The Judicial History of Redistricting

How the Supreme Court has Affected the Redistricting Process in the United States

The headlines of judicial intervention in redistricting are not rare nowadays. From NPR, "Frustrated Supreme Court Looks For A Solution To Partisan Gerrymandering". "Texas gerrymandering case before Supreme Court could change state's political map" reads the Houston Chronicle. "The Supreme Court is hearing a gerrymandering case that could change the political landscape for years to come" touts Business Insider. But this is a relatively recent phenomenon. Before the 1960s, redistricting was considered a "political question," and the expectation was that the courts would stay out of the process, leaving it to the legislatures.

That all changed during the era of the Supreme Court termed "The Warren Court," after its Chief Justice, Earl Warren. Known for its liberal activist approach, the Warren Court was responsible for some of the fundamental aspects of the United States that we think of today: Miranda rights, right to appointed counsel, school desegregation - but the Chief Justice's proudest achievement was opening the gates to the "political thicket," allowing courts the opportunity to hear cases about malapportionment and unconstitutional redistricting. While the Supreme Court has extended its reach into both state legislative districts and congressional districts, and although the two are intertwined significantly, this article will address primarily congressional redistricting cases.

Technically, the first case to deal with improper districting was a case from Alabama called Gomillion v. Lightfoot (1960). In the city of Tuskegee, the Black population was the majority of the citizens, and with increased voter registration, the minority white population was beginning to feel threatened. As a result, the Alabama state government redrew the lines of the city into a 28 sided figure, explicitly to exclude the Black neighborhoods and prevent their participation in the municipal government.

In their opinion, the Justices ruled that the redistricting effort was a direct violation of the 15th Amendment, and struck down the law as unconstitutional. This represented the first time that the Court had intervened in drawing political boundaries - and was in fact cited two years later in the landmark case of Baker v. Carr (1962).

Carr represented the real watershed moment for judicial redistricting, and represented the beginning of a judicial revolution of the 1960s. In the opinion, the Court held that questions of malapportionment and improper redistricting were justiciable, as failure to create equally populated districts represented a ""debasement of their votes," and were thereby denied the equal protection of the laws guaranteed them by the Fourteenth Amendment." This case would result in three subsequent cases: Gray v. Sanders (1963), Wesberry v. Sanders (1964), and Reynolds v. Sims (1964).

In Gray, the Court used for the first time the now famous phrase, "one person, one vote", establishing that the 14th Amendment's Equal Protection Clause required voting districts to be equal in population. This doctrine seeped into congressional and state legislative districts with the two subsequent cases, Wesberry and Reynolds, respectively, both of which required equal population "as nearly as practicable." The latter case maintained the 14th Amendment conception for equally populated districts, but Wesberry took a slightly different route, casting itself under Article I, Section II protection. The logic here is because the House of Representatives is a proportional body, with each state apportioned representatives "according to their respective numbers," each state is afforded a form of one person, one vote - and that right should extend within the state, not just to the state.

Following the decision in Wesberry, dozens of lawsuits around the Union were filled on the basis of unproportional districts. Between 1965 and 1969, 30 states saw their congressional maps redrawn, most of them the result of lawsuits filed in district court. Enough lawsuits were filed, in fact, that eventually two made their way back to the Supreme Court for clarification on how stringent "one person, one vote" held the equal population requirement.

In the companion cases of Kirkpatrick v. Preisler (1969) and Wells v. Rockefeller (1969), the Supreme Court held that equally populated districts meant exactly that - equally populated. If there were any variation between the number of people in the districts, it needed to be demonstrated as "unavoidable despite a good faith effort." Failure to meet this standard would result in ruling the congressional district scheme as unconstitutional, as happened in many states. This high standard for congressional districts was unheard of 10 years prior - but now is considered a given in the redistricting process.

Simultaneous to the 1960s judicial activism of redistricting, there was a legislative initiative that would leave a lasting mark on the political landscape as strong as Carr - the passage of the Voting Rights Act of 1965 (VRA). Signed into law a year after the Civil Rights Act of 1964, the VRA had three main sections. Section 2 required that no state or "political subdivision" like a city could take any action or impose any rule that would abridge a citizen's right to vote based on race. Section 5 required some states and political subdivisions to receive preclearance from the Department of Justice or the District Court for the District of Columbia prior to implementing any new voting regulations (including new districts). Section 4(a) lays out which states and political subdivisions are required to receive preclearance based on past discriminatory behavior.

When it first went into effect, the state of South Carolina sued the Attorney General, alleging that the preclearance requirement was a violation of state sovereignty. In South Carolina v. Katzenbach (1966), the Court disagreed. Writing for an almost unanimous court, Chief Justice Warren held that the VRA was a valid exercise of Congress's ability to pass laws to enforce the 15th Amendment. With the Supreme Court's rulings expanding both the courts' ability to hear disputes of redistricting and the federal government's authority over redistricting, the 1960s were a high water mark of judicial activism against unconstitutional and discriminatory redistricting practices.

Following the 1960s, more and more conservative Justices were appointed to the Supreme Court, and many of the liberal tendencies started to chip away. The first such case was in 1980, Mobile v. Bolden. Here, voters in Mobile, Alabama, alleged that the at-large district scheme violated the 15th Amendment and Section 2 of the VRA. The Court, however, disagreed, as there was no clear discriminatory purpose to the at-large scheme, only an effect, and an effect alone without intent was insufficient to create a violation.

