When President Obama called for an end to gerrymandering in his final state of the union, it was a rare moment of primetime coverage for a typically arcane subject: redistricting. But this topic is getting increased attention, especially after 97% of incumbents who chose to run were returned to office this year despite the electorate’s strong “anti-establishment” sentiment. Political writers have called the last round of post-census redistricting “the most audacious political heist of modern times,” celebrities (such as Zach Galifianakis) have taken up the cause, and activists in several states have legislative reform efforts underway.
The debate is also unfolding in the courts, with partisan and non-partisan groups engaging in a multi-front legal battle over racial and political gerrymandering. Although the war over congressional and state redistricting maps is likely to continue for many years to come (and will heat up in the aftermath of the 2020 census), the year ahead holds significant developments for legislators designing maps, litigators challenging maps, and the voters and candidates who must live with the consequences of the evolving law in this space. At stake is the constitutionality of the Voting Rights Act as applied to redistricting, the reconciliation of the Fourteenth and Fifteenth Amendments, the practical ability of legislators to comply with the law, the balance-of-powers problems raised by the “judicialization” of the redistricting process, the collateral consequences of racial gerrymandering decisions on other racial justice initiatives, and the potential for political gerrymandering claims to upturn partisan maps nationwide—all issues that take on fresh urgency with the future direction of the Supreme Court becoming clear.
RACIAL GERRYMANDERING CASES
On the immediate horizon are two racial gerrymandering cases that the Supreme Court will hear on December 5, 2016: Bethune-Hill v. Virginia State Board of Elections, regarding twelve state legislative districts in Virginia, and McCrory v. Harris, regarding two congressional districts in North Carolina. (Disclosure: I served as a law clerk to the author of the Bethune-Hill decision, Judge Robert E. Payne. I do not represent any parties in this case and the views below are my own.) Election law experts, such as Professor Rick Hasen, have argued that these cases involve a “similar dynamic” as Alabama Legislative Black Caucus v. Alabama, with the question now being whether Section 2 requires districters to employ a mechanical racial demographic target to comply with the Voting Rights Act rather than whether Section 5 requires districters to employ such a target. But this not only overlooks the nature of the split between the district courts in Bethune and McCrory, it also overlooks the ways in which those two courts agreed. In fact, contrary to popular belief, both decisions can—and should—be affirmed.
To prevail on a racial gerrymandering (or “racial sorting”) claim, the Supreme Court has held that a plaintiff must show “that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district. To make this showing, a plaintiff must prove that the legislature subordinated traditional, race-neutral districting principles . . . to racial considerations.” If a court finds that race “predominated,” then the court applies strict scrutiny, and the district must be narrowly tailored to a compelling interest. In the context of redistricting law, this means that a court must find that the districters’ use of race was “reasonably necessary” to comply with the Voting Rights Act.
Bethune and McCrory raise two questions about the Supreme Court’s interpretation of “predominance” and two questions about how to apply strict scrutiny in the redistricting context.
The Predominance Questions
With respect to predominance, the questions at issue are: 1) whether the legislature’s use of a racial demographic target necessarily triggers a finding of predominance, such that strict scrutiny is automatically applied; and 2) whether the legislature’s use of race must be in “actual conflict” with traditional, neutral districting criteria in order to find predominance. The answers to these questions will shed light on how legislators can navigate the “Goldilocks problem” (the dilemma that disticters must consider race in redistricting to comply with federal law—the Voting Rights Act—but must not consider race so much that they violate constitutional law—the Equal Protection Clause) and on how the Supreme Court intends on reconciling the Fourteenth Amendment’s Equal Protection Clause with the Fifteenth Amendment’s Enforcement Clause (which provides Congress the explicit power to enact “appropriate legislation” to guarantee that the right to vote is not “denied or abridged by the [government] on account of race”).
Racial Targets as Racial Predominance
The primary split between the Bethune and McCrory decisions centers on the first question. The question is not whether mechanical racial targets can be used under Section 2 as opposed to Section 5; rather, the question is what role racial targets play in the predominance analysis as opposed to the narrow-tailoring analysis. The Bethune court emphatically rejected the idea that a racial target necessarily triggers predominance, noting that the Alabama decision treated racial targets as “evidence” of racial predominance, not dispositive proof. Instead, as the Bethune court points out, the Alabama Court focused on whether Alabama’s “policy of prioritizing mechanical racial targets above all other districting criteria” had a “direct and significant impact on the drawing of . . . [the district’s] boundaries.” The McCrory court, relying in part upon the dissenting opinion in Bethune, took the opposite view, holding that “[a] congressional district necessarily is crafted because of race when a racial quota is the single filter through which all line-drawing decisions are made, and traditional redistricting principles are considered, if at all, solely insofar as they did not interfere with this quota.” In other words, the Bethune court held that the target only triggers predominance if its impact is discernable in the boundaries of the enacted plan, whereas the McCrory court held that the target necessarily triggers predominance because any hypothetical plan inconsistent with that target would have been rejected, thereby prioritizing race over other districting principles.
Why does this matter? Because targets can be used in ways that are justified—such as tailored racial targets found to be functionally necessary in order to retain minority ability to elect—and ways that are unjustified—such as mechanical racial targets that are not reasonably necessary to protect minority ability to elect (and may, in fact, be used to pack minority voters into fewer districts in order to diminish their ability to elect in neighboring districts). The question of whether a target is justified, however, is a narrow-tailoring question, not a predominance question. By arguing that targets in general are presumptively unconstitutional, the plaintiffs in Bethune and McCrory have unwittingly drawn the legality of the Voting Rights Act into question as applied to redistricting.
The Government recognizes the danger of this litigating position, siding against the plaintiffs on this question in its brief:
“[T]he district court correctly recognized that the existence of a racial target does not, by itself, establish predominance. A racial target may end up playing little or no role in how district lines are actually constructed. And even when a racial target is one motivating factor in the drawing of some lines, race may still not predominate over other non-racial factors in the design of the district as a whole. Appellants therefore err insofar as they suggest that the predominance standard is satisfied merely by evidence that a racial target was used in drawing the districts, without a showing that the target predominantly drove those lines.”
