Cases Relating to Legislatures vs. Commissions
Arizona State Legislature v. Arizona Independent Redistricting Commission,No. 13-1314, 576 U.S. , 135 S. Ct. 2652 (2015)
Significance: The creation of a redistricting commission for congressional districts via ballot initiative does not violate the Elections Clause of the U.S. Constitution.
Summary: In 2000, Arizona voters created the Arizona Independent Redistricting Commission via ballot initiative to redraw state legislative districts and congressional districts. In 2015, the Arizona Legislature challenged the right of the commission to draft congressional lines, arguing that the Elections Clause of the U.S. Constitution only grants two institutions the power to regulate the time, place, or manner of electing congressional representatives: the legislatures in each of the states, or Congress. The Supreme Court held that the reference to the “Legislature” in the Elections Clause encompassed citizen initiatives in states like Arizona, where the state constitution explicitly includes the people’s right to bypass the legislature and make laws directly through such initiatives.
Cases Relating to Race
Thornburg v. Gingles 478 U.S. 30 (1986)
Significance: This case created the standard for determining whether § 2 of the Voting Rights Act requires that a majority-minority district be drawn.
Summary: Following the 1982 amendments to the Voting Rights Act (VRA), it was unclear precisely when the VRA would require a majority-minority district be drawn to prevent vote dilution. Here, the Supreme Court held that for a plaintiff to prevail on a § 2 claim, he or she must show:
- The racial or language minority group “is sufficiently numerous and compact to form a majority in a single-member district.”
- The minority group is “politically cohesive,” meaning its members tend to vote similarly.
- The “majority votes sufficiently as a bloc to enable it…usually to defeat the minority’s preferred candidate.”
A later case, Bartlett v. Strickland, 556 U.S. 1 (2009), added the requirement that a minority group be a numerical majority of the voting-age population in order for § 2 of the Voting Rights Act to apply.
Significance:Legislative and congressional districts will be struck down by courts for violating the Equal Protection Clause if they cannot be explained on grounds other than race. While not dispositive, “bizarrely shaped” districts are strongly indicative of racial intent.
Summary:Plaintiffs brought a novel legal claim, arguing that a North Carolina congressional district was so bizarrely shaped that it amounted to a “racial gerrymander,” which they claimed violated the Equal Protection Clause. The Court rejected the state’s defense that the district was justified as a so-called “majority-minority district,” holding that the Voting Rights Act required no such district to be drawn where one did not previously exist. Claiming the North Carolina district resembled “the most egregious racial gerrymanders of the past,” the court struck down the district on the basis that it reflected the incorrect belief that members of minority groups in different geographic areas (e.g. Durham vs. Charlotte) had the same interests, and did not have independent local needs that would be better served by having a more locally-oriented representative.
Miller v. Johnson, 515 U.S. 900 (1995)
Significance: A district becomes an unconstitutional racial gerrymander if race was the “predominant” factor in the drawing of its lines.
Summary: Following Shaw, it remained unclear what the standard of review was under the new racial gerrymandering doctrine. In Miller, the U.S. Department of Justice in 1991 refused preclearance to Georgia’s initial congressional redistricting plan under § 5 of the Voting Rights Act, claiming the state needed to create an additional majority-minority district. Plaintiffs challenged the newly drawn districts as racial gerrymanders. The Supreme Court held for the plaintiffs, and established the rule for racial gerrymandering claims: if a district is drawn predominantly on the basis of race, it violates the Equal Protection Clause.
Significance: If you want to argue that partisan politics, not race, was your dominant motive in drawing district lines, beware of using race as a proxy for political affiliation. To survive strict scrutiny under the Equal Protection Clause and avoid being struck down as a racial gerrymander, a district must be reasonably compact.
Summary: Under the 1990 reapportionment of seats in Congress, Texas was entitled to three additional congressional districts. The Texas Legislature decided to draw one new Hispanic-majority district in South Texas, one new African-American-majority district in Dallas County, and one new Hispanic-majority district in the Houston area. In addition, the legislature reconfigured a district in the Houston area to increase its percentage of African Americans. The legislature used sophisticated software that allowed it to redistrict with racial data at the census block level. Plaintiffs challenged 24 of the state’s 30 congressional districts as racial gerrymanders. The Supreme Court struck down three districts, holding that race was the predominant factor in drawing the lines. In these districts, the court concluded that districts drawn to satisfy Section 2 of the VRA must not subordinate traditional redistricting principles more than reasonably necessary. The districts in question were in the courts words, “bizarrely shaped and far from compact.” These characteristics were predominately attributable to racially motivated gerrymandering.
Shelby County v. Holder, No. 12-96, 570 U.S. 529 (2013)
Significance: Section 5 of the Voting Rights Act no longer applies to any jurisdictions in the United States. As a result, redistricting plans and other changes in voting laws, such as voter identification requirements, need not be approved before they take effect.
