring that changes are not made that may be asserted to have resulted in "packing," or in "fracturing" or "cracking" the minority population for purposes or having effects that are unlawful under Section 2. The thematic maps included in Attachment B depict the locations of Hispanic and African-American population concentrations by census block; they are useful in addressing this issue. Voting age population (VAP) data is useful in measuring potential electoral strength of minority groups in individual districts. .Shaw v. Rena Standards -Avoid Usine Race as the Predominant Redistricting Factor In 1991, local government redistricting had to satisfy both the Section 5 non- retrogression standard and the Section 2non-discrimination standard, but the .Shmc r. Rena standard had not yet come into play In this current round of redistricting, local governments have a harder task than they did in 1991 The Shcnv standard applies now as well as the Section 2 and Section 5 standards. While satisfying Section 5 and Section ?standards require a local government to explicitly consider race to comply with these standards, .S'hcnr places strict limits on the manner and degree in which race may be a factor In effect, therefore, local governments must walk a legal tightrope, where the competing legal standards must all be met. In the .Shaw n. Rena line of cases that began in 1993, the Supreme Court applied the Equal Protection Clause of the Fourteenth Amendment of the U.S Constitution to redistricting plans. Where racial considerations predominate in the redistricting process to the subordination of traditional (non-race-based) factors, the use of race-based factors is subject to the "strict scrutiny" test. To pass this test requires that there be a showing that (1) the race-based factors were used in furtherance of a "compelling state interest" and (2) their application be "narrowly tailored," that is, they must be used only to the minimum extent necessary to accomplish the compelling state interest. A majority of the United States Supreme Court has indicated that compliance with Section 2 of the Voting Rights Act is a "compelling state interest." While the Court has not expressly addressed the question in any case to date, it is reasonable to assume that it would find that satisfying Section 5 of the Voting Rights Act would also be a compelling state interest for strict scrutiny purposes so long as the efforts to comply with Section 5 are consistent with the Court's narrow, retrogression-based interpretation of Section 5. Thus, the following principles emerge in the post-Shaw environment to guide the redistricting process: -- race may be considered; -- but race may not be the predominant factor in the redistricting process to the subordination of traditional redistricting principles; -- bizarrely shaped districts are not unconstitutional per se, but the bizarre shape may be evidence that race was the predominant consideration in the redistricting process; -- if race is the predominant consideration, the plan may still be constitutional if it is "narrowly tailored" to address compelling governmental interest such as compliance with the Voting Rights Act; and -- if a plan is narrowly tailored, it will use race no more than is necessary to address the compelling governmental interest. The better course, if possible under the circumstances, is that racial considerations not predominate to the subordination of traditional redistricting criteria, so that the difficult stnct scrutiny test is avoided. Adherence to the Shmr n. Reno standards will be an important consideration during the redistricting process. One way to minimize the potential for Shmv ~~. Keno liability is to adopt redistricting criteria that include traditional redistricting principles and that do not elevate race-based factors to predominance Adoption of Redistricting Criteria Adoption of appropriate redistricting criteria -and adherence to them during the redistricting process - is potentially critical to the ultimate defensibility of an adopted redistricting