This position is critical to protecting the Voting Rights Act because the ability-to-elect standard common to Sections 2 and 5 necessarily involves tailored and functional target setting. As the Government points out, “an effort to create a majority-minority district by definition involves a racial goal exceeding 50%.” Similarly, the NAACP, which attacks the 55% target in its brief, nonetheless notes that “construing the racial predominance test to be over-inclusive could have a negative impact on minority opportunity districts.” “[I]n the case of crossover or influence districts, unequivocal data on local voting patterns may show that drawing or maintaining a district with black voting age population [BVAP] of less than 50%–and in many cases below 40%–is sufficient to enable black voters to elect their candidates of choice.”
Nor, as the Lawyers’ Committee for Civil Rights points out, is the use of targets a “reason to conclude that those goals are incompatible with traditional districting principles . . . Reaching a 40 percent minority target might require extensive geographic contrivances in one region, whereas in another region a 60 percent minority district could be the natural result of following traditional districting principles to the letter.” As such, “it would short-circuit Miller’s carefully constructed analytical framework to treat a population target as a racial classification per se.”
This issue has vexed courts and resulted in some surprising outcomes. Just last term the Supreme Court heard Wittman v. Personhuballah. (Disclosure: Judge Robert E. Payne dissented in this case. I did not represent any parties in this case and the views below are my own.) In Personhuballah, the district court held that a Virginia congressional district was racially gerrymandered based in large part on the legislature’s use of a 55% BVAP target. Plaintiffs’ counsel in that case—the same as plaintiffs’ counsel in Bethune and McCrory—argued that a BVAP target is “not related to the ability to elect” and so any plan using such a target should “be subject to heightened scrutiny.”
This is a difficult square to circle: BVAP targets play a central role in the ability-to-elect analysis. When the district court in Personhuballah implemented its own remedial plan, it used a BVAP floor “‘somewhat above’ 40%” based on evidence that a BVAP below that floor would not protect minority voters’ ability to elect. If this figure means anything, it means that a district in that region with a BVAP below 40% would have violated the VRA. Although the district court in Personhuballah relied heavily upon the use of a target to justify invoking strict scrutiny for the legislature’s map, when the it came time to evaluate its own map the court held that “racial considerations did not predominate in the drawing of [its remedial plan]” and so “the [p]lan [wa]s not subject to strict scrutiny.”
If the use of a BVAP floor is a “racial filter” that automatically triggers strict scrutiny, this holding is impossible. A 40% floor may be a functional filter rather than a mechanical filter, but it is a filter nonetheless. The inquiry into the tailoring of the filter cannot precede the predominance determination without erasing the distinction between what triggers strict scrutiny and what survives strict scrutiny.
Because the ability-to-elect standard itself is a racial filter, the mere fact that a target was employed cannot render the state law presumptively unconstitutional without rendering all applications of the Voting Rights Act to redistricting presumptively unconstitutional. In most cases, this kind of tension between a statutory command and a constitutional requirement would doom the statute. Yet, despite the plaintiffs’ questionable litigation strategy, the Bethune court points out why the Voting Rights Act should—indeed, must—remain safe.
The VRA was passed pursuant to Congress’ Fifteenth Amendment enforcement power. Because the Supreme Court has already held that “redistricting legislation can threaten the right to vote on account of race in defiance of the Fifteenth Amendment’s guarantee,” the prophylactic protection provided by the VRA’s ability-to-elect standard should fall squarely within Congress’ enforcement power, thereby making it “an [in]appropriate per se trigger for strict scrutiny.” In other words, the real tension isn’t between the Constitution and a statute, it’s between two constitutional provisions: the Fourteenth and Fifteenth Amendments.
By tying the ability-to-elect standard back to its constitutional roots, the Bethune court grounds its decision in an interpretive necessity: reading predominance in a way that harmonizes the Fourteenth Amendment’s rigorous demands with the Fifteenth Amendment’s positive grant of preventative enforcement power. If the Supreme Court is tempted to strike down the VRA as applied to redistricting based on the plaintiffs’ broad interpretation of the Fourteenth Amendment—a very real possibility given that President Trump will likely get 2-4 appointments—the Court must first ask itself whether that interpretation of the Fourteenth Amendment is compatible with the Fifteenth Amendment. This is why the Bethune court held that the Constitution “[n]either requires [n]or permits the [p]laintiffs’ view of predominance.”
Racial Prioritization as Racial Predominance
The second “predominance” question is whether the legislature’s use of race must be in “actual conflict” with neutral districting criteria in order for the court to find that race predominated. Here, the Government breaks with the Bethune court, contending 1) that the decision is not “holistic” enough and 2) that there may be situations in which racial considerations are “dominant and controlling” despite not being in conflict with traditional, neutral redistricting criteria.
It’s hard to see how either is possible. First, the approach employed by the Bethune court explicitly involves “weigh[ing] the totality of the evidence and determin[ing] whether racial considerations qualitatively subordinated all other non-racial districting criteria” in the formation of the district. And, while the court noted that a district’s boundaries may deviate from neutral criteria in “isolated areas along the district’s boundary,” the court also noted that “on occasion . . . the district itself may seem facially questionable.” The “piece-by-piece” inquiry critiqued by the Government is only part of—and prelude to—a holistic determination as to whether race predominantly drove the boundaries selected.
For example, if allegedly “neutral” principles are applied in an inconsistent and discriminatory manner, then a finding of predominance can still be triggered even if each “piece” of the district conceivably reflects a neutral principle. (“If the Challenged Districts, or significant parts of the Challenged Districts, appear inexplicable by reference to the consistent application of traditional, neutral principles, then the Court will examine the basis for those departures.”) This is why the Bethune appellants are wrong to suggest that the approach employed in that case means “plaintiffs cannot demonstrate race was the predominant factor unless they prove it was the only factor.” Districters may be able to “backstop” the consistent application of one neutral principle with another when constitutional or federal law demands it, but that does not mean they can string neutral principles together in a haphazard way that undercuts their purpose and predominantly tracks race.
Second, the Government’s example of race predominating in the absence of any disregard for neutral principles directly conflicts with its position that the abstract “prioritization” of race alone does not trigger strict scrutiny. In discussing racial targets, the Government points out that “predominance does not hinge on which factors ‘take[] ultimate priority’ in redistricting, but turns instead on which factors dictate the legislature’s decision to draw particular district lines.” But then, in attempting to show that actual conflict with traditional neutral factors is not necessary, the Government argues that racially detailed population swaps might trigger strict scrutiny even if the boundaries selected comply with neutral principles.
