Explore these topics:
*What’s Gerrymandering?
*The State of Play Today
*How to Say Goodbye to Gerrymandering
Gerrymandering: One Person, One Vote?
The name of the game in partisan redistricting is vote dilution. In a two-party race, a candidate needs only fifty per cent plus one to win. Every extra vote cast for that candidate is a wasted vote, as is every vote for the loser. You can’t literally prevent your opponents from voting. So wasting as many of the other party’s votes as possible is the next best thing.
– Louis Menand
(Capital-Star Editorial Cartoon by John Cole)
What’s Gerrymandering?
Gerrymandering Explained
The practice has been a thorn in the side of democracy for centuries, and with the new round of redistricting it’s a bigger threat than ever.
https://www.brennancenter.org/our-work/research-reports/gerrymandering-explained
[Excerpt:]
After the Census Bureau releases detailed population and demographic data from the 2020 census on August 12, states and local governments begin the once-a-decade process of drawing new voting district boundaries known as redistricting.
And gerrymandering — when those boundaries are drawn with the intention of influencing who gets elected — is bound to follow.
The current redistricting cycle will be the first since the Supreme Court’s 2019 ruling that gerrymandering for party advantage cannot be challenged in federal court, which has set the stage for perhaps the most ominous round of map drawing in the country’s history.
Here are six things to know about partisan gerrymandering and how it impacts our democracy.
After the Census Bureau releases detailed population and demographic data from the 2020 census on August 12, states and local governments begin the once-a-decade process of drawing new voting district boundaries known as redistricting. And gerrymandering — when those boundaries are drawn with the intention of influencing who gets elected — is bound to follow.
The current redistricting cycle will be the first since the Supreme Court’s 2019 ruling that gerrymandering for party advantage cannot be challenged in federal court, which has set the stage for perhaps the most ominous round of map drawing in the country’s history.
Read this article to learn “six things to know about partisan gerrymandering and how it impacts our democracy”.
Drawing Lines
Our undemocratic democracy
By Louis Menand
August 15, 2022
[Excerpt:]
The name of the game in partisan redistricting is vote dilution. In a two-party race, a candidate needs only fifty per cent plus one to win. Every extra vote cast for that candidate is a wasted vote, as is every vote for the loser. You can’t literally prevent your opponents from voting. Even the current Supreme Court, which has hardly been a champion of voting rights since John Roberts became Chief Justice, would put a stop to that. So wasting as many of the other party’s votes as possible is the next best thing. And, in most states, it’s perfectly legal. The terms of art are “cracking” and “packing.”
[Boldface added]
You crack a district when you break up a solid voting bloc for one party and distribute those voters across several adjacent districts, where they are likely to be in the minority. Once it’s cracked, the formerly solid district becomes competitive. This is sometimes called “dispersal gerrymandering.”
When you pack, on the other hand, you put as many voters of the other party as possible into the same district. This arrangement means that their candidate will usually get a seat, but it weakens that party’s power in other districts. From a civil-rights point of view, districts in which members of minority groups are in the majority might seem like a good thing, but Republicans tend to favor majority-minority districts because they reduce the chances that Democratic candidates will win elsewhere in a state.
Partisan redistricting is why Republicans won five of Wisconsin’s eight congressional seats in 2020 even though Biden took the state. Biden carried the Fourth Congressional District, which includes Milwaukee, by fifty-four percentage points. Was that district packed? Not necessarily. The tendency of Democrats to concentrate in densely populated urban areas naturally tends to dilute their votes statewide. But partisan redistricting helps explain why Republicans won sixty-one of ninety-nine seats in Wisconsin’s State Assembly and ten of the sixteen contested seats in the State Senate. Wisconsin is justifiably considered a major success story by Republican redistricting strategists.
How Redistricting Affects The Battle For State Legislatures
https://fivethirtyeight.com/features/how-redistricting-affects-the-battle-for-state-legislatures/
[Excerpt:]The U.S. House of Representatives isn’t the only chamber whose district lines are being redrawn to reflect the 2020 census. State-legislative chambers are being redistricted too — and as we’ve written in the past, state legislatures are often where the laws that have the biggest impact on people’s daily lives are passed. In the last year, state legislatures have passed numerous new election laws, abortion restrictions, anti-transgender laws and more.
The book isn’t closed on legislative redistricting quite yet — seven states still don’t have new maps — but one trend is already clear: Just as congressional redistricting is producing fewer swing districts, very few state-legislative chambers will be competitive this decade.
Of course, we wouldn’t expect solidly Republican or solidly Democratic states to have competitive legislatures no matter how their maps are drawn, so we’ll only be focusing on battleground states in this article. But according to our analysis of state-legislative redistricting (using the same tools we use to analyze congressional redistricting on our redistricting tracker), as well as conversations with experts in state-legislative elections, the legislatures in even many battleground states have been drawn to give one party a clear advantage.
That is not a new development, but we also found that redistricting changed the electoral calculus in several battleground states: Some legislative chambers got more competitive, while other previously contested chambers got sewn up for one party. So join us for an all-expenses-paid tour through all the state capitols you might (rightly or wrongly) expect to be up for grabs this decade.
The State of Play Today
“ACLU and LWV sue over partisan gerrymandering of South Carolina congressional districts”
SOUTH CAROLINA (WSAV) – The American Civil Liberties Union (ACLU), ACLU of South Carolina, and Duffy & Young LLC filed a lawsuit today challenging partisan gerrymandering of South Carolina’s congressional districts.
The lawsuit comes after redistricting following the 2020 census, a tradition at the beginning of each decade involving redrawing the lines of congressional districts to meet population requirements. In this case, the suit alleges that the boundaries of the state’s First Congressional District (which includes Charleston, Beaufort and Bluffton) were drawn with a Republican advantage; a manner, they say, that violates the South Carolina Constitution.
