______________________________________ 

______________________________________________________________________________ 

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 Act and the California Constitution require

that geographically compact racial minority communities of interest not be divided in a redistricting

plan? 

4. Under what criteria must a redistricting 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 Act, 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. 91-403
 
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, 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 circumstances, 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 districts, contiguity of districts, consecutive numbering

of districts from north to south, and the geographical 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, Board 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 offices will take place on June 2, 1992. (See Elec.

Code, § 2551.) 

2. 91-403
 
 

 

 

The questions posed not only concern provisions 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; hereafter 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 political 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 process 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 background in mind, we turn to the individual

questions presented. 

1. Criteria for Creating District Boundaries 

The first question presented is whether the creation of a "majority-minority" district

(one in which a racial or language minority group 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 recognized 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 principle of "one person, one vote." Since Baker v. Carr 

(1962) 369 U.S. 186, the United States Supreme Court has developed and enforced the "one person,

one vote" principle in the legislative districting context regarding inequalities in population between

districts. The size of state legislative 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, integrity, 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 intent 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 certain electoral law, practice, or structure interacts

with social and historical conditions to cause an inequality 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 judgment, 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 which the voter votes." (Thornburg v. Gingles, supra, 478 U.S. 30, 53, n. 21.) 

4. 91-403 
 

1987) 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, therefore, create majority-minority districts for the

purpose of avoiding violation of section 2 of the 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 districts is exactly what the Voting Rights Act

authorizes"].) 

It is important to note that under the "results 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 applications of the "results test" that upheld multimember districts where the totality of the circumstances did not otherwise 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 access 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 voting. "[T]he results test makes no assumptions one

way or the other about the role of racial political considerations 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 political 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. However, in light of the legislative history and

decisions construing section 2, we conclude that section 2 of the Voting Rights Act does not

categorically make creation of majority-minority districts 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 jurisdictions4 may take precedence over all other criteria

used to draw district boundaries, except for the "one person, one vote" requirement. 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 

4 
prerequisite, 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 example, 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 strength is reduced by the proposed redistricting" (28

C.F.R. § 51.59(b) (1991)); and [t]he extent to which 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 way of ensuring preclearance (see, e.g., United Jewish Organizations

et al. v. Carey (1977) 430 U.S. 144), and, by virtue of the supremacy clause of the United States

Constitution (U.S. Const., art. VI, § 2), satisfaction of section 5 preclearance 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 correct approach in setting forth the

hierarchy of criteria for drawing district boundaries. 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 Act arises out of the Constitution's

express vesting of power in Congress 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 state 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, therefore, we conclude that, where necessary to

prevent minority vote dilution, considering the totality of the circumstances, the creation of

majority-minority districts takes precedence over all 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 section 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 choosing, if such a district can be created. We 

conclude that it generally does. 

6. 91-403
 
 

 

In 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 Protection 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 exactly what the Voting Rights Act authorizes." (Id., at p.

776.) 

We are presented with the possible creation of a district with a high enough minority

population so as to guarantee5 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 Garza6 that it "deliberately minimizes minority 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 such a plan would remain

undiscovered by the time it was proposed or adopted, 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 the 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 purpose 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 section 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 district) not be divided when

drawing district boundaries. By the phrase, "geographically 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 political cohesion, and racial bloc voting) into

the question posed. 

6

Thornburg v. Gingles, supra, 473 U.S. 30, expressly did not address "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. 91-403
 
 

 

In 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-member 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 indispensable 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 extent 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 Hispanic voting power in violation of section 2" and

it "intentionally discriminated against Hispanics 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 discrimination at the time the challenged districts

were drawn." (Ibid.) 

Accordingly, a geographically compact racial minority 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 believe 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 divided 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 congressional districts criticized for having "the effect

of diluting the San Carlos Apache Tribal voting strength and dividing the Apache community of

interest"].) 

Section 2 is clearly intended to secure fair access to the political process, unimpaired

because of race, color, or membership in a minority language group. While mere numerical inability 

7

With complete reporting of population data, including racial data and voting age information,

contained in the federal census for local geographic 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. 91-403
 
 

 

 

to elect a representative may not, standing alone, establish 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 majority 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 minority 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 districts, 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 such districts 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 protection 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 court10 reasoned that a redistricting plan would 

8

In 1980, the ballot argument in favor of Proposition 6 (adding article XXI to the California

Constitution) explained that section 1, subdivision (e) would "help protect 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 plurality 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. 91-403
 
 

survive 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 difficult 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 shown to be intentionally discriminatory 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 whole. [¶] ... [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 must 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 would 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 depart from those contained in the California

Constitution, which are presumably expressions of valid state interests, would be closely examined.

As mentioned earlier in our response to the first question, preservation of incumbencies11 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 discriminatory and imposes an actual discriminatory

effect. 

5. California Constitutional Requirements 

The fifth question presents the issue of the extent to which the 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. 

11According 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. 91-403
 
integrity of any city, county, or city and county, 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 the "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]ach member 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, Congressional 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 the 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 question, 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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