These positions cannot be reconciled. Both racial targets and racial population swaps may provide strong evidence to prove that a state’s subordination of neutral principles was based on race (the Bethune court itself noted that “‘remarkable feats’ of racial math . . . constitute strong evidence that race predominated”), but the actual-conflict question is whether such prioritization of race can trigger predominance in the absence of conflict with consistently applied neutral principles in the enacted plan. Either targets, population swaps, and other indicators of prioritization can prove predominance on their own or they cannot; such filtering of hypothetical plans either triggers strict scrutiny or it does not.
And there is good reason to hold that it does not. Hypothetical plans that do not comply with the VRA must be filtered out under federal law and so race will always be “dominant and controlling” in this regard. This should not prompt judicial intervention. For example, if a state decides to move from a predominantly “compactness”-driven districting model to a predominantly “political subdivisions”-driven districting model, and both must comply with the VRA, one should expect the population shifts involved in such redistricting to involve great attention to racial detail. (“If a district is intentionally designed as performing district for [VRA] purposes, there should be little surprise that the movement of VTDs into or out of the district is correlated—even to a statistically significant degree—with the racial composition of the population.”) There is nothing constitutionally more legitimate about the first districting model, nothing constitutionally questionable about the second districting model, and nothing inherently predominant about prioritizing VRA compliance. Thus, if the new district boundaries contain legitimate communities of interest and other geographically defined groups of population, then the racial considerations involved in the population swaps cannot be said to have subordinated these neutral considerations in the actual, enacted plan. Absent a holding that prioritization triggers predominance, race cannot be said to be the “dominant and controlling” factor dictating “the legislature’s decision to place [the] voters within or without [the] particular district” in such circumstances. Interpreting prioritization as predominance would “demand[] the impossible” by asking “legislators to accidentally wander into compliance with the VRA.”
This is why Bethune’s actual-conflict approach is not a “new” requirement in addition to the Miller standard, but rather a clarification of the Miller standard. Subordination cannot turn solely on “prioritization,” “importance,” or “non-negotiability” without generating conflict between the Equal Protection Clause and the Enforcement Clause. The Voting Rights Act demands that race be a determinative consideration in the redistricting calculus just as constitutional law demands that population equality be a determinative consideration in the redistricting calculus. Racial targets, racial population swaps, and other forms of racial prioritization may constitute strong evidence to explain the basis of the subordination, but they cannot—standing alone—constitute subordination. As Justice O’Connor stated in Bush v. Vera, “the neglect of traditional district criteria is . . . necessary” for strict scrutiny to apply.
Again, the Lawyers’ Committee cuts to the heart of the issue, noting that the “actual conflict” standard may simply be “another way of analyzing whether the legislature, with regard to a particular district, subordinated traditional race-neutral districting principles to racial considerations.” In fact, the Lawyers’ Committee seems to apply the Bethune predominance framework in describing how to test for subordination in its McCrory brief: “Evidence that traditional districting principles were subordinated is drawn first from an objective review of the challenged district’s shape, compactness, contiguity, and demographic makeup. Courts may further [i.e., second] consider evidence of legislative purpose, such as statements in the legislative record and post hoc testimony, in order to assess the extent to which the disregard for traditional districting principles is causally related to racial considerations.” In Bethune, a third step follows: weighing all of this evidence and making a holistic determination.
It bears emphasizing that a district is its enacted boundaries. The actual, enacted boundaries define and constitute the challenged district. If the enacted boundaries consistently follow traditional, neutral conventions, then the voters are placed within and without the challenged district based in substantial part on those conventions. This is why the Supreme Court has held (and even the McCrory plaintiffs note) that redistricting “is one area in which appearances do matter.”
At this point, it may feel as though Bethune and McCrory pose little more than academic questions. The resolution of the “actual conflict” question, however, will have significant, practical consequences for legislators attempting to conduct redistricting, courts attempting to avoid breaching fundamental balance-of-powers principles, civil rights activists seeking to enact racial justice initiatives, and voters attempting to challenge discriminatory districting practices.
- For legislators, the “actual conflict” view of predominance affords a predictable and administrable way to comply with the law during the districting process. As the Bethune court noted, any broader view of predominance offers no “practical guidance” to legislators who need to know “when it may be constitutionally permissible to . . . move a boundary line to alter the demographic composition of a district for purposes of complying with . . . mandatory federal law.” If a mapmaker’s dual compliance with the demands of the VRA and the consistent application of traditional, neutral principles can still trigger strict scrutiny, then virtually every district in every redistricting cycle will be open to litigation. If subordination does not require the substantial disregard of neutral criteria, then mapmakers will have little guidance on how to comply with the VRA while crafting a plan in which race is not predominant.
- For courts, this ambiguity poses an equally problematic dilemma. If mapmakers have no discernable rule for complying with the law, and every district inherently creates an invitation to litigation, then the increasing “judicialization” of the redistricting process will only continue. This posture, and trend, raises substantial balance-of-powers concerns. The Supreme Court has “made clear that the underlying districting decision is one that ordinarily falls within a legislature’s sphere of competence,” and that “[f]ederal-court review of districting legislation represents a serious intrusion on the most vital of local functions.” The courts must provide a manageable standard for legislators to apply, lest the courts be forced into commandeering this process.
- For civil-rights activists, the “actual conflict” question also implicates broader concerns about the use of race in lawmaking. Policy preferences aside, the actual-conflict approach cabins the potential consequences of a broader predominance standard. If the “predominance” standard is read to trigger strict scrutiny whenever a law is passed “because of” a “racial purpose,” then the Equal Protection Clause may be well on its way to creating a judicially-enforced “colorblind” theory of constitutional law. The collateral consequences of such a development could limit the viability of race-conscious social justice initiatives across the board. For those who believe our problems are not colorblind, the idea that our solutions must be as a matter of constitutional law is not a welcome development. And, given the Supreme Court’s likely conservative turn over the next four years, this development would seem to be a predictable consequence of the Bethune plaintiffs’ interpretation of “predominance” and the Equal Protection Clause.
