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The Supreme Court and the Freedom to Gerrymander

So far this decade, the Supreme Court has not really weighed in on redistricting. But two cases this term are set to change that — and could result in a renewed freedom for politicians to manipulate maps for partisan or self-serving purposes.

February 17, 2015

So far this decade, the Supreme Court has not really weighed in on redis­trict­ing. But two cases this term are set to change that — and could result in a renewed free­dom for politi­cians to manip­u­late maps for partisan or self-serving purposes.

The first case, Alabama Legis­lat­ive Black Caucus v. Alabama — which the Court heard in Novem­ber — chal­lenges the maps that Alabama Repub­lic­ans drew after taking control of the legis­lature in 2010. Although Repub­lican legis­lat­ive lead­ers say they simply redrew districts to comply with the Voting Rights Act, African-Amer­ican legis­lat­ors say the goal was far more nefar­i­ous. By using the Voting Rights Act as an excuse, they say Alabama Repub­lic­ans packed African-Amer­ican voters into a reduced number of “minor­ity” districts. The effect was to dilute African-Amer­ican influ­ence in the legis­lature and, worse, African-Amer­ican lead­ers argue, to require that those districts be main­tained perman­ently even as popu­la­tion shifts make it harder to draw compact districts in the future.

The Court could decide the case in a number of ways, includ­ing punt­ing it back to the district court for more specific fact find­ing — a route sugges­ted by lawyers for the Justice Depart­ment. The Court also could inval­id­ate the maps by build­ing on its racial gerry­man­der­ing line of cases. But at oral argu­ments, at least some of the justices seemed sympath­etic to Alabama’s argu­ment that it did what it did out of an abund­ance of caution in order to ensure that its maps were approved by Justice Depart­ment offi­cials as then required under the Voting Rights Act.

As Loyola law Professor Justin Levitt has poin­ted out, similar argu­ments have been made by Repub­lican legis­lat­ors else­where in the South to defend maps opposed, in some cases vigor­ously, by minor­ity communit­ies. In North Caro­lina, for example, lawmakers radic­ally redrew maps to create new major­ity-minor­ity districts to replace districts where African Amer­ic­ans, although not a major­ity of the voting age popu­la­tion, had shown a consist­ent abil­ity to elect their community’s preferred candid­ates. As in Alabama, mapdraw­ers in North Caro­lina cited concerns about avoid­ing liab­il­ity under the Voting Rights Act as a justi­fic­a­tion for their actions.

If the Supreme Court rules for Alabama, and holds that the state was entitled to act prophy­lactic­ally in draw­ing districts with larger than needed minor­ity popu­la­tions — even when opposed by minor­ity groups and, moreover, even if its inter­pret­a­tion of the VRA was wrong — it would open the door to wide use of the Voting Rights Act as a pretext to disad­vant­age minor­ity voters. This would be a danger­ous aban­don­ment of tradi­tional judi­cial over­sight of the redis­trict­ing process. Indeed, in the South, where racially polar­ized voting is increas­ingly the norm, it would give polit­ical major­it­ies free rein not only to disad­vant­age minor­it­ies but also to engage in back­door partisan gerry­man­der­ing.

The second case before the Court this term could tie the hands not of courts, but of citizens, to police the redis­trict­ing process and enact other elec­tion reforms. In Arizona State Legis­lature v. Arizona Inde­pend­ent Redis­trict­ing Commis­sion — which the Court will take up in March — the Court will decide whether the inde­pend­ent redis­trict­ing commis­sion created by Arizona voters in 2000 viol­ates the Elec­tions Clause of the U.S. Consti­tu­tion because it was created by ballot initi­at­ive. The Arizona Legis­lature argues that voters acted outside their author­ity when they took power to draw maps away from legis­lat­ors because the Elec­tions Clause requires that the laws govern­ing federal elec­tions be set only by state legis­latures or by Congress.

The Court surprised most observ­ers last fall when it agreed to hear the case. Since the early 20th century, voters have used initi­at­ive power to enact a host of elec­tion laws, includ­ing Oregon’s all mail ballot elec­tion system, Flor­id­a’s consti­tu­tional amend­ment strength­en­ing redis­trict­ing stand­ards, and (iron­ic­ally) the law requir­ing that Arizo­ni­ans prove their citizen­ship before they can be registered as voters. The accep­ted consensus was that legis­lat­ive power could be exer­cised by the people as well as by legis­latures, and, not surpris­ingly, ballot initi­at­ives have proven to be one of the most effect­ive vehicles that ordin­ary citizens have had for over­com­ing resist­ance to change from vested polit­ical interests.

If the Supreme Court agrees with the Arizona Legis­lature and under­cuts the power of voters to reform the broken polit­ical process, then an import­ant check on redis­trict­ing abuses will have been lost. If, in the Alabama case, the Court also allows the Voting Rights Act to be used as a pretext for disad­vantaging minor­ity voters, the free­dom to gerry­mander will be even more unfettered.