plan. Traditional redistricting criteria that the governing body might wish to consider adopting include, for example: use of identifiable boundaries -- using whole voting precincts, where possible and feasible, or, where not feasible, being sure that the plan lends itself to the creation of reasonable and efficient voting precincts -- maintaining communities of interest (e.X., traditional neighborhoods) -- basing the new plan on existing districts; -- adopting districts of approximately equal size; -- drawing districts that are compact and contiguous; -- keeping existing representatives in their districts; and -- narrow tailoring to comply with the Voting Rights Act. There may be other criteria that are appropriate for an individual entity's situation, but all criteria adopted should be carefully considered and then be followed to the greatest degree possible. A copy of a sample criteria adoption resolution is provided as Attachment F. You may wish to include additional criteria, or determine that one or more on that list are not appropriate. We will discuss with you appropriate criteria for your situation. Requirements for Plans Submitted by the Public You should also consider imposing the following requirements on any plans proposed by the public for your consideration. (I) Any plan submitted for consideration must be a complete plan, that is, it must be a plan that includes configurations for all commissioner precincts (or other precincts, as applicable) and notjust a selected one or several. This is important because, although it may be possible to draw a particular precinct in a particular way if it is considered only by itself, that configuration may have unacceptable consequences on other precincts and make it difficult or impossible for an overall plan to comply with the applicable legal standards. (2) Any plan submitted for consideration must follow the adopted redistricting criteria. ~ "q~ {F j C§N f ~ ~~ Y k 4', e_ ~ / '<'~ics' ~' ~' S Y7. "~' ~ t I 4 II h $3 ~ y ±., a ''i`<. ~ :{1 4 AA F r 3 ~F Y t GLOSSARY Census blocks, census block groups, census VTDs, census tracts -Geographic areas of various sizes recommended by the states and used by the Census Bureau for the collection and presentation of data. Citizen voting age population (CVAP) - Persons 18 and above who are citizens This is a better measure of voting strength than VAP; however, the relevant citizenship data will not be available in time for this redistricting cycle Compactness -Having the minimum distance between all parts of a constituency Contiguity -All parts of a district being connected at some point with the rest of the district Cracking - The fragmentation of a minority group among different districts so that it is a majority in none Also known as "fracturing." Fracturing - See "cracking." Homogeneous district - A voting district with at least 90 percent population being of one minority group or of Anglo population. Ideal population -The population that an ideal sized district would have for a given jurisdiction. Numerically, the ideal size is calculated by dividing the total population of the political subdivision by the number of seats in the legislative body. Majority minority district- Term used by the courts for seats where an ethnic minority constitutes a numerical majority of the population. One person-one vote - U S. Constitutional standard articulated by the U.S. Supreme Court requiring that all legislative districts should be approximately equal in size. Packing - A term used when one particular minority group is consolidated into one or a small number of districts, thus reducing its electoral influence in surrounding districts. Partisan gerrymandering -The deliberate drawing of district boundaries to secure an advantage for one political party PL 94-171 -The Public Law that requires the Census Bureau to release population data for redistricting. The data must be released by April 1, 2001, is reported at the block level, and contains information on: • Total population • Voting age population • By Race • By Hispanic origin Racial