Of course, one might argue that horse has already left the barn. It is already the case that admissions programs that involve “racial considerations,” for example, are subject to strict scrutiny even if they do not employ “mechanical” targets or points-based assessments. But this only shows that—at the very least—that the field of voting rights and election law remains unique. It is well-established that “racial considerations” alone do not trigger strict scrutiny in this field. And for good reason. The Fifteenth Amendment itself expressly invokes race and grants Congress the positive power to prevent racially discriminatory voting practices. An implicitly colorblind Fourteenth Amendment is irreconcilable with the explicitly race-conscious intervention authority found in the Fifteenth Amendment.
Moreover, a race-conscious admissions policy facially distinguishes between races and treats individuals in a meaningfully different way based on this facial classification. In redistricting, however, a law that consistently applies neutral districting criteria contains no facial classifications by race, and—so long as the law does not significantly dilute the effective exercise of any given person’s electoral franchise on the basis of their race—does not treat individuals in a meaningfully different way based on their race. This careful balance allows the votes of racial minorities to be protected under the Fifteenth Amendment’s Enforcement Clause without the votes of racial majorities suffering impermissible dilution under the Fourteenth Amendment’s Equal Protection Clause. This is precisely how Justice Powell threaded the needle in Bakke between the Supreme Court’s affirmative-action jurisprudence and voting-rights jurisprudence.
- Finally, for voters challenging discriminatory voting practices, the “actual conflict” interpretation of predominance could have a substantial impact on the future of how redistricting litigation is conducted, both in the types of claims brought and in the methods of argument and evidence employed.
With respect to the types of claims brought, the Bethune appellants warn that an actual-conflict standard will invite legislators to “mask” racial gerrymanders by using traditional, neutral criteria. But there are two types of racial gerrymandering claims: the racial vote dilution claim and the racial sorting claim. These claims are “analytically distinct.” In a sorting claim, the harm stems from the facial classification itself; in a dilution claim, the harm stems from the dilution in effective voting power. If a district is crafted from the consistent application of traditional, neutral principles, this may foreclose a racial sorting claim (since race would not be the predominant criterion driving the boundaries of the district), but it would do nothing to insulate the state from a racial vote dilution claim (since “packing” minority voters into fewer districts would cause a dilution in the effective exercise of the electoral franchise just the same as “cracking” voters amongst multiple districts). These claims have different conceptual bases, cause different harms, and should not be conflated. (Plaintiffs’ counsel from Bethune have described Personhuballah as a case in which “voting rights were diluted” after “the Virginia legislature used the preclearance requirements of Section 5 of the Voting Rights Act as a pretext to pack African-American voters into Virginia’s gerrymandered 3rd Congressional District.” Perhaps that is true, but this misportrays their own case: Personhuballah was not a vote dilution case.)
While this distinction may close some opportunities, it opens up others. For sorting claims, voters should note that “[a] district formed primarily to eject black voters would employ the same racial classification as a district formed primarily to include black voters.” In other words, if a district boundary does not consistently follow neutral principles, both the over-packed performing minority voting district and the neighboring, under-represented majority voting district (from which those minority voters were drawn) might be subject to challenge.
For dilution claims, voters can still use evidence of unjustified, mechanical racial targets, even if such a target does not automatically spell success in a sorting claim. If such a target is not “reasonably necessary” to prevent dilution or retrogression—and the VRA is being used as a pretext to pack voters and dilute voting power—then the districts may be illegal despite substantially conforming to traditional, neutral principles. (Even the Bethune appellees point out that “a legislature’s use of an unjustifiable racial target might give rise to a vote-dilution claim under Section 2 of the VRA.”) Indeed, the Bethune opinion seems to imply (contrary to the appellees’ suggestion) that the 55% target was not reasonably necessary to maintain the ability to elect in the vast majority of districts challenged in that case. (In District 71, for example, the mapmaker testified that a BVAP above 50%—rather that 55%—would have been sufficient. The NAACP makes a similar point as to Districts 80 and 89.) The Bethune court never reached this question for 11 out of 12 districts based on its predominance ruling, but it is clear that a legislator must have “good reasons” for adopting a BVAP target and not just a “good faith” belief that the target was necessary.
With respect to the methods of argument and evidence employed, the actual-conflict standard might also lower the expense and complexity involved in bringing racial sorting claims. The Bethune plaintiffs primarily relied upon evidence of racial prioritization, percentages, and population swaps in making their case, without offering much testimony or argument as to how these factors had a “direct and significant impact” on the actual boundaries that were enacted. In the Government’s brief, on the other hand, we see an important argument that speaks directly to this point: the fact that some of the boundaries split VTDs in ways that could not credibly be attributed to politics rather than race because “election results are tabulated at the VTD level, so a mapmaker does not have access to reliable political performance data when choosing which portions of a split VTD to include in a district.” This constitutes a clear deviation from traditional neutral principles and substantially undermines the argument that party, rather than race, was the basis for the classification.
Although expensive expert testimony about the relative correlation of party and race in population swaps might help buttress a racial-sorting plaintiff’s case, such experts are by no means necessary to prevail when the focus of the case shifts to the consistency of a district’s compliance with neutral principles. The Bethune appellants argue that this “places primary—if not absolute—reliance on a district’s physical appearance” and reduces the sorting claim to a mere “beauty contest.” But this misses the point entirely: the animating question in a sorting claim is not whether the district is pretty, the animating question is whether the primary basis for sorting voters between districts is neutral.
The analytical focal point of neutrality ties the boundaries themselves to the equal-protection grounds for the claim. For example, if a legislative district adheres to a local county boundary, this may cause the district to be “ugly” or “non-compact,” but the boundary would still be guided by a traditional, neutral redistricting factor that advances important legitimate, neutral government ends: avoiding voter confusion, encouraging political organization and activity, enhancing accountability, and improving ease of election administration. If a boundary predominantly follows this convention, then voters have predominantly been sorted into and out of the district on a neutral basis.
Before turning to the strict scrutiny questions raised by Bethune and McCrory, a word is warranted on some of these redistricting buzzwords, such as “traditional,” “neutral,” and “legitimate.” All three are often tossed together to describe redistricting factors, practices, and purposes, but they must be separated to make sense of redistricting jurisprudence.
