CONGRESSIONAL REDISTRICTING IN NORTH CAROLINA: RECONSIDERING TRADITIONAL CRITERIA

Vol. 13 No. 12 (December 2003)

CONGRESSIONAL REDISTRICTING IN NORTH CAROLINA: RECONSIDERING TRADITIONAL CRITERIA, by Dianne T. Thompson. New York: LFB Scholarly Publishing, 2002. 264 pp. Cloth $70. ISBN 1-931202-32-X.

Reviewed by Richard L. Engstrom, Department of Political Science, University of New Orleans. Email: rengstro@uno.edu

The role of "traditional districting principles" in the design of representational districts was elevated in the 1990s when the United States Supreme Court decided SHAW v. RENO (1993) and its progeny. The principles, or criteria, for districts that received the most attention in these cases are contiguity, compactness, and respect for both political subdivision boundaries and communities of interest. These four "race neutral" criteria became the focus of evaluations of districts alleged, by those opposing them, to have been designed predominantly for a racial purpose-which in these cases was to increase the number of opportunities that African American and Latino voters have to elect representatives of their choice. If such criteria, although not required by federal law, were found to have been subordinated to racial considerations in the design of a district, the Court concluded that a "strict scrutiny" inquiry was necessary to determine whether such a district complies with the Equal Protection clause of the Fourteenth Amendment.

Many have questioned whether these criteria are in fact "racially neutral." Dianne Thompson is among them. In her book, CONGRESSIONAL REDISTRICTING IN NORTH CAROLINA: RECONSIDERING TRADITIONAL CRITERIA, she notes that the implementation of these criteria could adversely affect racial and ethnic minorities. Indeed, she suspects, again like many others, that "legislators could urge respect for certain standards as a pretext for frustrating the interests of minority voters" (p.59). Her analysis, however, does not concern motives, but rather effects. Her research question is very straightforward - "whether an emphasis on traditional redistricting principles can result in plurality-black congressional districts where race is not the predominant consideration" (p.1). The answer to this question, of course, is dependent on the setting examined. As the title indicates, there is only one setting examined in this book, North Carolina, and the districts at issue are for the U.S. House of Representatives. Although a potentially serious limitation, this context may be of special interest to many given that congressional districts in North Carolina were the subject of SHAW and some of its most important progeny [SHAW v. HUNT (1996), HUNT v. CROMARTIE (1999) and EASLEY v. CROMARTIE (2001)].

The impact of setting is particularly crucial in this instance, as the setting dictated a modification in the original research question. Thompson states that she initially was interested in whether majority-black districts could be created under these constraints, but the dispersion of African Americans across North Carolina would make that virtually impossible, so the question was changed to a "more realistic" inquiry involving the creation of plurality-black districts (p.3).

The traditional principles applied by Thompson in this application are the four identified above. In operationalizing them, she looks not at textbook notions of what these entail, but rather at "how these concepts have been applied and articulated in [North Carolina's] recent past" (p.4). This is the proper choice, assuming the Court does not intend to establish double standards, depending on the racial composition of the districts, on what it takes to comply with these criteria (which unfortunately is a popular interpretation of its decisions).

The recent past turns out to be 1966 through 1992, a period for which Thompson searches the public record "for discussions about these criteria by participants in and observers of the state's congressional redistricting process" (p.4). This search entails examining newspaper articles, editorials, and letters to the editor, and minutes of legislative and public hearings. She appropriately recognizes that the latter, when recorded verbatim, may be less frank than statements given to reporters that are not for attribution (p.58). The statements cited however often appear to be self-serving spin in support of one plan over others, and even when not, they provide little indication, as is so often the case, of what the commentators think the criteria entail.

Missing from this examination of how these criteria have been "applied and articulated" is a systematic evaluation of the plans adopted by the state in the past. This, I would argue, is the appropriate baseline from which deviations should be measured. The SHAW Court tells us that it is not imposing new standards for compliance with these criteria, which as noted above are not federal requirements (see also Justice O'Connor's concurrence in MILLER v. JOHNSON, at 928). Serious deviations from some of them have been common in the past. Indeed, if the departures are found to be due to non-racial political reasons, or even if these reasons cannot be dismissed as the predominant motive, then the Court shows no further interest, no matter how pronounced they may be. SHAW is not applicable and the district is upheld (see especially EASLEY).

If new standards have not been imposed, then the past application of these criteria, as reflected in the state's previous plans, is the appropriate measure of "tradition." While this does require clarity in what the criteria entail, once their meaning is determined then past plans, assuming no racial double-standard, should provide the baseline against which departures are measured. In short, the standard should not be what observers and, especially, participants say, but rather how the criteria have been applied by the state in the past. Thompson omits this analysis, however, leaving the examination of how these criteria have been "applied and articulated" in the past limited to the rhetorical level. This comparison to past practice, as well as a comparison of the challenged districts to other districts in the same plan, would provide better protection against a racially selective application of the criteria.

The search of the public record, not surprisingly, does not provide clear definitions of what the criteria entail, and the operational definitions employed by Thompson in her analysis often seem to be more her own notions than anything driven by the record. She adopts the accepted definition for contiguity - "no part of one district should be completely separated from any other part of the same district" (p.103) - but rejects point contiguity, which can occur when two parts of a district are connected only at a point, despite its presence in past North Carolina plans (p.161). It is unclear whether she thinks connections through water satisfy this criterion, even when this cannot be avoided (pp.173, 176). Thompson finds that compactness has not been defined clearly in North Carolina, but rather "[r]ecognized by intuition, it has been articulated by metaphor or through mileage as an expression of distance or proximity" (p.114). Moreover, "[o]bjective statistical measures for district compactness are unheard of" in North Carolina (p.104). She therefore eschews any such measures and leaves the determination of whether this criterion is satisfied to the same subjective test often employed in judging pornography-"you know it when you see it!" With regard to respect for political subdivision boundaries, Thompson reports that county lines had been building blocks for congressional districts prior to the Court's adoption of a strict one person, one vote standard and have continued to serve as important referents in redistricting plans. She therefore considers these boundaries in her analysis.

