Permanent Legislative Committee on Reapportionment

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Redistricting History

A History of 20th And 21st Century Redistricting and Reapportionment
in the State of Alabama

At the outset, it may be appropriate to clarify the difference between redistricting and reapportionment, although the terms are often used interchangeably.

Reapportionment refers to the allocation of seats among states for the House of Representatives. The number of a state's congressional districts is based upon each state's proportion of the national population, counted every ten years. The national total number of congressional house seats remains static at 435, but reapportionment in each state might alter the number of congresspersons that state sends to Washington following the decennial census. Each state sends two senators to Washington, representing the state as a whole, based on population shifts among the states.

Redistricting refers to the more specific task of redrawing of lines for election districts or units. This affects seats in the state house of representatives and senate. The method of dividing Alabama's population into electoral districts has changed several times over the years since the 1901 Constitution was drawn up, but it can be assumed nowadays that seats will be drawn afresh following each decennial census--hence redistricting. However, the process is often referred to as reapportionment. The committee responsible for reapportionment and redistricting is the Permanent Joint Legislative Committee on Reapportionment, adding somewhat to a confusion in use of terms.

This history will confine itself to 20th and 21st Century redistricting and reapportionment. It is not commonly known that the Alabama Legislature (known as the General Assembly until 1901) engaged in redistricting and reapportionment on several occasions in the 19th Century. Indeed, the very first Special Session of the General Assembly was called by Governor Thomas Bibb in 1820, due to the Assembly's failure to redistrict itself in the annual session of 1819, as required by the Constitution of 1819.

The Constitution of 1901 requires the legislature to reapportion itself every ten years. However, the legislature failed to do this between 1901 and 1972, despite several attempts during these years.

In 1939, Governor Frank Dixon proposed (HB10), that if the legislature failed to reapportion itself in the session immediately following publication of the results of each decennial national census, the task would be taken over by a board consisting of the governor, secretary of state, and attorney general. The bill failed, but had it been implemented, the Alabama legislature would have been the closest in the country at that time to the one-person-one-vote standard. (Political Power in Alabama, by Anne Permaloff and Carl Grafton, The University of Georgia Press, 1995; pp. 119-120).

The 1940 Code of Alabama, Title 17, Section 425, sets out the congressional districts, then numbering nine, and section 426 provides for one representative for each district to be chosen by the qualified electors of the districts.

On August 14, 1950, HJR4 appointed a committee consisting of six house members appointed by the Speaker and six senators appointed by the Lt. Governor to study reapportionment. This was the first such study since 1901. On October 7, 1950, Report of Committee was delivered by Earl M. McGowin, Chairman, to the Lt. Governor and Speaker, together with dissenting views. Two studies of reapportionment were made by the Legislative Reference Service at the request of the Joint Legislative Committee to Study Apportionment. These are dated August 25, 1950, and August 1954. The committee recommended delaying action until the results of the 1950 census had been received, due to changes in Alabama's population since the 1940 census. For the various contingent recommendations made by the committee, see "Report of the Joint Recess Committee to Study Reapportionment," October 7, 1950.

In January and February 1956, during the second term of Governor James E. Folsom, the Senate defeated reapportionment attempts. During Governor John Patterson's term, in 1959, another attempt to reapportion was defeated (ibid, pp.120-121). In 1961, following the 1960 census (and the consequent loss of one congressman), more attempts were made at redistricting and reapportionment. They failed. For further discussion of reapportionment through constitutional amendment as opposed to statutory means, and for mention of other redistricting and reapportionment efforts, see the chapter "The Alliance in Disarray" in Political Power in Alabama, referred to above.

On August 12, 1961, fourteen Birmingham residents filed a class action suit in District Judge Frank M. Johnson's court on behalf of all the residents of the State of Alabama. Their suit asked that all members of the Alabama legislature be elected at-large until the legislature abided by its constitutional mandate to reapportion itself. The plaintiffs based their suit on the 1957 and 1960 Civil Rights Acts and the Fourteenth Amendment to the U.S. Constitution.