“Traditional and neutral” factors (such as compactness, contiguity, respect for political subdivisions, and respect for natural geographic markers or features) can serve “legitimate and neutral” purposes (such as responsiveness, accountability, and ease of administration) and can be applied in a consistent way or a discriminatory way. The Constitution does not require the use of any particular traditional, neutral factor (such as compactness) but all of these factors do have one common, constitutionally significant ingredient: they are neutral because they reflect the legitimate and neutral purposes of a geography-based system of political representation. As the Bethune court noted, states are not limited to the “traditional” list of factors, but in generating new tools for redistricting, a factor will either be “neutral” or “individualized” and should be recognized as such.
Other factors (such as political affiliation or incumbency) may be “race-neutral” (and therefore can help offset a finding of racial gerrymandering) and may be “traditional” (because of states’ historical reliance upon them) but they are not “neutral” under the Equal Protection Clause because they still sort voters based on individualized classifications. The “traditional and race-neutral” factors of political affiliation and incumbency can be used for “legitimate and neutral” purposes (such as encouraging competitive districts or preventing the pairing of incumbents) the same way a racial factor can be used for a legitimate and neutral purpose (such as preventing discrimination in districting).
On the other hand, these individualized factors (race, party, and incumbency) can also be used for illegitimate and non-neutral purposes (such as raw racial advantage, partisan advantage, or incumbency advantage). These distinctions are essential to understanding the intersection of race and politics in redistricting, and they explain why the Bethune court treated political considerations and incumbency considerations differently than compactness, adherence to political subdivisions, and other neutral factors, even though all of these are both “traditional” and “race-neutral.”
Predominance is triggered by the basis upon which the voters are sorted. If voters are sorted predominantly by race, then racial principles predominate. If voters are sorted predominantly by political affiliation, then political principles predominate. If voters are sorted predominantly by a geographic designation, then neutral principles predominate. This is why a racial classification cannot be saved by pointing to a political purpose, but it is also why a geographic designation cannot be disturbed by pointing to a racial purpose (absent evidence of animus). The political purpose cannot shield the fact that voters were sorted based on the color of their skin, and the racial purpose cannot disturb the fact that voters were sorted based on where they live. Such a balance is necessary to honor both the tenets of equal protection and the authority to enact race-conscious remedies.
Until these distinctions are given adequate attention and consistent treatment by courts and litigants alike, both racial and political gerrymandering case law will continue to develop in incoherent ways. This confusion has been compounded by litigants who have pressed racial gerrymandering claims into political service in order to end run the Supreme Court’s lamentable political gerrymandering case law. Plaintiffs end up arguing that political gerrymanders are racial ones, and states end up arguing that racial gerrymanders are political. The latter is particularly troubling, as states have begun to claim that “partisan advantage” can justify their districting decisions. Unfortunately, the Bethune court was never called upon to opine on this important subject because Virginia’s “partisan advantage” argument went (and continues to go) unchallenged by the plaintiffs. (Such an argument could have been fruitful. When the author of Bethune was faced with this question in Wittman v. Personhuballah, he suggested that partisan advantage is not a legitimate state interest.) Luckily, this exact question may land before the Supreme Court this term, as we will see below.
The Strict Scrutiny Questions
Unlike their conflicting views on predominance, the Bethune and McCrory courts offer uniquely complimentary analyses with respect to the strict scrutiny questions raised in each case.
In both Bethune and McCrory, the states pointed to Sections 2 and 5 of the VRA as justifications for their districting decisions. For its part, the Bethune court largely focused on the Section 5 justification and held 1) that preventing retrogression was a compelling government interest at the time the districting was conducted, and 2) that the boundaries of District 75 (the only district where race predominated) were reasonably necessary to achieve this interest. For each of these two holdings, however, the court raised an important distinction.
The Compelling Interest
With respect to the state interest, the Bethune court held that while a state’s goal of preventing retrogression (under Section 5) or preventing dilution (under Section 2) is compelling, a state’s goal of achieving preclearance (under Section 5) or foreclosing a dilution lawsuit (under Section 2) is merely legitimate. The court termed the first goal an interest in “actual compliance” with the VRA’s standards (i.e., avoiding dilution and retrogression), but termed the second goal an interest in “defensive compliance” with the VRA’s standards (i.e., avoiding liability). This distinction may permit the Supreme Court to quit hedging and finally, officially hold that a state’s interest in “compliance with federal antidiscrimination law” is a compelling interest.
The reason to distinguish between an interest in “actual compliance” and an interest in “defensive compliance” is perhaps best illustrated by the narrow-tailoring holding in McCrory. In McCrory, the State set a 50%+ racial target and claimed that doing so was required by (and, therefore, reasonably necessary to comply with) Section 2 of the VRA as interpreted by the Supreme Court’s decision in Bartlett v. Strickland. But as the plaintiffs note, this “misreading of Strickland runs deep.” (So deep, in fact, that the plaintiffs themselves committed the same error in Bethune.) Neither Section 2 nor Strickland requires the creation of 50%+ districts.
Section 2 (as interpreted by Strickland) states that when a numerical majority (50%+) of minority voters could fit in a hypothetical compact district, the State is required to create an actual district in which minority voters have the ability to elect the representative of their choice. If racial polarization in the region runs high, this may very well require the State to set a 50%+ target in order to protect minority voters’ ability to elect. In the absence of regional racial polarization, however, this means that the actual district that the State creates may have less than a numerical majority of minority voters. Such a district would still be a performing ability-to-elect district and would prevent dilution.
In McCrory, the State conducted no racial polarization analysis and instead simply pegged the racial target to 50%+. By doing so, the State knew it could foreclose a dilution lawsuit, even if the target was unnecessary to prevent dilution given racial polarization dynamics in the region. In other words, the State’s 50%+ target may have been reasonably related to an interest in achieving defensive compliance with Section 2 and foreclosing liability, but it was not reasonably necessary to achieve actual compliance with Section 2 and prevent racial vote dilution.
As the Supreme Court held in Miller, “compliance with federal antidiscrimination laws cannot justify race-based districting where the challenged district was not reasonably necessary under a constitutional reading and application of those laws.” Because the dilution and retrogression standards of the Voting Rights Act are tailored to an interest in preventing discriminatory voting practices, the State’s interest must align with the statute’s actual standards in order to constitute “a constitutional reading and application” of the law. An interest in defensive compliance alone causes the state interest to become disconnected from the federal interest and makes the state law an unconstitutional application of a constitutional federal law.