Brandon Johnson: “There’s ‘Clear Error’ in the Supreme Court’s New Racial Gerrymandering Decision
The following is a guest post from Brandon Johnson:
The Supreme Court has made a habit of applying general rules of law in exceptional ways when deciding election law cases. The Court has, for example, elevated the holding in Purcell to a quasi-abstention-level “principle” to limit federal courts’ abilities to review election regulations; it has changed the rules for reviewing state court interpretations of state law if the law at issue governs federal elections; and it has significantly expanded the reach of the political question doctrine to prevent judicial review of redistricting. I will be addressing this trend in full-length article treatment in the coming year, but it is worth noting the continuation of this practice with the Court’s decision in Alexander v. South Carolina State Conference of the NAACP in which it has introduced exceptional rules for reviewing a lower court’s factual finding in racial gerrymandering cases.
Before walking through the exceptional nature of this opinion, a brief sketch of the case will provide some necessary context. In 2018, South Carolina congressional district 1—a previously reliably Republican district—elected a democratic candidate to Congress. After the 2020 census, District 1 and District 6—the state’s only reliably Democratic district—needed to be adjusted due to population disparities.
The resulting new map was subject to a lawsuit alleging that the new District 1 was an unconstitutional gerrymander. South Carolina categorically denied considering racial data at all in crafting the new district maps. At trial, South Carolina asserted, for the first time, that the new District 1 was drawn to serve partisan goals of ensuring that the district would once again be a safe Republican seat. After a lengthy litigation process, a three-judge district court found in favor of the plaintiffs and held that District 1 was, in fact, created in violation of the Fourteenth Amendment. The district court made several factual findings supporting this conclusion including crediting the plaintiff’s expert testimony and discrediting the State defendant’s denials that they used racial data in crafting the new maps.
The State sought and received review in the Supreme Court. In a 6-3 opinion authored by Justice Alito, the Court reversed the district court’s decision, allowing the new map to go into effect.
Because the district court’s decision rested in large part on factual findings, it would in the ordinary course be subject to clear error review on appeal. It is at this point that the exceptional nature of the Supreme Court’s majority opinion, authored by Justice Alito, starts to emerge.
From the opinion’s first discussion of the clear error standard, it is apparent that this will not be “clear error” as usual. Less than two pages after explicitly stating that the Court will “dispose of the case on clear error grounds,” the opinion backs away from the traditional formulation of the clear error standard, asserting that the three-judge court’s “mistaken impression of legal principles” means that the Court here “is not bound by the clearly erroneous standard.”’
Justice Alito wades into each of these factual findings, from expert reports to inferences drawn from the racial makeup of the new districts to similar inferences drawn from the racial makeup of the precincts moved around during the redistricting, and determines that because another “reasonable” explanation was available for each in isolation, it was somehow “clearly erroneous” for the district court to reach a different conclusion. But nowhere does the majority demonstrate that this alternative conclusion was unreasonable. This is exactly the type of discretion lower courts are typically given. As the Court stated in, Anderson v. Bessemer City,which has become a canonical case on clear error review (and in fact, was cited for the clear error standard by Justice Alito), “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” But by crediting one “reasonable” interpretation over another, the majority opinion makes this exact choice.
Nor does the majority point to overwhelming evidence in support of the State’s position to justify its determination that the lower court clearly erred in its findings. Instead, the opinion walks through the substantial amount of evidence that the NAACP presented in support of their position (and which the three-judge panel relied on) and points out perceived weaknesses in each of these pieces of evidence. The opinion spends nearly ten of its thirty-five pages, for example, poking holes in the methodology used by the plaintiff’s experts.
As Justice Kagan makes clear in dissent, the majority had to take this approach to reach its desired result because the State never produced conflicting expert testimony of its own. Instead, at trial, the only expert testimony offered in defense was a similar attempt to discredit the plaintiff’s methodology. So, despite what the dissent calls the majority’s declaration that “it knows better than the District Court what happened in a South Carolina map-drawing room to produce District 1,” Justice Alito’s opinion does not identify record evidence that the three-judge court overlooked.
The majority even goes so far as to reverse a credibility finding of the lower court, typically a no fly zone on appellate review. The three-judge court found that testimony by Will Roberts—the “nonpartisan staffer” who created the maps at issue—that racial data was taken into account only after the initial maps were drawn in order to ensure compliance with the Voting Rights Act was not credible. But again, the dissent fleshes out the narrative painted by the majority, making clear there was ample reason for the district court to question the veracity of this statement, especially given Roberts’ testimony that this was the first occasion in his 20-year career of redistricting that he did not look at racial data. Adding more fuel to the skepticism fire, the dissent also pointed out that “Roberts configured maproom computers to show how every line-drawing decision would affect the new District 1’s racial make-up.” (Id.)
In support of the unusual step of undermining this credibility determination, by contrast, Justice Alito merely posed the following hypothetical: “Why would Roberts have used racial data—with the associated legal risks—as a proxy for partisan data when he had access to refined, sub-precinct-level political data that accounted for voter turnout and electoral preferences?” But this again simply faults the district court to coming to the opposite conclusion. Justice Alito’s question could easily be flipped on its head and we could ask why someone wanting to account for racial data when redistricting would need to do so explicitly—“with the associated legal risks”—when partisan data is a sufficient proxy for the relevant racial demographics. Interpreting testimony, especially the credibility of a live witness before the court, based on a disagreement with a competing interpretation is well outside the traditional bounds of clear error review.
