______________________________________

______________________________________________________________________________ TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL State of California

DANIEL E. LUNGREN Attorney General

OPINION : : No. 91-403 of :

: August 9, 1991 DANIEL E. LUNGREN : Attorney General :

: RODNEY O. LILYQUIST :

Deputy Attorney General :

:

THE HONORABLE PETE WILSON, GOVERNOR OF CALIFORNIA, has requested an opinion on the following questions:

1. Under section 2 of the Voting Rights Act, does the creation of "majorityminority" districts in a redistricting plan take precedence over all other criteria (including preservation of incumbencies) used to draw district boundaries except for the "one person, one vote" requirement?

2. If a district can be created with a racial minority population high enough to guarantee the election of a candidate of the racial minority community's choosing, does section 2 of the Voting Rights Act require the creation of such a district in a redistricting plan?

3. Do section 2 of the Voting Rights Ac t and the California Constitution require that geographically compact racial minority communitie s of interest not be divided in a redistricting plan?

4. Under what criteria must a redistricti ng plan be drawn to comply with the standards on political gerrymandering set forth in Davis v. Bandemer (1986) 478 U.S. 109?

5. To what extent does the California Constitution impose requirements or limitations on the drawing of district boundaries in addition to those of federal law?

CONCLUSIONS

1. Under section 2 of the Voting Rights Ac t, the creation of "majority-minority" districts in a redistricting plan, for the purpose of preventing minority vote dilution, takes precedence over all other criteria used to draw district boundaries except for the "one person, one vote" requirement.

1. 91-4032. If a district can be created with a racial minority population high enough to guarantee the election of a candidate of the racial minority community's choosing, section 2 of the Voting Rights Act generally requires the creation of such a district in a redistricting plan.

3. Depending upon the totality of the circ umstances, section 2 of the Voting Rights Act and the California Constitution generally require that geographically compact racial minority communities of interest not be divided in a redistricting plan.

4. Under the standards articulated in Davis v. Bandemer (1986) 478 U.S. 109, a redistricting plan will be invalidated pursuant to constitutional equal protection guarantees, on the ground of political gerrymandering, only if the plan is intentionally discriminatory and imposes an actual discriminatory effect.

5. The California Constitution imposes requirements or limitations on the drawing of district boundaries in addition to those of federal law to the extent of requiring timely adjustment of district lines, single-member district s, contiguity of districts, consecutive numbering of districts from north to south, and the geogra phical integrity of cities, counties and geographical regions to the extent possible.

ANALYSIS

The five questions presented for resolution concern the Senate, Assembly, Board of Equalization, and Congressional elections scheduled for 1992. Section 1 of article XXI of the California Constitution states:

"In the year following the year in which the national census is taken under the direction of Congress at the beginning of each decade, the Legislature shall adjust the boundary lines of the Senatorial, Assembly, Congressional, and Board of Equalization districts in conformance with the following standards:

"(a) Each member of the Senate, Assembly, Congress, and the Board of Equalization shall be elected from a single-member district.

"(b) The population of all districts of a particular type shall be reasonably equal.

"(c) Every district shall be contiguous.

"(d) Districts of each type shall be numbered consecutively commencing at the northern boundary of the state and ending at the southern boundary.

"(e) The geographical integrity of any city, county, or city and county, or of any geographical region shall be respected to the extent possible without violating the requirements of any other subdivision of this section."

Accordingly, based upon the 1990 federal census, the Legislature has the constitutional duty to adjust the boundaries for Senate, Assembly, Boar d of Equalization, and Congressional districts during 1991 for the 1992 primary and general elections. (See Legislature v. Deukmejian (1983) 34 Cal.3d 658, 672.) The primary election for these o ffices will take place on June 2, 1992. (See Elec. Code, § 2551.)

2. 91-403The questions posed not only concern pr ovisions of the California Constitution but also provisions of the federal Voting Rights Act. Section 2 of the Voting Rights Act of 1965, as amended in 1982 (codified at 42 U.S.C. § 1973; her eafter sometimes "section 2") now contains the principal mandate of the Voting Rights Act. It states:

"(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.

"(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or po litical subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political pro cess and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided , That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population." 1

With this constitutional and statutory bac kground in mind, we turn to the individual questions presented.