Thus, the question in McCrory is not, as the appellants frame it, whether the court improperly required the district to be “actually necessary” instead of just “reasonably necessary.” Rather, the question is whether a mechanical 50%+ target is “reasonably necessary” to effectuate an interest in actual compliance with the non-dilution standard of Section 2. As the McCrory court correctly held: the answer is no. A mechanical 50%+ target may help foreclose Section 2 lawsuits from the outset, but such a target is not “reasonably necessary” to maintain minority voters’ ability to elect unless racial polarization is present. As the court held, “[g]eneralized assumptions about the ‘prevalence of racial bloc voting’ do not qualify as a ‘strong basis in evidence.’”
In fact, the Bethune and McCrory courts’ distinctions on this point may be required in order to reconcile the Fourteenth and Fifteenth Amendments’ demands as well. By contending that Section 2 requires a mechanical 50%+ threshold instead of a tailored, functional analysis, the McCrory appellants are asking the Supreme Court to frustrate a key—and constitutionally critical—feature of the VRA: the law’s intrinsic, empirically-grounded throttling mechanism, which eases the law’s demands in natural correlation with what society requires.
Where discrimination persists and racial polarization remains high, the BVAP level necessary to obtain actual compliance and protect minority voters’ ability to elect remains high. However, where discrimination begins to dissipate and racial polarization lowers, the BVAP level necessary to obtain actual compliance and protect minority voters’ ability to elect also lowers. In this way, the VRA contains its own constitutional check, requiring no more consideration of race than is necessary given evolving, real-world conditions on the ground. Section 4 and Shelby County aside, this empirical tie in the ability-to-elect framework ensures that “current burdens [are] justified by current needs.” Because the language of the VRA largely reflects the language of the Fifteenth Amendment (and its judicial interpretations), and because a constitutionally-questionable 50%+ rule would be a judicial innovation rather than a statutory requirement, the Supreme Court should be obligated to reject the appellants’ narrow-tailoring argument in McCrory in order to maintain harmony between the Constitution’s own provisions. As the Strickland Court stated: “Our holding . . . should not be interpreted to entrench majority-minority districts by statutory command, for that, too, could pose constitutional concerns.”
The Narrow-Tailoring Analysis
This careful constitutional balancing is also implicated by the Bethune court’s narrow-tailoring holding. After finding actual compliance with the non-retrogression standard to be a compelling goal, the Bethune court held that District 75’s boundaries were reasonably necessary because the 55% BVAP threshold was functionally necessary to maintain minority ability-to-elect in that district and because the State’s deviations from neutral criteria were not overly substantial as judged under a sufficiency standard.
At first blush, this incorporation of the subordination standard into the narrow-tailoring inquiry seems somewhat out of place. The Lawyers’ Committee contends that “[t]hese requirements appear to conflate the predominance inquiry with the separate strict scrutiny inquiry.” In fact, the Supreme Court may need to appoint an attorney to support this position at oral argument: even the appellees do not defend this portion of the Bethune opinion in their brief.
In the end, however, the Bethune court’s narrow-tailoring holding is essential to effectuate the VRA’s nuanced requirements and honor its delicate constitutional balance. It shouldn’t provoke much controversy to acknowledge that a districting decision cannot be “reasonably necessary” if no reasonable legislator could find it necessary. But this simple axiom has important consequences. There are many “race-based districting decisions” that legislators must make in determining whether a map will or will not have a retrogressive or dilutive impact. Although districters are often preoccupied with one race-based decision in particular—whether the BVAP level in a district is high enough to maintain ability to elect—there are other related race-based decisions that must be made. For example, legislators must determine where performing ability-to-elect districts are necessary to prevent dilution or retrogression and how many such districts are necessary to prevent retrogression. All of these are race-based districting decisions that must be “reasonably necessary” to avoid dilution or retrogression, and all of these decisions demand a functional, fact-intensive analysis by those drawing the boundaries of the new districts.
As Professor Justin Levitt has written, “the Voting Rights Act is rigorously responsive to pragmatic local context, political culture, and electoral cleavages among both minority and majority populations; the presence or absence of vote dilution is relentlessly subject to proof or refutation with real data. Any remedies that the Act may require are similarly grounded in the facts on the ground.” Any shortcuts around this intensely local and factual appraisal would fail to account for the law’s “anti-essentialist nuance” and would make the VRA a vehicle for the very harms it was enacted to defeat.
And, just as a “mechanical” BVAP target is not reasonably necessary to prevent dilution or retrogression, so too are other “mechanical” readings not reasonably necessary to prevent dilution or retrogression. Population demographics change over time and must be reflected in the new map, and racial demographics change over time and must be reflected in the new map. This may mean that a new performing ability-to-elect district becomes necessary to prevent dilution, or that an old ability-to-elect district is no longer necessary to prevent retrogression. And, just as a mapmaker cannot mechanically peg a BVAP threshold to an old BVAP threshold and call it a day, a mapmaker cannot mechanically try to put the same districts in the same places in the same numbers and call it a day. Such race-based decisions are not reasonably necessary to prevent actual dilution or actual retrogression. (To the extent the Supreme Court’s understanding of “benchmarks” suggests otherwise, that reading of retrogression would need revisiting as a matter of plain logic and constitutional consistency. The fact that people are born, move, and die means that retrogression cannot occur solely because the number of ability-to-elect districts changes. The Fifteenth Amendment protects individuals, not artificial numbers of districts. I would recommend the Court use a “floating benchmark” in the redistricting context, but that is a topic for another day.)
Requiring districters to conduct a functional, fact-based assessment across all of these questions is also necessary to honor the delicate balance struck by the VRA. It is obvious that the state plan must comply with the constitution, the state plan must comply with federal law, and federal law must comply with the constitution. What is less obvious is what this means for the narrow tailoring analysis: to thread the needle through all of these requirements simultaneously, the state law must comply with a constitutional reading of federal law. If the state does not reasonably apply the federal law’s actual standards in crafting its own law, then the federal law may be unconstitutional as applied and cannot be used to justify the state’s plan. In such case, the state law would violate the constitution (the Equal Protection Clause) without any compelling interest to support its behavior (a federal mandate to prevent dilution or retrogression).
