The Legal Requirements to Redistrict

Article 8 of the Arkansas Constitution creates the Board of Apportionment and prescribes its duties. It also establishes the number and terms of legislators and requires redistricting of the General Assembly every 10 years after the federal census. With regard to the General Assembly itself, Article 8 states that there will be 100 members of the House of Representatives, and 35 members of the Senate. Representatives have two-year terms (set out more clearly in Section 2 of Amendment 73 to the Arkansas Constitution) and Senators have four-year terms. 

Reference: Article 8: Apportionment - Membership in General Assembly

Beyond that, much of Article 8 is either archaic or has been held to be in violation of the United States Constitution. Some of the duties it prescribes to the Board of Apportionment cannot be performed as envisioned by those who drafted Article 8. For instance, regarding the House of Representatives, Article 8 Section 2 provided that "each county … shall have at least one representative; the remaining members shall be equally distributed (as nearly as practicable) among the more populous counties." Similarly, Section 3 provided that "no county shall be divided in the formation" of senate districts. The United States District Court declared these provisions unconstitutional in 1965 (Yancy v. Faubus, 238 F.Supp. 290) as did the Arkansas Supreme Court (Faubus v Kinney, 239 Ark. 443) and 1981 (Wells v. White, 274 Ark. 197). These courts ruled on the basis of United States Supreme Court cases that required that legislative districts be equal in population as nearly as possible. The counties in Arkansas vary widely in population, and it is not possible for each county to have a representative of its own and also comply with the population equality rule. Justice Purtle stated in the Wells case that where it is "obviously necessary to deviate from county lines in order to achieve … equal population among the districts" the Board of Apportionment must disregard county lines.

Another archaic part of Article 8 is the deadline for filing a plan. Article 8 imposes an impossible deadline of "February 1 immediately following each Federal census" for the Board of Apportionment to complete its work. While this deadline may have been practical when it was written, in modern times Census data have not been released to the states until February, March or April in the year following the census. The Arkansas Supreme Court recognized this problem and held in 1951 that the February 1 deadline need not be met when census data is not available until after that date. Indeed, since the 1950 redistricting the Board has filed its plan well after February 1, and there has not been a legal challenge invoking the February 1 deadline.

Also, the term "apportionment" as used in Article 8 became outdated when the courts ruled Sections 2 and 3 unconstitutional. These rulings changed the Board’s function from a true "apportionment" board to one that actually "redistricts" the state. The word "apportionment", when used in the legislative context, means the distribution of legislative seats to geographic areas that are entitled to representation. For instance, Congress "apportions" House of Representative positions to the states when it decides after the census the number of Representatives each state will have pursuant to a mathematical formula. This was essentially the task of the Board of Apportionment prior to 1965 when it was required to decide how many representatives each county received. Now, the Board of Apportionment actually redistricts the state - its primary function is to draw legislative districts of roughly equal population from which legislators will be elected.

Article 8, as amended and interpreted by the courts, is the legal requirement for redistricting in Arkansas. Federal statutes and constitutional provisions also establish legal guidelines for redistricting in Arkansas.

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