Responding two years later, Congress renewed the portions of the VRA set to expire, including the Section 4(a) identifiers for which political bodies needed to obtain preclearance. At the same time, Congress updated the Section 2 standard from prohibiting "discriminatory intent" to "discriminatory result," effectively creating a path for the future to allow cases like Mobile to be found unconstitutional.

Starting in the late 80s, an interesting turn takes place around the involvement of the judiciary in redistricting. Prior to 1986, the only gerrymandering the Court had concerned itself with were racially negative ones, where discriminatory practices were enacted to disenfranchise minority voters. In Davis v. Bandemer (1986), however, the Court opened the door for judicial action on a new version - partisan gerrymandering. This is often the type of gerrymandering we hear about now, districts drawn to favor one party over another, and this was, in fact, the type of the very first gerrymander in Massachusetts. In Bandamerer, the Court held that claims of partisan gerrymandering were justiciable under the Equal Protection Clause. Unfortunately, the Court could not decide on a standard for providing relief for these cases, leaving the future in a strange limbo.

The next time the Court heard arguments in a partisan gerrymandering case was in 2004, in Vieth v. Jubelirer. Writing for the 4 member plurality, Justice Scalia voted to reverse Bandemer, on the basis that claims of partisan gerrymandering are nonjusticiable. Justice Kennedy, as is often his style, provided the swing vote in this case, and his vote prevented the overturning of Bandemer. Writing in a separate concurrence, he argued that partisan gerrymandering is unconstitutional, but the lack of a clear standard in Vieth prevented him from ruling with the petitioners. It became clear to most observers that Justice Kennedy was willing to vote in a case equivalent to Wesberry, he simply needed the standard to apply to partisan gerrymandering.

In the time between these two cases, the Court issued a new doctrine in the 1990s around racially conscious redistricting, now called the Shaw doctrine. In Shaw v. Reno (1993), the Court held that when majority-minority districts are drawn, that is, districts drawn to ensure a majority of the district's population is a minority group, the district court must apply strict scrutiny when evaluating that district. To meet the standards of strict scrutiny, the state must demonstrate a compelling government interest in creating a race-based classification system, and show that the system is narrowly tailored to meet its goal (we also apply strict scrutiny in cases like Loving v. Virginia (1967), legalizing interracial marriage). However, the decision also stipulated that states must consider race when drawing districts, lest they violate Section 2 of the VRA. The resulting middle ground left a murky legal swamp for redistricting bodies to swim through, as they must consider race enough to comply with the VRA, but not consider it so much as to fail a test of strict scrutiny.

The protections of the VRA were further weakened in Shelby County v. Holder (2013), when the Supreme Court struck down the Section 4(a) requirements for which states need to obtain preclearance. Writing for the majority, Chief Justice Roberts held that, because the regulations for which states need preclearance had not been updated since the VRA's original passage in 1965, and instead Congress had continually extended the original requirements every time they were set to expire, they were no longer constitutional and needed to be redone. In her dissent, Justice Ginsburg compared this to "throwing away your umbrella in a rainstorm because you are not getting wet."

Since this decision, Congress has not established new requirements for which states will need to receive preclearance from the Justice Department, and likely will not by the 2020 round of redistricting, making this is likely first time since the enactment of the VRA that no preclearance will occur for redistricting after a census. The decision did, however, leave in place the Section 5 preclearance requirement - it merely stripped away the formula for determining which jurisdictions would be subject to it.

Although there is an argument that Congress should behave the way it did in Bandamerer and act to update the VRA, there is an equal valid response that, likely, the same states and cities will fall under the new coverage formula as the old one, creating no need to update it. The argument that because Congress is notoriously ineffective at acting the Court should not have placed the duty on them however, fails to hold any water. The Supreme Court should not abdicate its duty in ruling on the merits of a case because of the abdication of another branch of government; inaction should not beget inaction. While the merits of the case may be in dispute, the Court ruling on those merits should not be.

At the time of this writing, there are two interesting cases pending before the Supreme Court, furthering its journey down the path of partisan gerrymanders. The cases are Gill v. Whitford and Benisek v. Lamone, and while they both address questions of partisan gerrymandering, they do so in slightly different ways. In Whitford, the challenge is against the Wisconsin state legislative districts, and the question before the Court is whether the Efficiency Gap (EG) can serve as the standard that Justice Kennedy was looking for in Vieth. Although this case is about legislative districts rather than congressional districts, it is easy for the Court to apply the rule from one to the other, as happened with Reynolds v. Sims and Wesberry v. Sanders. The EG would have enormous implications if implemented as a standard, so this case will be one to watch.

In Benisek, the Court is hearing arguments about a congressional district, although the EG has no bearing on the case. Rather, they are examining whether a district drawn specifically to elect a member of a certain party in multiple elections in a row can be found unconstitutional, as a first amendment violation of free expression by punishing voters of the opposition party. The implications for this case are similarly grand, and how this impacts the world of redistricting will be important to watch in order to understand how far we've come in judicially managed redistricting, and where we will go from here.