1. Criteria for Creating District Boundaries

The first question presented is whether th e creation of a "majority-minority" district (one in which a racial or language minority gr oup constitutes a majority of the population) takes precedence under section 2 of the Voting Rights Act over all other criteria, including preservation of incumbencies, used to draw district boundaries, except for the "one person, one vote" requirement. We conclude that the creation of majority-minority districts in order to prevent minority vote dilution takes precedence over all other criteria used to draw district boundaries, except for the "one person, one vote" requirement; preservation of incumbency, while not necessarily impermissible as a basis for redistricting (see Davis v. Bandemer (1986) 478 U.S. 109, 128-129, plur. opn. of White, J.), is not a criterion r ecognized or mandated by either federal or state constitutional or statutory law.

Preliminarily, we note the requirement of the equal protection clause of the United States Constitution with respect to the prin ciple of "one person, one vote." Since Baker v. Carr (1962) 369 U.S. 186, the United States Supreme Cour t has developed and enforced the "one person, one vote" principle in the legislative districti ng context regarding inequalities in population between districts. The size of state legisl ative districts must be "as nearly of equal population as is practical."

1 "[T]he guarantees set forth in section 1973b(f)(2)" are as follows:

"No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote because he is a member of a language minority group."

3. 91-403(Reynolds v. Sims (1964) 377 U.S. 533, 577.) Congressional districts must represent populations that are "as mathematically equal as reasonably practical." ( Kirkpatrick v. Preisler (1969) 394 U.S. 526, 531.)

Besides the standards specified in article XXI of the California Constitution, various criteria have been established for drawing district boundaries, including "(a) topography, (b) geography, (c) cohesiveness, and contiguity, in tegrity, and compactness of territory, and (d) community of interests" (Elec. Code, §§ 35000, 35101) and "making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbents" ( Karcher v. Daggett (1983) 462 U.S. 725, 740). (See also Grofman, Criteria for Districting: A Social Science Perspective (1985) 33 UCLA L.Rev. 77, 79-88 (hereafter " Criteria ") [equal population, contiguity, compact districts, districts following local political subunit boundaries and other "natural" demarcation lines, preserving communities of interest, and coterminality of house and senate plans].)

In relation to the primary consideration of population equality (the one person, one vote principle), the other criteria are secondary. (See Karcher v. Daggett, supra , 462 U.S. 725, 739; Chapman v. Meier (1975) 420 U.S. 1, 23.) Under section 2 of the Voting Rights Act, do these other criteria also defer to the creation of a district in which a racial or language minority group would constitute a majority?

In Thornburg v. Gingles (1986) 478 U.S. 30, the United States Supreme Court examined section 2 and its legislative history. ( Id., at pp. 43-46.) It found that in 1982 Congress amended section 2 to eliminate requiring any "proof that the contested electoral practice or mechanism was adopted or maintained with the inte nt to discriminate against minority voters." ( Id.

, at p. 44.) Instead, Congress fashioned a "results test" based upon various "factors" and the "totality of the circumstances" to determine whether "a certainelectoral law, practice, or structure interacts with social and historical conditions to cause aninequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." ( Id., at p. 47; see White v. Regester (1973) 412 U.S. 755, 764; Abrams, " Raising Politics Up ": Minority Political Participation and Section 2 of the Voting Rights Act (1988) 63 N.Y.U. L.Rev. 449, 450-451 (hereafter Political Participation ); Criteria, supra, at p. 98.) As expressed in the Senate Report that accompanied the 1982 amendment, "[T]he provision requires the court's overall judgmen t, based on the totality of circumstances and guided by those relevant factors in the particular case, of whether the voting strength of minority votes is, in the language of Fortson and Burns , `minimized or cancelled out.'" (Sen.Rep. No. 97­ 417, 2d Sess., at p. 29, n. 118 (1982) (hereafter, "Sen.Rep.").) 2

While precise standards for maintaining a section 2 claim with respect to singlemember district plans have not been established by the courts, we believe three "preconditions" based upon the "results tests" are necessary for such claims. These preconditions are: (1) geographical compactness of the minority group, (2 ) minority political cohesion, and (3) racially polarized bloc voting. 3 (See Thornburg v. Gingles, supra, 478 U.S. at 50-51; Garza v. County of Los Angeles (9th Cir. 1990) 918 F.2d 763, 770-771, cert. denied, 111 S.Ct. 681 (1991); see also, e.g., Chisom v. Roemer (1991) ____ U.S. ____, 59 U.S.L.W. 4696, 4700; Solomon v. Liberty County, Fla. (11th Cir. 1988) 865 F.2d 1566, 1571; Un. Latin Amer. Cit. v. Midland Ind. Sch. Dist. (5th Cir.