The opinion also moves the goalposts for what is required of plaintiffs bringing racial gerrymandering claims. As others have already observed, one impact of the opinion here is that plaintiffs will now be essentially required to produce a model map that would have the same partisan effect with a different racial makeup in order to succeed on their claim. The wisdom of such a requirement aside (I will leave that to better minds), the way in which Justice Alito imposes this requirement demonstrates another departure from run-of-the-mill clear error review. The opinion not only transforms a permissive way of proving a racial gerrymandering case into a required way, but it also asserts that the failure to proffer the preferred form of proof requires an adverse inference from the court. Even more, a district court’s failure to make a previously unrequired adverse inference amounts to clear error. This is a far more demanding standard than we expect from the highly deferential clear error standard.
The point here is not just to identify the unusual way in which the Alexander majority applied the clear error standard—the dissent does an excellent job of identifying each of these departures—instead the goal here is to point out how usual it is for the Court to do something unusual when deciding election law cases.
Nor is the argument here that the Court is doing something unprecedented in reversing a redistricting decision under the clear error standard. Indeed, the Court did just that in 2001 with a reversal of the ideological makeup of the majority and dissent. In Easley v. Cromartie, (Cromartie II) Justice Breyer authored a 5-justice majority reversing a “three-judge District Court’s determination that North Carolina’s Legislature used race as the ‘predominant factor’ in drawing its 12th Congressional District’s 1997 boundaries.” The majority did so under the clear error standard by wading through the evidence presented at trial. And it did so in the face of Justice Thomas’s dissent (joined by three other conservative justices), that accused the majority of engaging in “extensive review” of the facts, which was not appropriate under the clear error standard. But this shows only that this exceptional application of clear error has been part of election law jurisprudence for some time. It actually reinforces the idea that relatively “neutral” or trans-substantive aspects of the law have been, and continue to be, applied in exceptional ways in the specific context of election law.
Of course election law is not unique in receiving exceptional treatment from the courts (other prominent—if contested—examples include immigration law, tax law, and criminal law). But there is something especially troubling about how the Court has consistently applied supposedly uniform legal principles in decidedly non-uniform ways. Given the unelected nature of the Court and the perception (if not the reality) of political ends driving judicial opinions in this sphere, deviations from standard application of well-settled law adds well-deserved credence to charges that the Court is an anti-democratic force in American government. This is a problem entirely of the Court’s own making, and it will continue to gain steam the more frequently we see the prevalence of election law exceptionalism.
“Supreme Court ruling makes it harder to bring racial gerrymandering claims”
Nina Totenberg reports for NPR.
“Self-Districting Solves the Problem of the Supreme Court’s South Carolina Case”
New Common Ground Democracy essay on the Supreme Court’s decision yesterday involving South Carolina’s congressional districts. There’s a way to avoid all the difficulties, and disagreements, over the relationship of race to redistricting: it’s to give the decision of what district a voter is in to the voters themselves, rather than to the government. The essay explains how this could be done, drawing from my Kentucky Law Journal article on the same idea.
“New racial gerrymandering lawsuit takes aim at South Florida’s powerful congressional districts”
South Florida has another racial gerrymandering fight on its hands, and the outcome could dictate who gets sent to Washington and Tallahassee to represent millions of local residents.
A swath of plaintiffs from Miami-Dade County, including progressive political advocacy groups Engage Miami and Cubanos Pa’lante, as well as the ACLU Club of Florida International University, have filed a lawsuit against the Florida House of Representatives in federal court alleging a broad scheme of gerrymandering that violates the 14th Amendment of the U.S. Constitution. The groups are represented by the ACLU of Florida and law firms out of New York and Washington, D.C.
The lawsuit takes aim at four U.S. congressional districts in South Florida : Districts 19, 26, 27 and 28. It also challenges seven Florida House of Representatives districts: 112, 113, 114, 115, 116, 118 and 119. All the district seats named in the lawsuit are held by Republican representatives. (A copy of the complaint is embedded at the end of this story.)
“South Carolina Republicans ask justices to let district ruled a racial gerrymander go forward”
Amy Howe for SCOTUSBlog:
Telling the justices that if they do not intervene they will create “confusion and uncertainty over this year’s elections,” a group of Republican lawmakers from South Carolina came to the Supreme Court this week, asking the justices to block a ruling by a federal court holding that one congressional district in the map adopted by the state’s Republican-controlled legislature was an unconstitutional racial gerrymander. With the primary elections looming, the legislators contend, the state’s 2024 congressional elections should be allowed to go forward as scheduled using the map adopted by the legislature.
The dispute centers on the map adopted by the South Carolina legislature in 2021 for the state’s seven seats in the U.S. House of Representatives. The map moved nearly two-thirds of the Black voters in Charleston County out of District 1, which is currently represented by Republican Nancy Mace, into District 6, which is represented by Democrat Jim Clyburn. The new map also moved Republican areas in three nearby counties from District 6 into District 1.
The petition is here.
It seems to turn Purcell on its head, arguing that the Court should intervene to change the status quo when the district court refused to do so.
“Partisan Gerrymandering Cases in State Supreme Courts in the 2020s Redistricting Round”
Jonathan Cervas, Bernie Grofman, Scott Matsuda, and Justine Kawa have posted this draft on SSRN. Here is the abstract:
After the U.S. Supreme Court opted out of any federal court role in policing partisan gerrymandering in its 2019 decision, Rucho v. Common Cause, if a redistricting plan was alleged to be a partisan gerrymander, that challenge needed to be brought in state courts. There are three possibilities: (a) a state supreme court could hold partisan gerrymandering claims nonjusticiable under state as well as federal law; (b) it could review a proposed map and find it unconstitutional; (c) it could review a map and reject the gerrymandering claim. Here, we focus on state court decisions that took place before the November 2022 elections in partisan gerrymandering claims regarding maps drawn for elections to the U.S. House of Representatives in the 2020s redistricting round. We are primarily interested in three issues: (1) How did state courts faced with a redistricting challenge based on a claim of partisan gerrymandering decide whether state law allowed them to address the factual aspects of the claim rather than treating the claim as non-justiciable? (2) If the court decided the claim was justiciable, what definition of partisan gerrymandering was used and, in particular, what kind of empirical evidence was cited by the justices – e.g., measuring the extent of gerrymandering via metrics based on election data, and/or evaluating maps in terms of the degree to which traditional good government criteria were satisfied, and/or considering the process of map drawing and what it implied about partisan intent? (3) Is there indirect evidence that the partisan predilections of the justices affected their decision about the constitutionality of a challenged congressional map?