Following the U. S. Supreme Court's 1962 ruling in Baker v. Carr (369 U.S. 186 (1962)), declaring that federal courts had jurisdiction in legislative reapportionment cases, the district court ordered the Alabama legislature to reapportion itself by July 16, 1962, or the court would do it instead. Governor Patterson called a special session in June, and the legislature passed two reapportionment bills and adjourned. The federal court voided these plans on July 21, 1962, but ordered immediate use of its own plan based on portions of the two legislative bills. Sims v. Frink, 208 F.Supp. 431 (M.D. Ala. 1962).

Membership in the House, effective on the day after the general election to be held in November 1962, was to be apportioned as to 17 representatives for Jefferson County, eight representatives for Mobile County, four representatives for Montgomery County, three representatives each for Calhoun, Etowah, Madison and Tuscaloosa counties, two representatives each for Dallas, Lauderdale, Morgan, Talladega and Walker counties, and the remaining counties to have one representative each. However, as this represented only partial reapportionment, the court ordered the legislature taking office in 1963 to undertake a more thorough reapportionment.

Following the 1960 census, Alabama's congressional delegation decreased from nine members to eight. The legislature passed an act, Act 154 (Senate Bill 224, approved September 15, 1961) whereby, in lieu of redistricting, candidates would be nominated for Congress from the old congressional districts and these nine would then enter a statewide run-off where the top eight candidates would be certified as the party's nominees (the "9-8 plan"). The general election would then be conducted statewide at large. See Ala. Code, Tit. 17 SS 426(2), 426(3) (1940) (1973 cum. supp.).

Although the "9-8" plan was held unconstitutional in Moore v. Moore, 229 F. Supp. 435 (S.D. Ala. 1964), the court allowed the 1964 elections to proceed under the "9-8" plan.

In 1964, congressional reapportionment was again addressed. Act No. 21 (H.114), was passed on August 19, 1964, amending Code 1940, Title 17, Sections 425 and 426, providing for the state to be divided into eight congressional districts. Section 426 provided that each congressional district be entitled to elect one representative in the Congress of the United States, who shall be chosen by the qualified electors of the district at the general election in 1964, and every two years thereafter.

In 1965, congressional districts redrawn in the 1964 legislature were declared unconstitutional on the grounds that they were insufficiently equal. Finally, the legislature adopted a congressional redistricting plan pursuant to Act No. 564 (S.208), 1965 Regular Session, which was upheld by a federal court (cited in Alsup v. Mayhall, 208 F. Supp. 713).

Toward the end of September 1965, the legislature passed a redistricting package that ended rural domination of the state legislature. The redistricting plan for the Senate still supported white supremacy in that only a single district, encompassing Sumter, Choctaw, Washington, and Marengo Counties, had a black majority. The federal court approved the Senate plan for 35 Senate seats (provided by Title 32, Sections 2 & 2(1), Code of Alabama (1940) (Supp. 1967) but rejected as "racial gerrymandering" the House redistricting plan. The legislature refused to deal with House redistricting even though it was under a federal court order to do so, resigning themselves to allowing federal courts to do the job, which it did in Sims v. Baggett, 247 F.Supp. 96 (M.D. Ala. 1965). There were 105 House seats under this plan.

On March 4, 1970, following a class action suit "for preliminary and permanent injunction against election of state legislators from certain counties on county-at-large basis," the federal court denied the petition, denied a motion to dismiss, and declared "hearing on the merits of the case be postponed until the further order of this Court." Nixon v. Brewer, 49 F.R.D. 122, 126 M.D. Ala 1970)

By Act No. 120 (H.94), approved January 19, 1972, Title 17, Section 425 of the Code of Alabama 1940, was again amended to provide for the state to be divided into seven congressional districts.

On January 3, 1972, the U.S. District Court issued its opinion in three consolidated suits, Sims v. Amos, Nixon v. Wallace, and Peters v. Wallace (Civ. A. Nos. 1744-N, 3017-N and 3459-N) claiming that Alabama's then-existing legislative apportionment scheme did not satisfy the principle of one-man, one-vote. The Court adopted an apportionment plan submitted by the Plaintiffs, to take effect in 1974. The plans suggested by the various defendants in the case (state officials and intervenors) preserved the integrity of county lines, as mandated by Article IX (Representation) of the 1901 Constitution, at the expense, the Court found,of wide population variances among the various legislative districts. (Sims v. Amos, 336 F.Supp. 924, 935, (1972)).