2 " Fortson " refers to Fortson v. Dorsey (1965) 379 U.S. 433, and " Burns " refers to Burns v. Richardson (1966) 384 U.S. 73.

3 "`Racial polarization' exists where there is a consistent relationship between [the] race of the voter and the way in whic h the voter votes." ( Thornburg v. Gingles, supra, 478 U.S. 30, 53, n. 21.)

4. 91-4031987) 812 F.2d 1494, 1496-1498; Political Participation

, supra , at pp. 465-468.) For purposes of the question presented, we assume that a redistricting authority has identified minority communities exhibiting these characteristics and would, therefor e, create majority-minority districts for the purpose of avoiding violation of section 2 of th e Voting Rights Act. Where section 2 has been violated, or where the section otherwise would be violated, creation of a majority-minority district is mandated. (See Garza v. Los Angeles County, supra , 918 F.2d 763, 776 ["The deliberate construction of minority controlled voting dist ricts is exactly what the Voting Rights Act authorizes"].)

It is important to note that under the "resu lts test," Congress did not intend to create a new test for assessing violations of section 2, but intended rather to codify the test articulated by Justice White in his opinion in White v. Regester

, supra , 412 U.S. 755. (See Boyd & Markham, The 1982 Amendments to The Voting Rights Act: A Legislative History (1983) 40 Wash. & Lee L. Rev. 1313, 1417 (hereafter Legislative History ), quoting Senator Dole; Sen.Rep., supra , at pp. 2, 27-28, 32, 194; Chisom v. Roemer

, supra , 59 U.S.L.W. at 4700.)

Debate in the Senate focused largely on the question whether sections 2's "results test" could be construed as a mandate for proportional representation. The Senate Report rejected this concern as unfounded, citing prior judicial app lications of the "results test" that upheld multimember districts where the totality of the circum stances did not otherwis e indicate a denial or abridgment of the right to vote. (Sen.Rep., supra , at p. 33.) Senator Dole commented: "The focus of the standard is on whether there is equal acce ss to the political process, not on whether members of a particular minority group have achieved proportional elections results." (Sen.Rep., supra , at
p. 294.)

We do not believe that section 2 mandates creation of majority-minority districts merely on a presumption of racially polarized vo ting. "[T]he results test makes no assumptions one way or the other about the role of racial political consider ations in a particular community. (See e.g., Clinton v. Jeffers (E.D. Ark. 1989) 730 F.Supp. 196, 216-217, affd. 111 S.Ct. 662.) If plaintiffs assert that they are denied fair access to the politi cal process, in part, because of the racial bloc voting context within which the challenged election system works, they would have to prove it." (Sen.Rep., supra , at p. 34 (emphasis in original); see also, Thornburg v. Gingles, supra 478 U.S. 30, 46.)

We do not question that race-conscious redistricting is permissible as a remedy for violation of section 2. (See Garza v. County of Los Angeles

, supra , 918 F.2d 763, 776.) Nor do we question that race-conscious redistricting may be required to prevent a violation of section 2, considering the totality of the circumstances. Ho wever, in light of the legislative history and decisions construing section 2, we conclude th at section 2 of the Voting Rights Act does not categoricallymake creation of majority-minority distri cts the preeminent concern of legislative district drawing absent other important conditions.

Cases brought under section 2 should not be confused with the pre-clearance requirements found in section 5 of the Voting Rights Act (42 U. S.C. § 1973c), where the creation of majority-minority districts in covered jurisdictions 4 may take precedence over all other criteria used to draw district boundaries, except for the "one person, one vote" re quirement. Section 5 imposes on covered jurisdictions the burden of proving -- either to the federal district court for the District of Columbia, or to the United States Attorney General -- that a new "qualification,

Four California counties are "covered" under section 5 of the Voting Rights Act: Yuba, Monterey, Kings, and Merced. (28 C.F.R. part 51, Appendix, p. 582 (1991).)