“Republicans Launch Two-Pronged Attack Against Voting Rights Act”
TPM:
In their endless quest to further defang the Voting Rights Act and gerrymander their way into permanent control, Republican officials have launched a double-headed attack on the landmark civil rights law.
The new attacks emerge as Republican politicians attempt to wriggle out of judges’ orders requiring that they draw additional, majority-minority, likely Democratic districts in their states, which could imperil their party’s thin majority in the House of Representatives.
The attacks on the already-weakened VRA take two forms: arguing that the law doesn’t protect districts controlled by coalitions of multiple minority groups, and that only the U.S. attorney general — not individual voters represented by good government groups, as is most common — can bring lawsuits under the section of the law concerning illegal vote dilution.
Winning isn’t everything, especially in democracy
https://press.princeton.edu/ideas/winning-isnt-everything-especially-in-democracy
[Excerpt:]One key way in which the principle of democratic representation has been undermined is through extreme partisan gerrymandering. The state legislative maps adopted in Wisconsin after 2010, for example, have ensured Republican victories in a majority of seats ever since even though it is a closely divided purple state. In 2012, thanks to the aggressively gerrymandered electoral maps, Republicans won 60 state assembly seats with only 48.6% of the statewide vote. In 2018, with only 44.8% of the statewide vote, Republicans still netted an astonishing 63 seats. And in 2022, despite an almost evenly divided electorate, Republicans won 64 of the 99 seats in the state assembly, a near two-third majority. The same pattern was replicated, and indeed exacerbated in the case of the state senate maps.
In Wisconsin, as in many states, state legislatures have almost exclusive control over the process of drawing electoral maps, which meant that only the Republican lawmakers who had created maps that assured their party would forever remain in power had the ability to create new maps that would allow for fairer representation of the state’s voters. The only other option against gerrymandering was appealing to the courts to throw out unfair maps, and in 2019 the Supreme Court disallowed federal intervention. This left such challenges in the hands of state supreme courts, and Wisconsin’s Republican-controlled court imposed the legislature’s preferred maps. But the decision by Wisconsin voters to elect Janet Protasiewicz to a vacant seat on the state’s seven-member supreme court in 2022 ended the court’s conservative majority, thus opening the door for a successful challenge to the state’s electoral maps.
In response, GOP officeholders now seem bent on creating a state constitutional crisis by trying to change the rules of the game after Protasiewicz’s victory. They are threatening to impeach her before she has even had a chance to rule on a case. This unprecedented move would be only the second vote by the Assembly to impeach a state judge in Wisconsin history. The Republican-controlled legislature’s naked refusal to abide by the will of Wisconsin’s voters would be even more clearly revealed for what it is—an unconstitutional power grab—if the Assembly voted to impeach the justice but the Senate refused to take any action. In that case, instead of Democratic Governor Tony Evers being able to appoint her replacement (as would happen if she were convicted and removed from office), Protasiewicz would be suspended from all official duties and the court would be deadlocked. Were the legislature to go through with impeachment they would be nullifying the results of a fairly contested election and refusing to accept a legitimate electoral loss.
To state the obvious, ceding power is difficult. But this is what democracy demands of politicians and voters alike on a regular basis. For democracy to function legitimate political loss must be routinely accepted. Those who refuse to accept loss when there is no evidence of fraud or other improprieties often resort to arguing that the loss is illegitimate by virtue of the victory having being achieved by means of the participation of the “wrong” kinds of voters. In Wisconsin and elsewhere, for example, election deniers have argued that Democratic victories were suspect because they relied on votes by various kinds of others (such as non-whites, especially Black voters in large cities, and urban rather than rural voters) or on the influence of outsiders (such as temporary residents like college students and funding from out-of-state donors). But in modern mass democracies we are fellow citizens with many kinds of others, and their views have as much political weight as our own, even when we vehemently disagree with them.
Part of the problem in Wisconsin is that the gerrymandering Republicans used to assure themselves of winning meant that they have rarely had to lose in recent state elections. As a result, they have not had to practice the key democratic capacity of accepting legitimate loss. For the sake of democracy in Wisconsin (and the US as a whole), they need a crash course in how not to be sore losers. As a society, we recognize how necessary it is for adult relationships to not be sore losers (or bad winners), so there are children’s books that teach kids these skills. It seems that we need to send many of our elected officials to democracy school. Losing well is not only an important life lesson, it is also a key civic capacity that is vital for democratic survival.
Fifth Circuit Affirms Holding that Louisiana Likely Violated Voting Rights Act in Drawing Congressional Districts, Requires New Maps Be Drawn By January
The unanimous panel decision not only found that the state likely violated Section 2 in failing to create a second black majority congressional district. It also rejected the state’s argument that private plaintiffs have no right to sue under Section 2, an issue that has been percolating in the lower courts after a couple of Supreme Court Justices raised it.
From the NYT coverage:
Jeff Landry, the state’s Republican governor-elect, was expected to call a special legislative session to address the issue. But Mr. Landry will not be inaugurated until Jan. 8, making it unclear whether lawmakers would have enough time to decide on a new map before the Jan. 15 deadline. He could not immediately be reached for comment on Friday.