At that time, Alabama had a 106-member House of Representatives and 35 Senate seats. The court found that the plaintiffs' proposed plan to reduce to 105 the number of House seats, would divide logically by three resulting in 35 Senate seats, combining three contiguous House districts. "Therefore, once the 105 House districts are established, with a minimum amount of population variance, it is an easy task to construct the Senate districts." (ibid) The plaintiffs' plan was found to meet constitutional standards (with minimal deviation from ideal population per House district) and was to be used in the 1974 election.

Consequent upon imposition of the court ordered Sims v. Amos plan, the Alabama legislature passed a joint resolution (H.J.R.88) on February 10, 1972, creating a permanent joint legislative committee on reapportionment. "This committe[e] shall make a continuous study of the reapportionment problem in Alabama seeking solutions thereto and further shall endeavor to alleviate the inequities of the January 3, 1972 order referred to above (the court-ordered plan)."

On May 15, 1973, Act. No.3 (H.2) was signed into law, "providing for reapportionment of the two houses of the Legislature, so as to provide for single member districts in both the house and the senate, and for the purpose of facilitating the equitable apportionment of representation therein, to create and establish additional wards or voting boxes by subdividing some beats or voting precincts or further subdividing some wards and boxes in certain counties." The Federal court adopted its own plan. The state plan (Act 3) was not used in the 1974 elections. Title 32, Sections 1 and 2, of the Code of Alabama 1940 were repealed.

On May 19, 1981, by Act. No. 81-570 (HJR 349), the legislature resolved to reapportion itself in response to population changes indicated by the 1980 federal census.

On August 18, 1981, Act No. 81-929 (H.1) was signed into law, amending "Section 17-20-1, Code of Alabama 1975, relating to the division of the state into congressional districts, so as to redistrict the congressional districts based upon the 1980 census." The state was divided into seven congressional districts.

Following the 1980 census, the Alabama legislature attempted to provide for redistricting of the two houses by Act No. 81-1049 (S.1), dated October 26, 1981, which was objected to by the Attorney General under SS5 of the Voting Rights Act. This was followed by Act No. 82-629 (H.19), dated June 1, 1982, during its First Special Session, and the legislature was elected pursuant to the districts created in Act No. 82-629. That plan was subsequently litigated and held invalid, causing legislators to serve but one year of the normal four-year term. Burton v. Hobbie, 543 F.Supp. 235 (M.D. Ala. 1982).

By Act No. 83-154 (H.1) (signed on February 23, 1983), the legislature again redistricted itself with a plan precleared by the U.S. Attorney General and approved by a three-judge court on April 11, 1983, in Burton v. Hobbie, 561 F. Supp. 1029 (M.D. Ala. 1983). Another election was held, and those elected served the remaining three years of the quadrennium. (See attached letter from the Attorney General to the U. S. Department of Justice, dated May 21, 1993, for details of this and other plans during the eighties and nineties). This plan was used until after the 1990 census.

The congressional redistricting plan under which the 1994 elections took place was drawn by the United States District Court for the Southern District of Alabama, Southern Division, Wesch v. Hunt, Civil Action No. 91-0787, dated March 9, 1992. This order followed several attempts by the legislature to redistrict; for details see copy letter of March 10, 1992, from Alabama Attorney General to the United States Department of Justice.

The state redistricting plan used during the 1994 elections was drawn pursuant to the Order of the Montgomery County, Alabama Circuit Court in Sinkfield v. Camp, CV-93-689-PR, dated May 12, 1993. See copy letter of May 21, 1993, from the Attorney General to the Chief, Civil Rights Division, U.S. Department of Justice.

