By Kevin Frazzini
Nashville—Tuesday’s “Redistricting and the Law” session at NCSL’s Legislative Summit fell on a date familiar to many in the room. It was Aug. 6, 1965, that Lyndon B. Johnson signed the Voting Rights Act, which outlawed racial discrimination in voting.
Moderator Gina Wright, with the Georgia General Assembly’s Reapportionment Office, led redistricting attorneys Kristen Clarke and Jason Torchinsky through a brisk, detailed discussion of the 2020 census and the attempted addition of a citizenship question; partisan gerrymandering; and legislative standing and privilege.
Clarke is with the Lawyers’ Committee for Civil Rights Under Law, a nonprofit organization founded in 1963 at the request of President John F. Kennedy to enlist the private American bar in combatting racial discrimination. Torchinsky is a partner with the Virginia-based election law firm of Holtzman Vogel Josefiak Torchinsky.
The Trump administration abandoned its effort to include a question about citizenship on 2020 census forms after the Supreme Court decided in June that the justification for adding it—that it was needed to better enforce the VRA—appeared to have been “contrived.”
The court did not reject the idea of including such a question, Torchinsky emphasized. It merely objected to the administration’s reasoning for including it, keeping open the debate over what information—total population or citizens only—should be used for redistricting.
“The real question is, what is the right basis on which to draw districts?” he said.
Clarke emphasized that total population remains the base standard in most communities and reminded attendees of the census’ importance in distributing some $800 billion annually in federal funds to the states.
“It’s important for localities, municipalities and states to get their people counted,” she said.
Regarding partisan gerrymandering, the panelists reminded us that this summer’s landmark Supreme Court case Rucho v. Common Cause made clear where the justices stand. Claims of such gerrymandering are not justiciable because they present a political question—as opposed to a legal one—beyond the reach of the federal courts.
Writing for the majority, Chief Justice John Roberts said the court must not “inject [itself] into the most heated partisan issues” without evidence of constitutional authority or a standard to “reliably differentiate unconstitutional from ‘constitutional political gerrymandering.’”
The framers, he said, chose to empower state legislatures “expressly checked and balanced by the Federal Congress,” to run elections, which includes drawing districts.
The ruling shifts the venue of these matters to the states, half or which, Torchinsky said, have a “free and equal” clause in their constitutions. Legislative responses will vary as will the actions of state courts to the inevitable challenges that arise.
Critics are less sanguine, with some saying the ruling will allow politicians drawing election maps to discriminate by political party and even potentially mask racial “packing” and “cracking” as mere partisanship.
Justice Elena Kagan, in her dissent, said that “[i]f left unchecked, gerrymanders like the ones here may irreparably damage our system of government.”
As Clarke put it, states can’t be allowed to justify one illegitimate practice (racial gerrymandering) by citing another (partisan gerrymandering).
“Two wrongs don’t make a right,” she said.
With the high court having addressed both the citizen question and partisan gerrymandering yet left much of the hard work to the states, the debate on both these issues is certain to continue.
Kevin Frazzini is the senior editor of State Legislatures magazine.