For example, in McCrory, the appellants are attempting to save a presumptively unconstitutional state law (the racially gerrymandered district) by reference to an unconstitutional reading of federal law (requiring 50%+ floors under Section 2). Thus, the state law is not “reasonably necessary” to achieve actual compliance with a constitutional reading of federal law. The McCrory case is easy because it deals with a race-based question that has already received great attention and analysis: whether a mechanical BVAP threshold is reasonably necessary.
The Bethune court’s narrow tailoring analysis for Section 5 mirrors this approach, but deals with a different race-based question that has received less attention and analysis: whether the district itself was reasonably necessary to prevent retrogression. DOJ regulations make clear that “preventing retrogression under Section 5 does not require jurisdictions to violate Shaw v. Reno and related cases.” Thus, states do not need to subordinate neutral principles to racial considerations in order to comply with the VRA’s actual retrogression standard (even if doing so might help obtain preclearance).
At first blush, this presents a catch-22: if avoiding retrogression does not require subordination, then how can subordination be justified by an interest in avoiding retrogression? This is the paradox that riddles the Lawyers’ Committee (“If race predominates over non-racial criteria, then in some sense the departure is always ‘substantial.’”), and it is presumably the paradox that has caused the Supreme Court to withhold blessing “compliance with the VRA” as a compelling interest for so long.
Yet, it is here that the Lawyers’ Committee in Bethune makes the same mistake as the appellants in McCrory. The Bethune court has not required that the subordination found in the district be “actually necessary”; the court has required only that the district be “reasonably necessary” to achieve an interest in actual compliance with the non-retrogression standard. This is why the court uses a preponderance standard for the predominance inquiry and a sufficiency standard for the narrow-tailoring inquiry. If no reasonable legislator could have believed that neutral criteria predominated, then the legislature would be attempting to save a presumptively unconstitutional state law (the racially gerrymandered district) by reference to an unconstitutional reading of federal law (requiring subordination under Section 5). Under the DOJ’s own guidelines, such a district is not necessary to prevent retrogression. Thus, the state law would not be “reasonably necessary” to achieve actual compliance with a constitutional reading of federal law. If, on the other hand, a reasonable legislator could have believed that neutral criteria predominated (under a sufficiency standard) despite a federal court finding otherwise (under a preponderance standard), then the presumptively unconstitutional state law (the racially gerrymandered district) would be properly saved by reference to a constitutional reading of federal law (the actual retrogression standard). This is why the Bethune court distinguishes between a state’s actual compliance (which only a court can decide) and a state’s reasonable attempt at actual compliance (which a legislator can decide).
Thus, the subordination component of the district court’s narrow-tailoring inquiry is not an “additional requirement.” Indeed, after calling it so, the Government ironically concludes: “All the legislature was required to show was that it had good reason to believe that the district it drew was necessary to comply with Section 5 under a proper understanding of the statute’s requirements.” But the Government’s own regulations state that “preventing retrogression under Section 5 does not require jurisdictions to violate Shaw v. Reno and related cases.” Thus, if no reasonable legislator could conclude that the district complied with “Shaw v. Reno and related cases,” then the legislature could not, by definition, have any “good reason to believe the district it drew was necessary to comply with Section 5 under a proper understanding of the statute’s requirements.”
The same goes for Section 2, where the McCrory appellees suddenly (if unintentionally) align themselves with the Bethune court’s narrow-tailoring approach. Compare Appellee Br. at 37 n.10 (“The fact that CD1’s bizarre shape is predominantly attributable to race indicates that the State failed to establish a strong basis in evidence as to the first Gingles factor as well.” (citing Vera, 517 U.S. at 979 (“[Section] 2 does not require a State to create, on predominantly racial lines, a district that is not ‘reasonably compact.’”))), with Bethune-Hill, 141 F. Supp. 3d at 546 n.24 (“Nor does Section 2 require states to [subordinate traditional, neutral districting principles to race]. That is because Section 2 requires a plaintiff to first prove that the minority group was ‘geographically compact’ and could have constituted a numerical majority in a hypothetical single-member district.”). Again, if no reasonable legislator could believe that a constitutional reading of Section 2 required the districting decision, then the districting decision is not reasonably necessary to comply with Section 2 “under a proper understanding of the statute’s requirements.”
The Lawyers’ Committee’s counterexample fails to upset this basic principle. In its Bethune brief, the Lawyers’ Committee cites to the case of King v. Illinois State Board of Elections, saying that the district in that case employed “convoluted” boundaries, which triggered strict scrutiny, but that the district was narrowly tailored nonetheless:
“[The] arrangement was a narrowly tailored response to a very specific geographical dilemma, namely that the African American population in Cook County was sufficiently numerous to maintain three reasonably compact majority-black congressional districts, and that the Latino population was sufficiently numerous to draw a reasonably compact majority-Latino congressional district, but that at least one district had to be non-compact for all four to coexist. Finding that Section 2 provided a compelling reason to draw three majority-black districts and one majority Latino district, the district court found that, because the challenged district was non-compact only to the extent needed to perform an “end-run” that linked together geographically-proximate Latino neighborhoods (between which an existing majority-black congressional district lay), it was therefore narrowly-tailored and constitutional.”
The Lawyers’ Committee contends that “[t]his constitutional district would not survive the [Bethune] [c]ourt’s standard” because the “departure from traditional districting criteria” was “substantial.”
With due respect to the Lawyers’ Committee, the Bethune court never held that a district’s departures cannot be “reasonably necessary” if they are substantial. Rather, the Bethune court held that a district’s departures cannot be “reasonably necessary” if they are so substantial that no reasonable legislator could believe them necessary to comply with the VRA. The court applied a preponderance standard at the predominance stage and a sufficiency standard at the narrow-tailoring stage. This distinction should not be difficult to apply for any court that has ever entered a judgment notwithstanding the verdict: the question is not whether you believe otherwise; the question is whether anyone could believe otherwise.
This position has a long history in VRA jurisprudence. Just because there is a “strong basis in evidence for concluding that a § 2 violation exists [somewhere] in the State,” for example, does not mean that the legislature may “draw a majority-minority district anywhere [in the State].” One way to determine if the district is necessary at all, or is in the right area of the state, is to evaluate to what extent the districter must depart from traditional, neutral principles in order to secure an ability-to-elect in the district. At a certain point, the contrivances necessary to reach this level would undermine the idea that the VRA actually requires an ability-to-elect district in that location at all.