It was not clear whether the outgoing governor, John Bel Edwards, a Democrat, would call for a special session before the end of his term. “I remain confident that we will have a fair map with two majority Black districts before the congressional elections next year,” he said in a statement.
Gerrymandered districts are not representative democracy
This is not representative democracy. Partisan gerrymandering is undemocratic and needs to be eliminated. This map dilutes the Black voting population, entrenches Republican supermajorities and renders voters’ input meaningless. It is outrageous and wrong that in a consistently purple state such as North Carolina, the legislature is a supermajority, districts are not competitive and election outcomes are predetermined regardless of turnout.
Perhaps if the North Carolina GOP adopted mainstream policies with strong public approval rather than its current radical, extremist agenda, it wouldn’t need to be afraid of the state’s voters.
Curtis Kelly, Hillsborough, N.C.
A federal judge says Georgia’s political maps must be redrawn for the 2024 election
FROM
Travis Crum: “Stopping Alabama’s Defiance of the Voting Rights Act”
The following is a guest post from Travis Crum:
Alabama is once again the frontline of the fight for voting rights. After two years of litigation, Alabama now has two Black-opportunity congressional districts. But unfortunately, there are shockingly few barriers to Alabama nullifying this victory in the near future, either through a mid-decade redistricting or after the 2030 Census. Alabama, therefore, should be “bailed-in” to the Voting Right Act’s (VRA) preclearance regime and be required to seek federal approval of any congressional redistricting plans for the next ten years.
To understand why this strong remedy is appropriate, one needs only to look at the history of the Allen v. Milligan litigation. Following the 2020 Census, Alabama enacted a congressional redistricting plan that created one majority-Black district out of seven districts, even though the State’s voting-age population is 27% Black. Civil rights groups challenged that plan under Section 2 of the VRA and convinced a three-judge district court with two Republican-appointed judges to preliminarily enjoin the plan. Instead of redrawing its congressional map, Alabama promptly obtained a stay on the Supreme Court’s shadow docket by a 5-4 vote. That stay, along with similar moves in cases against other Southern States, may have cost Democrats the House in 2022.
Then, in a surprising 5-4 decision this past June, the Supreme Court rejected Alabama’s attempt to rewrite the VRA and sided with the civil rights groups. In response, Alabama’s legislature adopted a plan in which the second Black-opportunity district was only 40% Black. The district court rejected that map for failing to abide by its prior ruling that “any remedial plan will need to include two districts in which Black voters either comprise a voting-age majority or something quite close.”
Alabama returned to the Supreme Court and sought a stay of that decision. With no noted dissents, the Supreme Court denied the stay. In some ways, this second shadow docket ruling is unsurprising: what began as a dispute about race and redistricting was re-framed as one about judicial power. Even the Court’s conservatives appear wary of a State openly flouting its rulings.
And last Thursday, the district court adopted a remedial plan that creates two Black-opportunity districts. Alabama has signaled that it will use this plan for the 2024 midterms.
But what is to stop Alabama from redrawing its congressional map for the 2026, 2028 or 2030 elections? Unfortunately, not much. Alabama’s Constitution prohibits mid-decade redistricting of state legislative districts, but it’s silent about congressional maps. There’s nothing in the U.S. Constitution barring mid-decade redistricting, and the Supreme Court declined to prohibit the practice in a case stemming from Texas’s mid-2000s redistricting. Even if Alabama doesn’t engage in mid-decade redistricting, it could once again crack the Black Belt after the 2030 Census.
Courts would likely look at any new map afresh. Indeed, as Texas’s actions in the voter ID case and its 2010 redistricting saga showcase, courts are loath to input the behavior of a past legislature onto a future one, thereby laundering discriminatory animus across multiple redistricting plans.
Prior to the Supreme Court’s 2013 decision in Shelby County v. Holder invalidating the VRA’s coverage formula, Alabama could not have dismantled the second Black-opportunity district and thereby circumvent its loss in Milligan. That is because Section 5 of the VRA prohibited the retrogression of minority voting strength, and federal authorities would not have precleared such a plan. But Shelby County effectively neutralized Section 5.
So what is the solution? Known as the bail-in provision, Section 3(c) of the VRA authorizes courts to impose preclearance in response to a violation of the Fourteenth or Fifteenth Amendments. To be clear, the district court has not yet made such a determination, which requires a finding of discriminatory intent. So far, the three-judge district court has focused on a statutory violation of Section 2 of the VRA, which only requires a discriminatory result. But Alabama’s flagrant disobedience of the court’s order is strong grounds for bringing a bail-in request based on Alabama’s discriminatory intent.
In a 2006 decision, the Supreme Court opined that the dismantling of a Latino-opportunity district “bears the mark of intentional discrimination that could give rise to an equal protection violation” because Texas “took away the Latinos’ opportunity because Latinos were about to exercise it.” A similar logic applies here. Alabama had been ordered by a court to create a second Black-opportunity district, and when faced with that choice, Alabama opted for defiance rather than compliance.
Furthermore, this fact pattern is the precise reason why preclearance was an appropriate remedy. During Jim Crow, plaintiffs would obtain favorable judicial rulings only to see the Southern jurisdiction change its law in response. This game of whack-a-mole led to preclearance as an innovative solution that froze in place minority voters’ wins against recalcitrant States.
Alabama’s defiance is also a reminder that Congress needs to pass voting rights reform. One of the provisions of the John R. Lewis Voting Rights Advancement Act would make it possible to impose preclearance in response to statutory violations. But even absent that legislation, Alabama can—and should—be required to preclear its congressional plans for the next ten years.