Thompson tackles more systematically than have others the "the most challenging to measure" criterion - "communities of interest" (p.4), correctly noting that "consensus eludes the experts as to the meaning of this broad phrase" (p.59) and that the courts have left us without "any recognized uniform legal standard" (p.65). This is a serious problem, as "communities of interest" undoubtedly often serves as an after-the-fact rationalization for district lines that have been drawn for quite different reasons. Indeed, Thompson specifically reports that this criterion had served as a rhetorical pretext for keeping "a highly organized and politically savvy black electorate" out of a particular long-serving white incumbent's district (p.84).

Thompson's attempt to provide "a manageable definition" (p.177)-at least for North Carolina-is a serious effort and should be applauded, but unfortunately it is not persuasive. Her review of the rhetorical record finds the most prominent notion of community of interest to be, not surprisingly, "place-based economic communities of interest," with the place being primarily the county (pp.69-70). The rhetoric, however, rarely goes beyond simplistic notions. The record, as Thompson reports it, contains little more than county-level descriptors, such as urban, rural, industrial or agricultural, and virtually nothing about specific shared interests or about divisions in interests, such as labor versus management and rich versus poor, within these counties. Congressional districts in North Carolina, following the 1990 census, contained roughly 552,000 people each. Districts of this size are "homogeneous" on very few, if any, dimensions. And, as Thompson reveals, many of the comments may well reflect political preferences about how lines are drawn, rather than communities of interest.

Thompson's operationalization of the communities of interest criterion, based on factor analysis, is also problematic. Her focus on "economic communities" propels a search for indicators of economic characteristics of people at the census tract level. Ultimately, the analysis includes 19 variables, almost all of which measure the percentage of the civilian labor force engaged in a particular industry or occupation, producing six factors, each representing a particular "community of interest"-e.g., "service support" and "personal services" communities. While factor analysis is a data reduction technique, the application here does not provide clarification for the community of interest criterion. Factor scores for census tracts have a statistical referent, but they lack a clear substantive referent. They only tell us that some census tracts contain higher percentages of people engaged in certain activities than do other tracts. They do not identify tracts, or geographical clusters of tracts, as being "homogeneous" in actual terms on any dimensions. And the specific shared interests associated with each factor, and why these interests deserve greater respect than others simply because they have a greater tendency to cluster in geographical space, are never addressed.

In order to answer her research question, Thompson draws only one congressional districting plan for North Carolina. The smallest geographical unit from which districts are created is the census tract, and she uses 1990 census data, the latest available to her when she conducted her analysis. The legal requirement that congressional districts be close to equi-populous is, of course, the overriding constraint, and in her plan the least populous district falls a mere one-tenth of one percent below the average district population, while the most populous is only 0.06% higher than the mean. The other four criteria that she employs are often in conflict; satisfying one often comes at the expense of another. She therefore prioritizes them, but in a way that may surprise many. The highest priority is given to communities of interests (as measured), despite the fact that the legislature, in actuality, often ranks it "near the bottom" (p.70), and she gives county boundary integrity the second highest weighting. Whereas most redistricting analyses start with contiguity and compactness, Thompson ranks them below the other two in her calculations. And even more surprising, her concern for the racial composition of districts-and whether plurality black districts can be created-also comes before contiguity and compactness. Given the research question, one might expect that this concern would follow the four traditional criteria; however in Thompson's expressed hierarchy, it trumps contiguity and compactness.

In the end, Thompson does not strictly follow her own hierarchy, but rather refers to it for "some guidance" when conflicts among the criteria are confronted (p.161). She provides no specific decision rules for resolving such conflicts, nor for determining where district lines should be placed, so Thompson's plan seems to reflect considerable discretion on her part as to where the lines will go. Subjectivity notwithstanding, given her placement of the racial factor among the redistricting criteria, her approach creates a better chance for plurality black districts to emerge than would tests by other analysts giving all four criteria priority over race. Nonetheless, the plan she produces, with districts that "certainly … have unusual shapes" (p.173), does not contain a single plurality-black district. The closest is a district in which the total population is 47.23% black and voting age population is only 43.52%, and the second closest district falls below 40% on both measures. Both districts are majority white (p.164). Thus, the answer Thompson provides to her research question - "whether an emphasis on traditional redistricting principles can result in plurality-black congressional districts where race is not the predominant consideration?" - is NO, at least in North Carolina using the 1990 census. Her investigation provides additional evidence to support the conclusion that even if the traditional criteria for drawing geographic districts "are assumed to be non-racial in origin … their implementation in redistricting does have racial consequences" (p.59).

CASE REFERENCES:

EASLEY v. CROMARTIE, 532 U.S. 234 (2001).

HUNT v. CROMARTIE, 526 U.S. 541 (1999).

MILLER v. JOHNSON, 515 U.S. 900 (1995).

SHAW v. HUNT, 517 U.S. 899 (1996).

SHAW v. RENO, 509 U.S. 630 (1993)

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