This plan (also referred to by the Court as the Reed-Buskey plan because it was drawn in cooperation with Dr. Joe Reed and Representative Buskey) was later found to contain some districts the Court concluded to have been drawn for racially predominant reasons and therefore declared unconstitutional. (See Kelley, et al. v. Bennett as Secretary of State, et al. and Sinkfield, et al., Civil Action No. 97-A-715-E, April 24, 2000). The Court mandated redistricting before 2002 using the latest decennial census figures and not using the offending districts, stating that should any interim election become necessary the court will again hear from the parties and determine any relief.

Following the 2000 Census, the Legislature was called into special session on Monday, June 25, 2001, to consider a new legislative redistricting plan. The legislature passed HB1, sponsored by Representative Marcel Black (who was co-chair of the Permanent Legislative Committee on Reapportionment) and signed into law by the Governor as Act. 2001-729. House Bill 2, a bill specifying the venue for litigation, became Act 2001-728. Senate Bill 2, sponsored by Senator Enfinger, passed both House and Senate and was signed into law as Act 2001-727. Plans were submitted to the Justice Department for approval. Approval of the Senate legislative plan came by letter dated October 15, 2001, and the letter approving the House plan, dated November 5, 2001.

During the 2002 Regular Session, the Legislature passed Senate Bill 22, signed into law, January 31, 2002, as Act No. 2002-57, providing for the redistricting of Alabama's seven congressional seats. The United States Department of Justice approved this plan by letter dated March 4, 2002.

Senate Bill 187, designating new State Board of Education districts, also passed during the 2002 Regular Session. It was signed into law February 7, 2002, as Act No. 2002-73. Justice Department approval was granted by letter dated March 25, 2002.


Why Reapportion?

In 1962, the Bureau of Public Administration of the University of Alabama published a study of the status of representation in Alabama--a state which had not undertaken reapportionment between the years 1901 and 1961....

"Despite provisions of state constitutions requiring the redistribution of legislative seats at regular intervals, publication of the results of the 1960 census revealed that inequities of representation in the state legislatures are severe, and growing.... For example, in Alabama, with single member senatorial districts, the census figures show that the Sixteenth District has a population of 15,417 and the Thirteenth District 634,864.... Inequities are also apparent in the lower house of the Alabama legislature. According to 1960 census data, the smallest district, per representative, has only 6,731 inhabitants while the largest has 104,767. Such is the parody on equal representation today that, over-all, a minority of about 25 per cent of the total state population is in majority control of the Alabama legislature

"The results of rural domination of state legislatures are several. In the first place, the governmental needs of rural districts have changed very little from those which existed a century ago. Rural views on government and its functions, consequently, are conservative views. Status quoism is the philosophy of most rural legislators. Typically, the public problems of the exploding urban centers are handled in an unhurried and restrained manner in the legislative halls of the state capitols. Representatives from the urban districts find, for example, that legislation important for the welfare of urban citizens has great difficulty in clearing legislative committees which are controlled by chairmen from rural counties. Without adequate voting strength, the urban representatives are unable to secure passage for their bills through the usual legislative means of negotiation and compromise. Much badly needed legislation remains bottled up in unsympathetic legislative committees.

"Because of [legislative inaction on the part of states regarding equitable representation], subtle but substantial alterations have taken place in the relationship of the states to the national government.

"'It is useless for the advocates of states' rights to inveigh against the constitutional laws of the United States or against the extension of authority in the fields of necessary control where the states themselves fail in the performance of their duty. The instinct for self-government among the people of the United States is too strong to permit them long to respect anyone's right to exercise a power which he fails to exercise.'" (Robert Bacon and James B. Scott (eds.), Addresses on Government and Citizenship by Elihu Root (Cambridge: Harvard University Press, 1916), p. 369.

Redistricting and the Census

Because legislative representation is made on the basis of population, an accurate census is very important. Work for the census taken in the year 2000 began about five years before, in the Alabama Reapportionment office in 1996, with the receipt of Phase I maps and instructions from the U.S. Department of the Census. Detailed maps of the physical features of each county were mailed to the county authorities asking them to draw boundaries delineating voting precincts. These were to be based upon visible characteristics such as roads, rivers, power lines, railroad lines, etc., but also included city limits which are not strictly speaking visible, but are legal boundaries.