New York: “Redistricting case that could influence control of Congress set for Nov. 15”
The fight for control of Congress will face a crucial early battle in November when the state Court of Appeals will hear arguments on whether New York’s congressional boundaries should be redrawn.
On Nov. 15, the state’s highest court is scheduled to take up the consequential redistricting case that has the ability to heavily influence New York’s congressional boundaries during elections next year and for nearly the next decade.
A lower court ruled in favor of Republicans who argued the boundaries redrawn by a court after Democrats had improperly created them — and in ways that favored their party — should remain in place. But a split decision by a mid-level appellate court in Albany recently reversed that ruling in favor of the Democrats.
Now the Court of Appeals will again review the case, after it issued a ruling 17 months ago striking down the Democrat-drawn political boundaries for the state Senate and Congress that had been established by the Democrat-controlled Senate. Their decision affirmed lower court rulings that the new boundaries were intentionally gerrymandered for political gain.
“Redistricting redux: North Carolina lawmakers to draw again new maps for Congress and themselves”
With a new state budget completed, North Carolina legislators now turn their attention yet again to mapping the state’s congressional and General Assembly districts.
The House and Senate redistricting committees scheduled hearings this week — the last one happened Wednesday in Raleigh — to receive public comment about the process of drawing district boundaries that would be used in the 2024 elections and for the remainder of the decade.
Redistricting in North Carolina seems to be endless. Since 2011, six different versions of maps for the state’s congressional delegation, the state House and state Senate have been enacted by courts or lawmakers, although not all were used in elections….
Wisconsin GOP lawmakers move to oust top election official, newly elected Supreme Court justice
Experts call Wisconsin one of the most gerrymandered states in the country. Now Republican lawmakers want to lock in their redistricting map and impeach newly elected liberal state Supreme Court justice Janet Protasiewicz before she issues her first ruling.
Here & Now‘s Scott Tong talks with author and journalist Ari Berman. Berman has been covering election law, redistricting and voting rights for years. He is the author of the book “Give Us the Ballot: The Modern Struggle for Voting Rights in America” and a national voting rights correspondent for Mother Jones.
This article was originally published on WBUR.org.
“Moore and Partisan Gerrymandering”
Manoj Mate has posted this draft on SSRN. Here is the abstract:
This article examines the impact of the Supreme Court’s recent decision in Moore v. Harper on state partisan gerrymandering. Moore rejected the independent state legislature theory in affirming that state courts could review state regulations of federal elections. However, Moore also articulated a vague standard under which federal courts could review state court decisions to ensure they do not “transgress the ordinary bounds of judicial review” by assuming powers vested in state legislatures under the federal Elections Clause.
I analyze Moore’s impact on the substantive dimension of state court review in conjunction with the procedural dimension of state partisan gerrymandering disputes, by focusing on a problem that Moore does not squarely address—evasion of anti-partisan gerrymandering processes and norms by legislatures, redistricting commissions and other political actors. I argue that Rucho and Moore entrench a model of federalism that contributes to representation diminution by allowing federal courts to undermine state court checks on state partisan gerrymanders, while at the same time failing to address the problem of evasion of norms prohibiting partisan gerrymandering. As this article illustrates, political actors have defied and evaded state constitutional and statutory provisions in surprising and concerning ways. State legislatures and redistricting commissions have evaded constitutional provisions governing partisan gerrymandering norms and redistricting processes, and also defied and resisted court decisions ordering the adoption of remedial maps in their push to implement partisan gerrymanders.
This article begins by situating Moore within theories of federalism, democracy, and election law, highlighting how Moore could weaken state courts’ role in policing partisan gerrymandering, while not addressing the problem of evasion of politically entrenched norms against partisan gerrymandering . It then provides a descriptive account of state partisan gerrymandering regimes, by analyzing variation in the pathways through which states have entrenched norms against partisan gerrymandering, and variation in evasion strategies employed by political actors. It then assesses Moore’s implications for state constitutionalism by examining its potential impact on state court interpretation and state electoral governance, state court responses to evasion dynamics, and how patterns of evasion highlight key weaknesses in the institutional design of state redistricting reforms, and weaknesses in judicial remedies. The article concludes by considering broader implications for federalism, democracy, and the role of courts.
Utah Supreme Court to Hear Partisan Gerrymandering Argument Today
NYT:
On Tuesday, the Utah Supreme Court will consider whether to wade into the increasingly pitched nationwide battle over partisan gerrymanders. The justices will decide whether the state’s courts can hear a lawsuit challenging the House map, or whether partisan maps are a political issue beyond their jurisdiction.
The U.S. Supreme Court considered the same question in 2019 and decided that the maps were beyond its purview. But voting rights advocates say Utah’s Constitution offers a stronger case than the federal one for reining in political maps.
“There’s a very clear provision in the State Constitution that says all power is inherent in the people, and that they have the right to alter and reform their government,” said Mark Gaber, a lawyer with the Campaign Legal Center, a Washington-based advocacy group representing the plaintiffs.
He said other relevant provisions in the State Constitution, but absent from the federal Constitution, include guarantees of free elections and the right to vote.
“How to Police Gerrymanders? Some Judges Say the Courts Can’t.”
The NYT “teaches the controversy” about policing partisan gerrymandering.
I have to say, I agree with some of the line-drawing concerns when it comes to deciding how much is too much. Which is why I’ve argued for a while that that’s the wrong question.
The Election Is Over. The Fight Over Voting Rules and Gerrymanders Isn’t.
Voters rebuffed the most aggressive efforts to weaken democracy in the midterms. But battles over election districts and ballot restrictions that could prove crucial in 2024 have already resumed.