5. 91-403 4prerequisite, standard, practice, or procedure [with respect to voting] does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color or [membership in a language minority group]." (42 U.S.C. § 1973c (emphasis added).)

The "effects test" of section 5 is not the same as the "results test" of section 2. The Senate Report states: "By referring to the `results' of a challenged practice and by explicitly codifying the White standard, the amendment distinguishes the standard for proving a violation under Section 2 from the standard for determining whether a proposed change has a discriminatory `effect' under Section 5 of the Act." (Sen.Rep., supra , at p. 68.) The Senate Report notes specifically that, "Plaintiffs could not establish a Section 2 violation merely by showing that a challenged reapportionment or annexation, for exam ple, involved a retrogressive effect on the political strength of a minority group." ( Id., at p. 68, n. 264 (emphasis added).)

In deciding whether to "clear" a districting plan for implementation, the Attorney General will consider, among other things, whether the change in districting will "make members of [the protected] group worse off than they had been before the change" (28 C.F.R. § 51.54(a) (1991)); "[t]he extent to which minority voting stre ngth is reduced by the proposed redistricting" (28 C.F.R. § 51.59(b) (1991)); and [t]he extent to wh ich minority concentrations are fragmented among different districts" (28 C.F.R. § 51.59(c) (1991)). Creation of majority-minority districts in covered jurisdictions is certainly one wa y of ensuring preclearance (see, e.g., United Jewish Organizations et al. v. Carey (1977) 430 U.S. 144), and, by virtue of th e supremacy clause of the United States Constitution (U.S. Const., art. VI, § 2), satisfac tion of section 5 precl earance requirements (42 U.S.C. § 1973c) would take precedence over any other criteria in the drawing of district lines, save for the "one person, one vote" requirement of the equal protection clause.

Returning, then, to the particular question under consideration, we believe that Carstens v. Lamm (D.Colo. 1982) 543 F.Supp. 68, provides the co rrect approach in setting forth the hierarchy of criteria for drawing district boundari es. The one person, one vote principle is "`preeminent,'" followed by the "second constitutional criteria" of protecting minority rights against "invidious racial discrimination," followed by a third group of criteria such as "(1) compactness and contiguity; (2) preservation of county and municipal boundaries, and (3) preservation of communities of interest." ( Id. , at pp. 81-82.) The Voting Rights Ac t arises out of the Constitution's express vesting of power in Congr ess to enforce the guarantees of the Fifteenth Amendment. (U.S. Const., Amend. XV, § 2; see South Carolina v. Katzenbach (1966) 383 U.S. 301, 324 [Congress has full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting].) The third group of criteria is not based in the federal Constitution. (See Gaffney v. Cummins (1973) 412 U.S. 735, 752, n. 18 ["Compactness ... has never been held to constitute an independent federal constitutional requirement for stat e legislative districts"]). By virtue of the Constitutions' "supremacy clauses" (U.S. Const., art. VI, § 2; Cal. Const., art. III, § 1), compliance with section 2 takes precedence over all conflicting state constitutional or statutory requirements.

In answer to the first question, therefor e, we conclude that, where necessary to prevent minority vote dilution, considering the to tality of the circumstances, the creation of majority-minority districts takes precedence over a ll other criteria used to draw district boundaries except for the one person, one vote requirement.

2. Creating Majority-Minority Districts

The second question posed is whether secti on 2 of the Voting Rights Act requires the creation of a district with a racial minority population high enough to guarantee the election of a candidate of the racial minority community's c hoosing, if such a district can be created. We conclude that it generally does.

6. 91-403In Garza v. County of Los Angeles, supra, 918 F.2d 763, the Ninth Circuit found that "[t]o the extent that a redistricting plan deliberately minimizes minority political power, it may violate both the Voting Rights Act and the Equal Pr otection Clause of the fourteenth amendment." ( Id., at p. 766.) As previously indicated, the court expressly held that "[t]he deliberate construction of minority controlled voting districts is exactlywhat the Voting Rights Act authorizes." ( Id. , at p. 776.)