Following return of the many pages of county maps (each county had from six to 100 pages of maps, depending upon its size and complexity), and some corrections by the Reapportionment office to ensure placement of boundaries on the legally required physical features, these were mailed back to the Regional Office of the U.S. Census based in Atlanta. Early in 1999, Phase II maps were sent to the office in Alabama, asking the office to work with counties in numbering and naming each precinct. Precincts were further broken down into blocks for the census takers, the smallest unit of each county.

In Phase III, all state legislatures and governors received Census 2000 population totals under Public Law 94-171, including counts by race and age of majority. All states received these data for standard tabulation areas (e.g., American Indian/Alaska Native areas, county or equivalent area, minor civil division/census county division, place, census tract, and census block).

Based upon data available nowadays in computerized form for each state, legislative districts may be redrawn every ten years taking into account new and shifting population totals. It is the task of the legislature to draw these district boundaries, including congressional boundaries, availing themselves of the skills of the Permanent Legislative Committee on Reapportionment should they so wish. It is not unusual to find three or four separate legislators or other parties working at any given time, in secrecy, with a member of the reapportionment staff to draw up a suggested plan. These plans would then each be proposed for approval by the legislature as a whole, and discussion would then follow before the legislature adopts one plan.

Even when the Legislature approves a plan, such is subject to challenge in the courts. [see The Courts and Reapportionment, chapter 2, Reapportionment in the Seventies. Gomillion v. Lightfoot. (racial gerrymandering) and page 28, single-member districts, and page 31.]

Background for the Permanent Joint Legislative Committee on Reapportionment

Consequent upon imposition of the court ordered Sims v. Amos plan, the Alabama legislature passed a joint resolution (H.J.R.88) on February 10, 1972, creating a permanent joint legislative committee on reapportionment. "This committe[e] shall make a continuous study of the reapportionment problem in Alabama seeking solutions thereto and further shall endeavor to alleviate the inequities of the January 3, 1972 order referred to above (the court-ordered reapportionment plan)."

On April 15, 1982, by the passage of Act No. 82-223 (SJR 223), the life of the Joint Legislative Committee on Apportionment was extended to November 1, 1982. (It was created by Act 80-771, SJR 239, 1980 Regular Session, as amended by Act 81-671, HJR 365, 1981 Regular Session, and Act 81-1068, HJR 58, 1981 Second Special Session.)

On July 8, 1982, by the passage of Act No. 82-725, a supplemental appropriation was made for costs relative to the joint reapportionment committee for the fiscal year ending September 30, 1982.

On January 21, 1983, the passage of Act No. 83-31 (SJR 14), created a Joint Legislative Committee on Apportionment according to the 1980 United States census, and provided for the powers and duties of said committee.

A Joint Legislative Steering Committee on Reapportionment was created by Act No. 87-356 (HJR 315), signed into law on July 2, 1987. It was to terminate upon creation of a Joint Interim Committee on Reapportionment by the legislature.

Act No. 90-388 created a 20-memberPermanent Legislative Committee on Reapportionment, under which the office operates today. Act No. 91-347 changed the number of members to 22.

See Black 3-ring binder for Legislative Redistricting Plan
Letter May 21, 1993, sets out history by Attorney General to U.S. Dept.of Justice, and plan for use in 1994 elections. (exhibits 39 and 40)

See Black 3-ring binder for Congressional Redistricting Plan
Letter March 10, 1992, from Attorney General to U.S. Dept. of Justice, gives overview of plan used following the 1990 census.

List of Sources and Resources

Reapportionment: A report dated August 25, 1950, by the Legislative Reference Service, addressed to the Joint Legislative Committee to Study Reapportionment (HJR4, 1950) (using 1940 census data).
Reapportionment. A revision of the former 1950 Report of the Legislative Reference Service, dated August 1954 (using 1950 census data).
Reapportionment in Alabama, by James E. Larson, published 1955 by University of Alabama.
Reapportionment and the Courts, by James E. Larson, published 1962 by Bureau of Public Administration, University of Alabama.
Reapportionment in the Seventies, published January 1973 by The Council of State Governments
Political Power in Alabama, Permaloff and Grafton, The University of Georgia Press 1995.
Reapportionment Law: the 1990's. NCSL Reapportionment Task Force, October 1989.
Redistricting Provisions: 50 state profiles. NCSL Reapportionment Task Force, 1989.
Election Case Law 1989: A summaryof Judicial Precedent on Election Issues other than Campaign Financing. National Clearinghouse on Election Administration, Federal Election Commission, February 1990.