gerrymandering The deliberate drawing of district boundaries to secure an advantage for one race Section 2 of the Voting Rights Act -The part of the federal Voting Rights Act that protects racial and language minorities from discrimination in voting practices by a state or other political subdivision. Section 5 of the Voting Rights Act -The part of the federal Voting Rights Act that requires certain states and localities (called "covered jurisdictions") to preclear all election law changes with the U S Department of Justice ("DOJ") or the federal district court for the District of Columbia before those laws may take effect. .Shmv n. Reno -- The first in a line of federal court cases in which the C' S Supreme Court held that the use of race as a dominant factor in redistricting was subject to a "strict scrutiny test under the Equal Protection Clause of the Fourteenth Amendment of the U S Constitution. This case and the fine of Supreme Court cases that follow it establish that race should not be used as a predominant redistricting consideration, but if it is, it must be used only to further a "compelling state interest" recognized by the courts and even then must be used only as minimally necessary to give effect to that compelling state interest ("narrow tailoring"). Spanish surnamed registered voters (SSRV) -The Texas Secretary of State publishes voter registration numbers that show the percentage of registered voters who have Spanish surnames. It is helpful to measure Hispanic potential voting strength, although it is not exact. It is available only at the county voting precinct level. Total population -The total number of persons in a geographic area. Total population is generally the measure used to determine if districts are balanced for one person-one vote purposes. Voting age population (VAP) -The number of persons aged 18 and above DOJ requires this to be shown in section 5 submissions. It is used to measure potential voting strength For example, a district may have 50 percent Hispanic total population but only 45 percent Hispanic voting age population. Voter tabulation district (VTD) - A voting precinct drawn using census geography In most instances, especially in urban areas, VTDs and voting precincts will be the same. In rural areas, it is more likely they will not be identical. ~, J >, ~ o ~, t s i. +~- ~ ~ ~ s / E{~ ~'\ A Y G F ~ 7'Mt y ~ cif ,~3 +''~C~'~ ,:yt ~y~ %`~ ' ; "~ ;HYPOTHETICAL PC i t s X :.. . n"t.« .M: .. .. . .. .. ~ ,. ~ ) ,1 . y .. .. ~ f ~<. # Y, i ' ~( t [ ~ ' W t aFY ~ 1k1,' 1. aVx~ Y t t i` Y ~;q 5 ~ ~£ hr T -t ~ 4 ~~ 'N ~ ~ ~' . y' ~ ' .r ~ r s ~rJT(~~', ~ 'y~x E4 d ~ ~it ~ ` t~n*F~r r ~fiTACHMENT ,~~ ~ ~ .+,... ~ ?i~s1r '.'~R #~x ~,j ,:.~1;AYr~w a^0.1 .L~ ;i(. ~yt .~; > r. ~A~,~r q4 PULATION DEVIATION CALCULATION r ~u, i~, ~ °?, r {.„6 s } `+ _ t ?4f4Fa'k ~~e> )>#... ia. ^ uY 1: ~F.i '. YAP rC'~a..~f.. ^L:. i. ,. ~ I ~. Hypothetical Population Deviation Calculation Consider a hypothetical political subdivision with four districts and a total population of 40,000 The "ideal district" for this political subdivision would have a population of 10,000 (total population /number of districts). This is the target population for each district. The deviation of each district is measured against this ideal size Suppose the latest population data reveals that the largest district, District A, has 11,000 inhabitants. The deviation of District A from the ideal is thus 1000 persons, or 10 percent. Suppose also that the smallest district, District D. has 8000 inhabitants. it is underpopulated by 2000 persons compared to the ideal size. It thus has a deviation of -20 percent compared to the ideal size. The masimrrm total det~intlon is thus 30 percent- Since this is greater than the l0 percent range typically allowed by the courts for one person-one vote purposes, this hypothetical subdivision must redistrict in order to bring its maximum total deviation to within the legally permissible limits. The following table illustrates this analysis: District Ideal district District total pop Difference Deviation A 10.000 11,000 1000 + 10 0 percent 6 10.000 10,750 750 + 7.5 percent C 10.000 10,250 250 + 25 percent D 10.000 8,000 - 2000 - 20.0 percent Totals: 40.000 40,000 net= 0 net- 0 percent Total maximum deviation =difference between most populous and least populous districts = 10 percent + 20 percent = 30 percent. 