We are presented with the possible creati on of a district with a high enough minority population so as to guarantee 5 the election of the minority community 's candidate of choice. If the minority community is instead fragmented into two or more districts, the redistricting plan will be subject to a claim under Garza 6 that it "deliberately minimizes mi nority political power" in violation of section 2. In Gaffney v. Cummins

, supra , 412 U.S. 735, 753, the Supreme Court observed in an analogous situation that "it is most unlikely that the political impacts of su ch a plan would remain undiscovered by the time it was proposed or adopte d, in which event the results would be known and, if not changed, intended." Moreover, as already noted, the 1982 amendment of section 2 eliminated the intent requirement and added the totality of circumstances test in determining whether minority "members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."

As always, then, it is the totality of the circumstances which must be considered in deciding whether any districting arrangement violates section 2. (Cf., Whitcomb v. Chavis (1971) 403 U.S. 124, 149-153.) Among the factors which th e United States Attorney General would consider in connection with a section 5 preclearance of a redistricting plan is, "whether the change [affecting voting] is free of discriminatory purpos e and retrogressive effect" and "[t]he extent to which minority concentrations are fragmented among different districts." (28 C.F.R. §§ 51.55, 51.59 (1991).) We believe that these factors could also be properly included among the "totality of circumstances" considered for the purposes of assessing a violation of section 2

. In answer to the second question, therefore, we conclude that if a district can be created with a racial minority population high enough to guarantee the election of a candidate of the racial minority community's choosing, section 2 of the Voting Rights Act generally requires the creation of such a district.

3. Dividing Minority Communities of Interest

The third question presented is whether s ection 2 of the Voting Rights Act and the California Constitution require that geographically compact racial minority communities of interest (not sufficiently large enough to constitute a majority in any configured dist rict) not be divided when drawing district boundaries. By the phrase, "ge ographically compact racial minority community of interest," we assume that a politically cohesive minority community and the existence of racially polarized voting is meant. With these assumptions in mind, we conclude that such communities generally must not be fragmented.

5 We assume that use of the word "guarantee" is a shorthand way of incorporating the three Gingles criteria (geographical compactness, minority po litical cohesion, and racial bloc voting) into the question posed.

6 Thornburg v. Gingles, supra , 473 U.S. 30, expressly did not addr ess "a claim alleging that the splitting of a large and geographically cohesive minority between two or more ... single-member districts resulted in the dilution of the minority vote." ( Id. , at p. 46, fn. 12.)

7. 91-403In Thornburg v. Gingles, supra , 478 U.S. 30, the court expressly did not consider "[w]hat standards should pertain to a claim brought by a minority group that is not sufficiently large and compact to constitute a majority in a single-me mber district, alleging that the use of a voting standard, practice or procedure impairs its ability to influence elections." ( Id. , at p. 46, fn. 12.) However, four concurring justices in Gingles noted that the reasoning of the majority could easily support an "ability to influence" claim:

"But the court recognizes that when the candidates preferred by a minority group are elected in a multimember district, the minority group has elected those candidates, even if white support was indisp ensable to these victories. On the same reasoning, if a minority group that is not large enough to constitute a voting majority in a single-member district can show that white support would probably be forthcoming in some such district to an ex tent that would enable the election of the candidates its members prefer, that minority group would appear to have demonstrated that, at least under this measure of its voting strength, it would be able to elect some candidates of its choice." ( Id. at p. 90, n. 1 (conc. opn. of O'Connor, J.).)

In Garza v. County of Los Angeles, supra , 918 F.2d 763, the lower court was initially presented with a redistricting plan in which a minority community of interest was geographically compact but less than a majority of the population in any district. The plan was rejected by the lower court because it "resulted in dilution of Hisp anic voting power in viol ation of section 2" and it "intentionally discriminated against Hisp anics in violation of Section 2 ...." ( Id., at p. 769.) The Ninth Circuit upheld the lower court's second alternative theory of liability, stating:

"We hold that, to the extent that Gingles does require a majority showing, it does so only in a case where there has been no proof of intentional dilution of minority voting strength. We affirm the district court on the basis of its holding that the County engaged in intentional discrimi nation at the time the challenged districts were drawn." ( Ibid. )

Accordingly, a geographically compact racial minor ity community of interest may not be divided if the division constitutes an intentional dilution of minority voting strength. 7

While the issue is not free from doubt, we be lieve the better approach is to rely on the "results test" fashioned by Congress in 1982 to determine whether a geographically compact racial minority community of interest may be di vided based upon an examination of the totality of circumstances. Generally the answer will be "no." (See Carstens v. Lamm

, supra , 543 F.Supp. 68, 81-82 ["redistricting plans ... should not fracture a natural racial or ethnic community or otherwise dilute minority voting strength"]; Goddard v. Babbitt (D.Ariz. 1982) 536 F.Supp. 538, 541 [division of a small Apache Indian tribe among three congre ssional districts criticized for having "the effect of diluting the San Carlos Apache Tribal voti ng strength and dividing the Apache community of interest"].)