Historical Timeline for Reapportionment of Legislative Districts in Alabama:

1901 - Electoral Districts Apportioned according to the Constitution of 1901

November 1962-- partial reapportionment, ordered by federal court (Sims v. Frink, 208 F.Supp. 431 (M.D. Ala. 1962)), and based on portions of two reapportionment bills passed in June 1962, (and voided by the Court on July 21, 1962) following U.S. Supreme Court ruling in Baker v. Carr (369 U.S. 186 (1962))

1965 -Redistricting of the Senate through act of the legislature (bill passed September 1965), which the federal court approved. The federal court rejected the House redistricting plan (covered by the same legislation) as "racial gerrymandering." In Sims v. Baggett, 247 F.Supp. 96 (M.D. Ala. 1965), redistricting of the House took place by federal court order.

1972 (to take effect in 1974) - Legislative Districts reapportioned by federal court order, pursuant to three consolidated suits, Sims v. Amos, Nixon v. Wallace, and Peters v. Wallace (Civ. A. Nos. 1744-N, 3017-N and 3459-N). At this time, the number of House members was reduced from 106 to 105 so that there would be 3 House seats for every Senate seat.

1981 - Redistricting by Act of the Alabama legislature (Act No. 82-629 [H.19]), later held to be invalid by federal court, although legislators were elected under this plan and served one year of the quadrennium. Burton v. Hobbie, 543 F.Supp. 235 (M.D. Ala. 1982).

1983 - Redistricting by the Alabama legislature, precleared by the U.S. Attorney General and approved by a 3-judge panel in Burton v. Hobbie, 561 F. Supp. 1029 (M.D. Ala. 1983). Those legislators elected under this plan served the remaining three years of the quadrennium. This plan was used until after the 1990 census.

1993 - Redistricting by Court Order in Sinkfield v. Camp, CV-93-689-PR, May 12, 1993.
This plan was used during the 1994 elections.

2000 - Future redistricting mandated by the Federal Court to be drawn before the year 2002 without using the districts in the Reed-Buskey Plan declared unconstitutional (SDs 21, 25, 29, and 30 and HDs 63, 75, and 86) in Kelley, et al. v. James Bennett as Secretary of State and Sinkfield, et al. (Civil Action No. 97-A-715-E, dated April 24, 2000). Any interim election in these districts needs prior approval of the Court. The Reed-Buskey plan was essentially the plan approved by the Court in Sinkfield v. Camp, which was used for elections during the 1990s. The District Court for the Middle District of Alabama, Eastern Division (Judge Thompson dissenting), concluded that race predominated in the drawing of seven of the nine districts challenged and are thus unconstitutional. On November 27, 2000, the U.S. Supreme Court vacated and remanded the three-judge district court’s ruling that the Reed-Buskey plan was unconstitutional. See Sinkfield v. Kelley, 531 U.S. 28 (2000). So the Reed-Buskey plan continued in force until the Legislature passed the new redistricting plans in 2001.

2001-2002 - Redistricting of House legislative districts was effected by Act No. 2001-729, signed July 3, 2001. The House plan was submitted to the Justice Department on September 6, 2001, and approved November 5, 2001. Act No. 2001-727, signed July 3, 2001, established new Senate districts. The Senate plan was submitted to the Justice Department on August 15, 2001, and approved October 15, 2001. Act No. 2002-57 established new congressional districts. The plan was submitted to the Justice Department on February 1, 2002, and approved March 4, 2002. Act No. 2002-73 established new State Board of Education districts. The plan was submitted to the Justice Department on February 7, 2002, and approved March 25, 2002.