Mapmaker, Mapmaker, Make Me a Map
https://www.thisamericanlife.org/
November 5, 2022
In 2015, voters in Ohio approved a Republican constitutional amendment to end gerrymandering in the state—one of the first of its kind. And then Ohio Republicans drew electoral maps that violated their own constitutional amendment, and those are the ones they’re using in this year’s elections.
‘The Run-Up’: What 12 Years of Gerrymandering Has Done to Wisconsin
Oct. 20, 2022
How a 12-year project to lock in political power in Wisconsin could culminate in this year’s midterms – and provide a glimpse into where the rest of the country is headed.
“The Run-Up” is a new politics podcast from The New York Times. Leading up to the 2022 midterms, we’ll be sharing the latest episode here every Saturday. If you want to hear episodes when they first drop on Thursdays, you can search for “The Run-Up” wherever you get your podcasts. Visit nytimes.com/therunup for more.
Anti-Gerrymandering Reforms Had Mixed Results
Redistricting reforms creating independent redistricting commissions resulted in fairer maps, while less robust reforms struggled.
A Crisis is Coming: The Twin Threats to American Democracy
David Leonhardt is a senior writer at The Times who won the Pulitzer Prize for his coverage of the Great Recession.
Arizona Dems allege illegal gerrymandering in redrawing of legislative maps
Florida Supreme Court locks in DeSantis-backed redistricting map
Groups that challenged the map sharply criticized the ruling and said they will not drop their underlying lawsuit.
Here’s how redistricting changed Georgia’s 2022 maps for the House, state Senate, and U.S. House
The new maps were signed into law on December 31 and are effective for this year’s upcoming election. However, five lawsuits have been filed by various civil liberties and voting rights advocacy groups, arguing that the maps were drawn unfairly.
Analysis: Gerrymandering has left Texas voters with few options
https://www.texastribune.org/2022/04/20/texas-redistricting-elections/
Prison Gerrymandering: Who counts in Pennsylvania? That…
January 17, 2022
Maps show how gerrymandering benefitted Michigan Republicans
Ohio Supreme Court scraps 2nd GOP-drawn congressional map
The Ohio Supreme Court has rejected a second Republican-drawn map of U.S. House districts as gerrymandered.
Moore v. Harper, Explained
The debunked “independent state legislature theory” is on the Supreme Court’s docket, with potentially disastrous consequences.
https://www.brennancenter.org/our-work/research-reports/moore-v-harper-explained
[Excerpt:]In Moore v. Harper, the Supreme Court will decide whether the North Carolina Supreme Court has the power to strike down the legislature’s illegally gerrymandered congressional map for violating the North Carolina Constitution. The legislators have argued that a debunked interpretation of the U.S. Constitution — known as the “independent state legislature theory” — renders the state courts and state constitution powerless in matters relating to federal elections.
More on Moore v. Harper:
Do state legislatures alone have the power to set election rules even if those laws violate state constitutions?
or
What is the “independent state legislature doctrine” and how does it skew our electoral system?
Letters from an American, heathercoxrichardson@substack.com
September 8, 2022
Also in the news today is Moore v. Harper, a North Carolina case about whether state legislatures alone have the power to set election rules even if those laws violate state constitutions. The case is currently before the Supreme Court, and friend of the court briefs are flowing in to make arguments either for Timothy Moore, speaker of the North Carolina House of Representatives, and the rest of the petitioners, or for defendant Rebecca Harper, a North Carolina voter, and the rest of the respondents.
The case comes from North Carolina, where the state supreme court rejected a dramatically partisan gerrymander by the Republican state legislature. Republicans say that the state court cannot stop the legislature’s carving up of the state because of the “independent state legislature doctrine.”
This is a new idea that caught on in 2015, when Republicans wanted to get rid of an independent redistricting commission in Arizona. It is based on the clause in the U.S. Constitution providing that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”
Until now, states have interpreted “legislatures” to mean the state’s general lawmaking processes, which include shared power and checks and balances among the three branches of state government. Now a radical minority insists that a legislature is a legislature alone, unchecked by state courts or state constitutions that prohibit gerrymandering.
Why now?
Read MoreDemocrats are actually far more popular than Republicans in most states, and they win elections that are statewide, like those for the U.S. Senate, governor, or U.S. president. But state legislatures control the way state districts are carved up, and after 2010, when Republicans made a concerted effort to take over state houses through a plan called Operation REDMAP, they gerrymandered the states they control to the point that Democratic voters cannot win the number of seats their votes reflect.
Biden narrowly won Georgia in 2020, for example, but a new districting map has given Republicans an advantage of at least 15 points for control of the state House of Representatives. Democrats will have to win the state by double digits in order to flip the House. That party power leads to extremist legislation, for once in power, legislators in safe seats can operate without fear of being voted out and can vote for measures that cater to their extremist base rather than to the wishes of the majority.
This partisan gerrymandering skews Congress as well. According to political scientist Jacob Grumbach of the University of Washington, North Carolina, for example, was actually a leader in expanding access to voting in the 1970s. But after Republicans captured the legislature in 2010, they changed election laws so dramatically that in 2018, Republicans won 49.3% of the vote and yet captured 77% (10 of 13) of the state’s seats in Congress.
Grumbach identifies 2010 as a crucial shift for democracy in a number of states. “It’s all about [Republican] control,” he says. “When the [Republican Party] wins your state, it will reduce democracy.” The changes don’t reflect major changes in the states themselves; rather, both the big money interests of the Republican Party and the electoral base, which is motivated by white identity politics, want to keep voting limited.
Those advancing the independent state legislature theory want to be able to gerrymander their states, but they also point to another clause of the Constitution. It says: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” They advance the idea that the legislature can choose the state’s presidential electors regardless of which candidate the majority of the state’s voters choose.