Section 2 is clearly intended to secure fa ir access to the political process, unimpaired because of race, color, or membership in a mi nority language group. While mere numerical inability

7 With complete reporting of population data, incl uding racial data and voting age information, contained in the federal census for local geographi c units, it would be virtually impossible to claim that fragmenting a minority community was not "intentional," although possibly not intentionally discriminatory. (See Gaffney v. Cummins

, supra , 412 U.S. 735, 753.)

8. 91-403to elect a representative may not, standing alone, esta blish a violation of section 2, that fact should not render the minority group wholly unprotected under section 2, if the community is otherwise politically cohesive and there is evidence of major ity racial bloc voting. We believe that where voting is racially polarized, it is especially important that the ability of politically cohesive minority groups to influence the political process not be diminished.

The California Constitution is consistent with this analysis of the Voting Rights Act. "The geographical integrity of any city, county, or city and county, or of any geographical region shall be respected to the extent possible without violating the requirements of any other subdivision of this section." (Cal. Const., art. XXI, § 1, subd. (e).) The apparent purpose of protecting the integrity of a geographical region is to respect and foster the common interests of those persons residing in the region. 8 However, by its own terms, the California Constitution cannot be said to "require" the keeping together of racial minorit y communities of interest, since it only refers to respecting the integrity of geographical regions "to the extent possible."

Of course, a geographically compact minority community of interest may be so large that splitting it would create two or more district s, each having a majority of the population. (See Clinton v. Jeffers

, supra , 730 F.Supp. 196 [redistricting plan violated the Voting Rights Act by creating only 5 black majority districts since 16 suchdistricts were possible].) On the other hand, a geographically compact minority community of interest may be so small that it has no possibility of influencing any elections. 9

We conclude, therefore, in answer to the third question that depending upon the totality of circumstances, section 2 of the Voting Rights Act and the California Constitution generally require geographically compact minority communities of interest not be divided in drawing district boundaries.

4. Political Gerrymandering Under Federal Law

The fourth question concerns the practice of political gerrymandering in the drawing of district boundaries. Under what conditions may political considerations, such as preserving incumbencies, be consistent with the equal protec tion clause of the United States Constitution in the drawing of district boundaries under the standards set forth in Davis v. Bandemer, supra, 478 U.S. 109?

The plaintiffs' claim in Bandemer was that "each political group in a State should have the same chance to elect representatives of its choice as any other political group." (Id. , at p. 124.) In response to this claim, a plurality of the court 10 reasoned that a redistricting plan would

8 In 1980, the ballot argument in favor of Propos ition 6 (adding article XXI to the California Constitution) explained that section 1, subdivi sion (e) would "help prot ect minority communities from being carved up just to dilute their votes."

9 However, the San Carlos Apache Tribe that was required to be placed in a single district in Goddard v. Babbitt, supra, 536 F.Supp. 538, constituted only 1.47 percent of an "ideal" congressional district. ( Id. , at p. 540.)

10 The case produced four opinions. A majority of six justices, led by Justice White, held that political gerrymandering is justiciable. A plura lity of four justices, still led by Justice White, concluded that the Indiana gerrymander itself did not violate the Equal Protection Clause. Justices Powell and Stevens dissented on this latter point, on the grounds that the Indiana plan should be held

9. 91-403survive a constitutional challenge based on asserted "political gerrymandering" unless the plan were proved to be both intentionally discriminatory and actually discriminatory in its effect. ( Id. at p. 127.) As respects the first part of the test, the plurality conceded that, "[a]s long as redistricting is done by a legislature, it should not be very difficu lt to prove that the likely political consequences of the reapportionment were intended." ( Id. at p. 129.) Therefore, under the Bandemer plurality, if such a redistricting plan is s hown to be intentionally discrimina tory on a partisan basis, the plan cannot survive if it has an actual discriminatory effect.