3. .. ~ ..r r ~ ,r" hN .+y y~~ ~py~'v S } ~ l 5^jrN L Y]' 11 ,~.. x ~!;~., ~ x } F {3P' m ~, s ij ~ C Y F .{~~ f + e 4 ' *~ wf ~~ r a _,~ # i `~xZ a `Y - 1,~~.. x .!. k., .. ... ,; . , ;, ~> x ~: a~ '' ~1 fr` '~ i { F . A t3y~W k ~ h ~' { y i,. . i~ ~x r' w.. ww~'~~' do :. j ti: +N'6~ k7 ~~, 88e ~ ~ ~' { ~'~~'~ ~~ ~'~e ~" t x(! '~~ Y Y~ {~ t rt J2 131.T y~' '~ } M.'.S4 l ~. i ~. ~ , ,~,~~, ,,,.~ : N,~~;ATT~CHMENT F w 1~~~ ''j'~~ ~ , a:,~$ , 7 y ~"' + '~ ~ ~ .~!?.j" 3v~, q.~.. ix i',;~it ~i .Y FG'u.>`~~`t ~f+"F~.. ?~c'~h ~~ '-~ _ ,USTRATIVE REDISTRICTING CRITERTARESOLUTION ,; ; r '. ii ILLLiSTRATIVE REDISTRICTING CRITERIA RESOLUTION (Here is an example of what the body of a resolution or ordinance adopting redistrictim~ criteria might contain, but not including the footnotes. They are only included here by way of explanation to you of some of the criteria.) The governmental body will observe the followin_ criteria, to the greatest extent possible, when drawing district boundaries Where possible, easily identifiable geographic boundaries should be followed. 2. Communities of interest should be maintained in a single district, where possible, and attempts should be made to avoid splitting neighborhoods. 3 To the extent possible, districts should be composed of whole voting precincts. Where this is not possible or practicable, districts should be drawn in a way that permits the creation of practical voting precincts and that ensures that adequate facilities for polling places exist in each voting precinct. 4 Although it is recognized that existing districts will have to be altered to reflect new population distribution, any districting plan should, to the extent possible, be based on existing districts. 5 Districts must be configured so that they are relatively equal in total population according to the 2000 federal census. In no event should the total deviation between the largest and the smallest district exceed ten percent. 6. The districts should be compact and composed of contiguous territory. Compactness may contain a functional,t as well as a geographical dimension. 7. Consideration may be given to the preservation of incumbent-constituency relations by recognition of the residence of incumbents and their history in representing certain areas. ' Functional compacmess is a sometimes controversial notion Utat has appeared in some cases. Basically, the concept is that compactness is no[ simply a matter of geography but can include considerations such as (1) the availability of transportation utd communication, (2) Ute existence of common social and economic interests. (3) Ute ability of the districts to relate to each outer, and (4) Ute existence of shared interests. We do no[ anticipate Utat we will reh heavily on functional compactness, but there may be instances in which it comes into play For example, e•e might be able to draw a very geographically compact district by including land on both sides of a river If, however. Ute nearest bridge is several miles away, our geographically compact district may not be functionally compact. Saying that compactness has a functional dimension gives us Uesibility to address Utis type of situation. The plan should be narrowly tailored to avoid retrogressionZ in the position of racial minorities and language minorities as defined in the Voting Rights Act with respect to their effective exercise of the electoral franchise The plan should not fragment' a geographically compact minority community or pack; minority voters in the presence of polarized voting so as to create liability under section 2 ofthe Voting Rights Act, 42 U.S C § 1973 The governmental body will review all plans in light of these criteria and will evaluate how well each plan conforms to the