Summary: Section 5 of the Voting Rights Act of 1965 (VRA) (codified as amended at 52 U.S.C. § 10304), prohibits certain states and political subdivisions from changing any voting law or practice without first obtaining from either the U.S. Attorney General or the U.S. District Court for the District of Columbia a determination that the change neither had the purpose nor would have the effect of denying or abridging the right to vote on account of race or color, or membership in a language minority group. (A “language minority group” is defined as “American Indian, Asian American, Alaskan Natives or of Spanish heritage.” 52 U.S.C. § 10310(c)(3) (2018)). This process is called “preclearance.” A redistricting plan had to be precleared before it could take effect. Section 5 applies only to certain jurisdictions in the South and elsewhere that meet the requirements of § 4(b) (codified as amended at 52 U.S. C. § 10303(b)): the jurisdiction had imposed a literacy test or similar requirement making it difficult to vote and less than 50 percent of its voting-age population had been registered to vote or had voted in the presidential election of 1964, 1968, or 1972 (depending on when the jurisdiction first became subject to § 5).
In 2011, Shelby County, Alabama, challenged the constitutionality of both the formula that determined whether § 5 applied to a jurisdiction—§ 4(b)—and § 5 itself. It alleged that the coverage formula in § 4(b) had not changed since the VRA was enacted in 1965, that conditions in Shelby County had changed drastically since then, and that standards based on old data should no longer apply.
The Supreme Court held that § 4(b) was unconstitutional. It balanced the exceptional conditions surrounding implementation of the Voting Rights Act with the basic principles of the 10th Amendment. The 10th Amendment reserves to the states all powers not specifically granted to the federal government. This includes the power to regulate elections. In addition, the principle of equal sovereignty among the states frowns upon their disparate treatment. It also found that the exceptional conditions that gave rise to the Voting Rights Act no longer existed.
Post-Shelby, it is still possible that states or jurisdictions could be “bailed in” under § 3 of the VRA for preclearance, if a pattern of current discrimination is found.
Alabama Legislative Black Caucus v. Alabama, No. 13-895, 575 U.S. ___, 135 S. Ct. 1257 (2015)
Significance: Racial gerrymandering claims proceed district-by-district, not against an entire plan. Further, equal population is not a “factor to be considered” when redistricting, but rather a constitutional mandate. Section 5 of the Voting Rights Act does not require a covered jurisdiction to maintain a specific numerical minority percentage when redistricting.
Summary: The district court upheld an Alabama Legislative redistricting plan that tried to make populations nearly equal in the districts, and attempted to maintain the same black population percentages in these districts as those in the plan from the previous decade. The Supreme Court reversed and remanded the case to the district court for several reasons.
These reasons are:
- The district court’s analysis of the racial gerrymandering claim erroneously referred to the state “as a whole,” rather than district-by-district. Case law since Shaw v. Reno (see above) has made clear that racial gerrymandering claims are judged on a district-by-district basis.
- The state could not use its equal-population goal as a factor to be weighed against other factors when redistricting. Rather, equal population is a constitutional mandate that undergirds the entire redistricting process and can neither give way to other mandatory factors nor justify deviating from them.
- Respecting the state’s compelling interest to consider race in drawing districts so as to comply with Section 5 of the Voting Rights Act, the District Court, while understanding that a plan had to be narrowly tailored to meet the compelling interest test, asked the wrong question when it concluded that it must answer, “How can we maintain present minority percentages in majority-minority districts?” The proper inquiry would have focused on the extent to which present percentages of minority voters had to be maintained to preserve a minority’s ability to elect a candidate of its choice? Asking the wrong question, yielded the wrong answer.
Significance: Partisanship cannot be used to justify a racial gerrymander. Further, § 2 of the Voting Rights Act
requires that a racial minority have the opportunity to elect a “candidate of choice,” not that a particular percentage of minority voters be present in a district. This case represents a synthesis of earlier cases on the requirements of Section 2 as set out in Gingles, and the now well-developed case law on racial gerrymandering that began with Shaw v. Reno.
Summary: Voters in two North Carolina congressional districts challenged their districts as unconstitutional racial gerrymanders. The state argued the case on two primary grounds. First, the state argued the increase in the percentage of black voters in the district was required to avoid a potential vote dilution challenge under Section 2 of the Voting Rights Act. Second, the state argued that any gerrymandering that had transpired was strictly partisan. The court rejected these arguments, holding that: (1) § 2 of the Voting Rights Act does not require a numerical majority of voters in a particular district; rather, it only requires that a compact and politically cohesive minority have the opportunity to elect its candidate of choice; and (2) Even if the underlying intent of the legislature in drawing maps is for partisan advantage and not with racial intent, the predominant use of race as a proxy for partisanship nonetheless constitutes racial gerrymandering.