The plurality in Bandemer offered some broad descriptions of situations which might render an apportionment scheme constitutionally infirm:

"[U]nconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter's or group of voters' influence on the political process as a w hole. [¶] ... [T]he question is whether a particular group has been unconstitutionally denied its chance to effectively influence the political process. ... [A]n equal protection violation may be found only where the electoral system substantially disadvantages certain voters in their opportunity to influence the political process effectively. In this context, such a finding of unconstitutionality mu st be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of the voters of a fair chance to influence the political process." ( Id. at pp. 132-133.)

We find it difficult to distill from Bandemer any discrete criteria which must be met in order to satisfy implied constitutional limitations on political gerrymandering. However, we do note that the plurality did not reject Justice Powell's "factors" as totally irrelevant. The plurality conceded that "evidence of exclusive legislative process and deliberate drawing of district lines in accordance with accepted gerrymandering principles w ould be relevant to intent, and evidence of valid and invalid configuration would be relevant to whether the districting plan met legitimate state interests." ( Id. at p. 141.) Thus, any criteria which departfrom those contained in the California Constitution, which are presumably expressions of va lid state interests, would be closely examined. As mentioned earlier in our response to th e first question, preservation of incumbencies 11 is not a criterion recognized or mandated by either federal or state constitutional or statutory law.

In answer to the fourth question, therefore, we conclude that a redistricting plan will be invalidated pursuant to constitutional equal protection guarantees, on the ground of political gerrymandering, only if the plan is intentionally di scriminatory and imposes an actual discriminatory effect.

5. California Constitutional Requirements

The fifth question presents the issue of th e extent to which th e California Constitution imposes requirements or limitations on the drawing of district boundaries in addition to those of federal law. We conclude that timely adjustment of district lines, single-member districts, contiguity, consecutive numbering of districts from north to south, and preserving geographical

unconstitutional. A minority of three Justices, Chief Justice Burger and Justices Rehnquist and O'Conner, insisted that political gerrymandering should not be justiciable at all.

11 According to Bernard Grofman, an expert for the State of Indiana in Bandemer , "displacing incumbents of the opposing party is, perhaps, the most important single tactic of contemporary sophisticated gerrymandering." ( Criteria, supra, at pp. 115-116.)

10. 91-403integrity of any city, county, or city and count y, or of any geographical region are additional requirements under the California Constitution.

Multi-member districts and at-large voting procedures are not "preferred" but are allowable under federal law if they comply with th e "results test" of section 2 of the Voting Rights Act as described in Thornburg v. Gingles, supra , 478 U.S. 30, 46-51. (See also Rogers v. Lodge (1982) 458 U.S. 613, 617; White v. Regester

, supra , 412 U.S. 755, 765-766; Chapman v. Meier,

supra, 420 U.S. 1, 18-19; Connor v. Johnson (1971) 402 U.S. 690, 692.) The California Constitution, on the other hand, requires that "[e]achmember of the Senate, Assembly, Congress, and the Board of Equalization shall be elected from a single-member district." (Cal. Const., art. XXI, § 1, subd. (a); see art. IV, § 6; art XIII, § 17.)

The California Constitution mandates that "the Legislature shall adjust boundary lines" for Senate, Assembly, Congressiona l and Board of Equalization districts in the year after the national census is taken at the beginning of each decade. (Cal. Const., art. XXI, § 1, emphasis added.) Given California's tremendous growth over the past decade, particularly in minority populations, lack of timely compliance with this mandate could well result in maladjusted districts violating the federal Voting Rights Act and the "equal population" requirement in subdivision (b) of section 1, article XXI of the state Constitution.

The California Constitution also imposes the conditions that "[e]very district shall be contiguous," "[d]istricts of each type shall be numbered consecutively commencing at the northern boundary of the state and ending at th e southern boundary," and "[t]he geographical integrity of any city, county, or city and county, or any geographical region shall be respected to the extent possible without violating the requirements of any other subdivision of this section." (Cal. Const., art. XXI, § 1, subds. (c), (d) & (e).) These conditions do not exist under federal law.

In answer to the fifth ques tion, therefore, we conclude that the California Constitution imposes requirements or limitations upon the drawing of district boundaries in addition to those of federal law by requiring timely adjustment of district lines in the year after the national census, single-member districts, contiguity, consecutive numbering of districts from north to south, and geographical integrity of cities and counties and geographical regions to the extent possible.

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11. 91-403