Redistricting

  • February 9, 2018
    Guest Post

    by Laila Robbins, Research & Program Associate, Brennan Center For Justice

    State courts—where 95% of all cases in the U.S. are filed—are powerful. Just last week, the Pennsylvania Supreme Court found that the state’s gerrymandered congressional maps violated the state constitution and ordered the legislature to re-draw the maps before the upcoming midterm elections. State supreme courts are typically the final arbiters on state law questions, from whether Kansas has adequately funded its education system to whether a tort reform law in Arkansas violates the state constitution. Many of these rulings, like the Pennsylvania redistricting decision, have national implications.

  • November 27, 2017
    Guest Post

    by Leah Aden, LDF Senior Counsel

    *This piece was originally posted on Medium.

    In 2020, the federal government will undertake the monumental and important task of attempting to count each person residing within our country’s borders. An exercise that has taken place every 10 years, since 1790, and is mandated by the U.S. Constitution, it cannot be overstated how important the Census is to the well-functioning, representative democracy that our country strives to be. The Black community that the NAACP Legal Defense and Educational Fund, Inc. (LDF), where I work, serves, has a lot to lose if they, like other communities of color, are not counted fairly and accurately in the 2020 Census.

  • September 13, 2017
    Guest Post

    by Matt Lynch, Special Counsel, Foley & Lardner LLP and Steering Committee member, ACS Madison Lawyer Chapter

    Few are willing to defend the practice of partisan gerrymandering on its merits.  Republican lawmakers, Democratic lawmakers, historians, political scientists, law professors, partisan interest groups, and nonpartisan interest groups alike all agree that gerrymandering—drawing legislative districts for the purpose of political advantage—is a pox on representative government. But stopping the practice requires legislators to voluntarily harm their own chances for re-election.  And so gerrymandering continues, now aided by more precise voter data than we have ever had, and the technology to use it on a broad, state-wide scale.

    Gill v. Whitford, a case arising from Wisconsin’s heavily gerrymandered districts, presents the United States Supreme Court with a clean opportunity to rein in that despised practice.  The only question is whether the justices—namely swing Justice Anthony Kennedy—believe it is a problem that warrants a judicial solution.

  • September 13, 2017
    Guest Post

    by Daniel TokajiCharles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Moritz College of Law

    *This piece originally ran on SCOTUSblog as a part of their Summer Symposium on Gill v. Whitford

    A constitutional standard for partisan gerrymandering is the holy grail of election law. For decades, scholars and jurists have struggled to find a manageable standard for claims of excessive partisanship in drawing district lines. Most of these efforts have focused on the equal protection clause. But as Justice Anthony Kennedy suggested in Vieth v. Jubelirer, the First Amendment provides a firmer doctrinal basis for challenging partisan gerrymandering. An established line of precedent understands voting as a form of expressive association protected by the First Amendment. These cases offer a nuanced standard that would avoid the undesirable result of rendering any consideration of partisan consequences unconstitutional.

  • March 3, 2017
    Guest Post

    *This piece originally appeared on the Campaign Legal Center’s blog.

    by Noah B. Lindell, Legal Fellow, Campaign Legal Center

    This week, the U.S. Supreme Court issued its decision in Bethune-Hill v. Virginia State Board of Elections. The Supreme Court told the lower court to go back and take a second look at 11 state house districts to determine whether they constitute racial gerrymanders. But it is the reason why the Court required the do-over that is so significant.

    Bethune-Hill arrived at the Supreme Court after a three-judge federal district court held that the Virginia legislature’s plain use of racial quotas to unnecessarily pack black voters into state legislative districts did not violate the 14th Amendment’s ban on racial gerrymandering.

    In drawing the districts, the Virginia Legislature required all 11 districts to meet a quota of at least 55 percent black voting-age population (BVAP). These sorts of targets tend to be used to pack minority voters into smaller numbers of districts, reducing the influence of the minority population statewide. According to the district court, this race-based intent did not matter, because the districts could, after the fact, be explained by other factors.  But the three-judge court’s ruling was at odds with the Supreme Court’s 2015 decision in Alabama Legislative Black Caucus v Alabama, which held that a legislature’s unsupported insistence on rigid and mechanical racial targets for state legislative districts provides strong evidence of an unconstitutional racial gerrymander.

    Virginia had argued that voters must show an “actual conflict” between race and the more traditional criteria that states use for redistricting, like preserving municipal boundaries and keeping districts compact. As long as a state shows that it could have made the same districts without using race, a racial gerrymandering claim could not go forward. In other words, legislatures could act with a racially discriminatory intent as long as the districts were drawn neatly. Moreover, as the Supreme Court recognized, the traditional criteria relied upon are so malleable that this test would have insulated nearly every racial gerrymander so long as the legislature could invent an explanation for its district lines after the fact.