criteria. Any plan submitted to the governmental body by a citizen for its consideration should be a complete plan-r. e., it should show the full number of trustee districts and should redistrict the entire political subdivision. The governmental body may decline to consider any plan that is not a complete plan. All plans submitted by citizens, as well as plans submitted by staff, consultants, and members of the governmental body should conform to these criteria. - Retrogression is the standard used by the Department of Justice and the courts to determine if a plan can be precleared under section 5 of the Voting Rights Act. Basically, a redistricting plan is retrogressive if"its net effect would be [o reduce minority voters' 'effective exercise of the electoral franchise' when compared [o the benchmark plan." 66 Feo. REV. 5412, 5413 (Jan. I8, 2001) (Department of Justice, Guidance Concerning Redistricting and ReVOgression Under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c; Notice), quoting Beer v. Cnited .S'rores, 425 U.S. 130, 14l (1976). 'Fhe benchmark against which reVOgression is measured is the last legally ettforceable redistricting plan--typically the plan that was drown under Qte prior decade's census and is now being replaced. - Fragmenting or fracturing occurs when a geographically compact area of minority voters is split into two or more districts when, if the area had been put in a single district, minority voters would have had greater voting strengd[. ' Packing refers [o concentrating excessively large nwnbers of minority voters in a single disvict. For example, if a district is drawn to be 90 percent African-American. that group's influence may be limited to [hat single district when. if it had been split the group might have had an opportunity to elect candidates of their choice in nvo districts. ^~ r w ~> l~v 4~ 'r C. ~... ~,: •t Hp rgd4 ~ ~ y q• x ¢i (,~ b` +Z~,~, ii ~r"tN yMh F i M~~ ($ 1[~• Y ~ „~ _ z k.. -' ,~ '.tz ~~ y ~ 1 ~ ~ ~ ~ K r I yt '~1 t < ai Y r < ~y~yi~ ~ S ,~!i.~GnLr r9 i~ P ~ 1{S ~h~ ~~ ~ ~' ~~j tY it p ~~ t~~ 3 S ~ Yr~t . '1'.'i:i 1 t jr'~i'4tA'~f ~ s`T ~k 7 R.^sl hN( _~ti y" +Y R'x ~ Aa .. r :. •.:• 0. •~;~ r.~ .•z," \k~s t "~ _ Y~ ~ ' C '` The State of Texas Office of the Secretary of State Voter Registration Statistical Report January 4, 2001 COUNTY ICBRR PRECINCT VOTERS MALES FEMALES % OF '/° OF SPANISH SPANISH '/o OF % OF NO SUSPENSE MALES FEMALES MALES FEMALES SPANISH SPANISH GENDER VOTERS MALES FEMALES 2 1 0 1 0.00% 100.00% 0 0 0.00% 0.00% 0 0 6 I 0 1 0.00% 100.00% 0 0 0.00% 0.00% 0 0 I I I I 0 100.00% 0.00% 0 0 0.00% 0.00 % 0 0 14 I 1 0 100.00% 0.00% 1 0 100.00% 0.00% 0 0 18 I 1 0 100.00% 0.00% 1 0 100.00% 0.00% 0 0 101 2,292 812 933 35.43% 40.71% 35 55 1.53% 2.40% 362 547 107 965 345 38l 35.75% 39.48% 17 25 1.76% 2.59% 129 239 113 5,124 1,732 2,344 33.80% 45.75% 115 159 2.24% 3.10% 776 1,048 202 2,185 841 922 38.49% 42.20% 61 57 2.79% 2.61% 345 422 211 1,485 548 625 36.90% 42.09% 65 91 4.38% 6.13% 305 312 215 5,169 1,871 2,137 36.20% 41.34% 130 161 2.51% 3.11% 641 1,161 303 298 121 135 40.60% 45.30% 6 8 2.01% 2.68% 26 42 308 376 138 159 36.70% 42.29% 28 34 7.45% 9.04% 38 79 312 3,217 1,039 1,463 32.30% 45.48% l48 213 4.60% 6.62% 494 715 314 2,879 893 1,329 31.02% 46.16% 276 429 9.59% 14.90% 619 657 Page 1 of 2 COUNTY KERB PRECINCT VOTERS MALES FEMALES °/s OF %OF SPANISH SPANISH %OF %OF NO SUSPENSE MALES FEMALES MALES FEMALES SPANISH SPANISH GENDER VOTERS MALES FEMALES 404 412 163 171 39.56% 4150% 4 8 0.97% 1.94% 50 78 405 1,264 485 499 38.37% 39.48% IS 17 1.19% 1.34% 142 280 406 4,501 1,579 1,916 35.08% 42.57% 62 95 1.38% 2.11% 567 1,006 409 108 46 35 42.59% 32.41% 1 I 0.93% 0.93% l8 27 410 285 105 131 36.84% 45.96% 7 7 2.46% 2.46% 27 49 416 2,685 929 1,174 34.60% 43.72% 31 46 1.15% 1.71% 368 582 Total 33,250 11,650 14,356 35.04% 43.18% 1,003 1,406 3.02% 423% 4,906 7,244 Page 2 of 2 KERR COUNTY Election Precincts With Greater Than 5000 or Fewer Than 50 Registered Voters Precinct No. Total Precinct Total Suspense Net Precinct Voters Voters Voters 6 11 14 18 0