By Kevin Frazzini
“Redistricting is a game of margins,” attorney Kate McKnight told lawmakers at the Legislative Summit in Boston. Legislatures always start with existing district maps and work from there, she said. No one starts completely from scratch.
McKnight was joined by fellow attorney Abha Khanna for a discussion of the U.S. Supreme Court’s rulings in recent redistricting cases. Moderating the session, “Redistricting Goes to Court,” was Jessica Karls-Ruplinger, with the Wisconsin Legislative Council.
As state legislators prepare to adjust the margins of districts in the next redistricting cycle based on the 2020 census, they’ll be looking to the court for guidance. It can be difficult to predict how a decision in one case might apply to others, but the attorneys told the group the court has asserted some general principles in recent decisions.
Race cannot be used as a proxy to achieve other goals, including partisan gerrymandering: In Cooper v. Harris, the court agreed with the plaintiffs’ argument that the North Carolina legislature violated the Equal Protection Clause when it increased the percentage of black voters in two of the state’s congressional districts. By “packing” black voters into the two districts, Republicans “whitened” the adjacent districts, giving themselves a partisan advantage.
The intent of the legislature is crucial: The court held in Bethune-Hill v. Virginia State Board of Elections that if evidence is shown that the legislature intended to draw districts based on racial preferences, then its maps can be rejected. Further, the court reasserted that circumstantial evidence can be relevant, if it goes toward proving intent.
Using total population is an acceptable means of creating districts: In Evenwel v. Abbott, the court rejected the plaintiffs’ argument that the districts created by the Texas Legislature in 2010 violated the one-person, one-vote principle of the Equal Protection Clause. The plaintiffs argued that, although the districts were fairly equal in terms of total population, they varied greatly in relation to total voter population, diluting their vote. Unresolved is whether using total voting population is acceptable.
Court watchers have their eyes on Gill v. Whitford, with arguments to begin in October. The plaintiffs argue that the Wisconsin Legislature’s redrawing of district maps was so partisan that it violated the First and 14th amendments to the Constitution. The plaintiffs’ case rests on a newly developed model for measuring partisanship. The model counts “wasted” votes—that is, the votes cast for a winning candidate above the number needed to win. If one party in an election has more wasted votes than the other, unfair partisan advantage is likely. The case has drawn attention because, if affirmed, it would be the first time the Supreme Court has adopted a legal standard for measuring the partisanship of redistricting plans.
For more on redistricting and important Supreme Court cases, visit NCSL’s Elections and Campaigns research page.
Kevin Frazzini is the assistant editor of State Legislatures magazine.