This doctrine is, of course, what Trump and his allies pushed for to keep him in power in 2020: Republican state legislatures throwing out the will of the people and sending electors for Trump to Congress rather than the Biden electors the majority voted for.
Not surprisingly, those writing friend of the court briefs defending the independent state legislature doctrine are a who’s who of those who backed Trump’s effort to convince state officials to write slates of electors for Trump rather than Biden. They include America First Legal Foundation, which Democracy Docket identifies as connected to Trump advisor Stephen Miller and Trump’s chief of staff Mark Meadows; America’s Future (Trump’s national security advisor Michael Flynn); Claremont Institute’s Center for Constitutional Jurisprudence (John Eastman, author of the Eastman memo for overturning the 2020 election); Honest Elections Project (Leonard Leo); Public Interest Legal Foundation (Eastman and Trump lawyer Cleta Mitchell), Restoring Integrity and Trust in Elections (Trump’s attorney general Bill Barr), and so on.
In contrast, a conference consisting of the Supreme Court chief justices or chief judges of the courts of last resort of all 50 states, the District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, and the Virgin Islands, urged the Supreme Court not to decide that the state legislatures could operate without any oversight. Relying on the long history of state court review of the legislatures’ decisions, including those over elections, it concluded that state courts had a traditional role to play in reviewing election laws under state constitutions.
Revered conservative judge J. Michael Luttig has been trying for months to sound the alarm that the independent state legislature doctrine is a blueprint for Republicans to steal the 2024 election. In April, before the court agreed to take on the Moore v. Harper case, he wrote: “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine…and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.”
And yet in March, when the Supreme Court let the North Carolina Supreme Court’s decision against the radical map stay in place for 2022, justices Samuel Alito, Neil Gorsuch, Clarence Thomas, and Brett Kavanaugh indicated they are open to the idea that state courts have no role in overseeing the rules for federal elections.
In the one term Trump’s three justices have been on the court, they have decimated the legal landscape under which we have lived for generations, slashing power from the federal government, where Congress represents the majority, and returning it to states, where a Republican minority can impose its will. Thanks to the skewing of our electoral system, those states are now trying to take control of our federal government permanently.
—
Notes:
https://www.courthousenews.com/wp-content/uploads/2022/09/braidwood-becerra-ruling-usdc-texas.pdf
https://www.nytimes.com/2018/12/24/us/politics/texas-judge-obamacare.html
https://fivethirtyeight.com/features/how-redistricting-affects-the-battle-for-state-legislatures/
https://www.nytimes.com/2022/09/07/opinion/democracy-states-america.html
How to Say Goodbye to Gerrymandering
“Republicans and the Purple Crayon: How to Fix Partisan Gerrymandering in Wisconsin and Elsewhere”
Tom Zoellner in the LA Review of Books.
SELF-DISTRICTING: The Ultimate Antidote to Gerrymandering
I have posted this new paper on SSRN. Here’s the abstract:
It is possible to end gerrymandering by removing the power to draw district lines from government officials and giving this power to the voters themselves. In a self-districting system, as described herein, each voter chooses which constituency the voter wants to join for purposes of legislative representation. These constituencies can be geographically based as in traditional districting systems, but they also can be based on other attributes—whatever associational communities the voters themselves wish to form. If enough voters join a constituency to form more than one district based on the constitutional principle of equally populated districts, then this constituency can be subdivided into districts based on strict computer-implemented geographical criteria without any possibility for gerrymandering. This self-districting system not only complies with the U.S. Constitution; it is also consistent with the Act of Congress that requires single-member districts. Thus, there is no federal law obstacle to prevent states from adopting a self-districting system for both their congressional delegation and their own legislative chambers. In fact, self-districting is a way to avoid the problem of minority vote dilution, a task likely to become more difficulty given anticipated changes in the U.S. Supreme Court’s jurisprudence on the topic. Because of the increasingly pernicious nature of gerrymandered districts, which cause voters—and most especially minority voters—serious representational harms, the alternative of self-districting, where voters are empowered to make these representational decisions for themselves, deserves serious consideration.
The paper is being published by the Kentucky Law Journal (an earlier draft was presented at its symposium). Comments are very much welcome as it undergoes the editing process.
Here’s what H.R. 1, the House-passed voting rights bill, would do
Analysis by Peter W. Stevenson
June 2, 2021
ttps://www.washingtonpost.com/politics/2021/03/05/hr1-bill-what-is-it/
[Excerpt:]
Nonpartisan redistricting commissions:In an attempt to get rid of gerrymandering, the law would require each state to use independent commissions (not made up of lawmakers) to approve newly drawn congressional districts. The commissions would each include five Democrats, five Republicans and five independents, requiring bipartisan approval for districts to be allowed.
“Regardless of whether it’s a red state or a blue state, we are seeing significant manipulation in the legislative redrawing of districts,” said Tom Lopach, chief executive of the nonpartisan Voter Participation Center, which has advocated for the bill. “H.R. 1 presents an opportunity for everyone to get onboard with independent, unbiased and balanced redistricting that frankly is good government.”
It would also give the public a new level of scrutiny, and a chance to object to poorly drawn districts. The law would require a public comment period and give citizens a legal basis to challenge gerrymandering. (Currently, gerrymandering challenges have to be made on constitutional grounds, and if a law were passed, there would be a clearer argument to present in court against gerrymandered districts.)
Dig deeper?
One Person, One Vote: A Surprising History of Gerrymandering in America (Pantheon 2022) , Nick Seabrook
Laboratories Against Democracy (Princeton 2022), Jacob Grumbach
“For a long time, we’ve told ourselves that American democracy is guaranteed. But it’s not. We have to defend it. Protect it. Stand up for it. Each and every one of us.”