Thus, if no reasonable legislator could believe that the district was necessary to comply with the VRA’s actual standards, then the district cannot be “reasonably necessary” under a constitutional reading of the statute. This is why, in Bush v. Vera, Justice O’Connor noted that the extent of a State’s disregard of neutral criteria “is not irrelevant to the narrow tailoring inquiry” when it “exhibit[s] a level of racial manipulation that exceeds what [the VRA] could justify.” With respect to BVAP levels, a legislator may need to ask, “what percentage is necessary to protect minority ability to elect?” But, with respect to boundaries, a legislator must ask “does this district entail more subordination than the VRA could justify?” These are all relevant questions that bear on the ultimate inquiry: “Are the race-based districting decisions we have made reasonably necessary to comply with a constitutional reading of the VRA?”
The Year Ahead
The analysis above leads to a surprising outcome: Bethune-Hill and McCrory should both be affirmed by the Supreme Court this term.
For Bethune, the Supreme Court should hold that neither targets nor prioritization automatically trigger a finding of predominance and that courts must find some actual conflict between the consistent application of traditional, neutral criteria and the State’s use of race in order to find predominance. Although the Government makes a convincing argument that the VTD splits analyzed by the Bethune court cannot be explained on the basis of party affiliation because election returns data is not that granular, this is unfortunately a belated contention that appears to have been raised for the first time on appeal. Thus, the district court’s predominance determinations should stand. (None of this is to say that a racial vote dilution claim would necessarily fail in these districts.)
The Court should also affirm the Bethune court’s strict scrutiny analysis and finally, formally hold that complying with the VRA’s non-dilution and non-retrogression standards is a compelling state interest, even if attempting to avoid liability alone cannot justify the State’s predominant use of race. Further, the Court should reiterate that its Alabama holding applies to all race-based districting decisions, and that the relevant question is whether the race-based districting decision was reasonably necessary to comply with a constitutional reading of the non-dilution and non-retrogression standards. This includes asking whether a district’s boundaries have so drastically abandoned traditional, neutral principles that they cannot be justified by the VRA’s actual, constitutional requirements.
For McCrory, the Supreme Court can also uphold the district court’s predominance findings, despite that court’s improper “racial filter” analysis with respect to BVAP targets. As all of the parties acknowledge, the districts at issue in McCrory drastically departed from traditional, neutral districting principles. In the plaintiffs’ words, “the sacrifice of traditional districting principles [in District 1] is plain on the face of the district” and “[t]he barest glance at CD12 reveals that it cannot be explained by traditional redistricting criteria.” And, as the Government notes, this clear “actual conflict” means that the McCrory decision “does not present the question whether such a finding is required” at all.
As to the McCrory court’s strict scrutiny analysis, the Supreme Court should affirm as well. A 50%+ threshold may have foreclosed the possibility of Section 2 lawsuits, but it was not reasonably necessary to prevent violating Section 2’s actual non-dilution standard. And, even if one were to credit the appellants’ argument that CD12’s deviations from neutral principles were “to maximize political opportunities for the party in power” rather than to meet the 50%+ threshold, the appellants should still fail. Even if the district’s deviations from neutral principles were predominantly political rather than predominantly racial, the State’s justification for those deviations does not constitute a “legitimate state interest.” Although the plaintiffs did not challenge this “partisan advantage” argument in either Bethune or McCrory, the State cannot justify deviations from neutral principles for this purpose. “Partisan advantage,” as we shall see, is not a justification that the Equal Protection Clause permits.
POLITICAL GERRYMANDERING CASES
The federal courts have seen a flurry of political gerrymandering claims working their way through the system, and the year ahead could bring landmark developments on this front as well. In particular, two cases before two different district courts (in Wisconsin and Maryland) and one case pending before the Supreme Court (from North Carolina) may offer the Court an opportunity to clarify the status of political gerrymandering claims. One (or more) of these cases could result in viable and enforceable limits on the disreputable practice of legislators picking their own constituents to their electoral advantage. The potential for widespread challenges to partisan districts nationwide—and the attendant impact on our democracy—cannot be overstated.
Before proceeding to the cases, however, it is important to distinguish between “political gerrymandering” (which is the practice of drawing district lines based on likely political affiliation, election returns, or other “political” data) and “partisan gerrymandering” (which is when legislators engage in political gerrymandering for the purpose of achieving a partisan advantage). This distinction is critical to make at the outset because “political gerrymandering” can be conducted for legitimate, neutral purposes rather than illegitimate, discriminatory purposes.
For example, although many reformers think political data should be disregarded entirely during the districting process, other reformers think districts should be drawn so that they are more “competitive.” While this may be a legitimate, neutral interest, the act of drawing “competitive” districts requires mapmakers to engage in a form of political gerrymandering, giving political data a central role in where district boundaries fall. Thus, the constitutional problem does not stem from the use of political affiliation in districting, it stems from the purpose of the gerrymander.
The three cases below arise from partisan gerrymanders in Wisconsin, Maryland, and North Carolina and offer different standards, measures, and theories to find violations under different provisions of the Constitution.
Wisconsin
In Whitford v. Gill, the plaintiffs have challenged a Republican gerrymander using a three-part standard and vote-dilution theory of harm under the Fourteenth Amendment’s Equal Protection Clause. (The plaintiffs also brought a First Amendment claim, but the standard and theory relied upon are functionally identical and the challenge has focused on equal protection grounds.) As of today, the trial has concluded and the parties are awaiting a decision from the district court. Whatever the outcome, however, it seems likely that the decision will be appealed to the Supreme Court.
Under the proposed three-part test, plaintiffs must show 1) that a plan was enacted with partisan intent and 2) that the effect of the plan was to create a “large and durable level of partisan asymmetry relative to historical norms”; if this is established, then 3) the defendants must show that the “partisan tilt was unavoidable given the state’s political geography and legitimate redistricting objectives.” To determine whether the dilutive effect is constitutionally significant, the plaintiffs propose a measure known as the “efficiency gap,” which reflects “the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast.” A vote is “wasted” if it is cast for a losing candidate, or if it is cast for a winning candidate in excess of what was necessary to prevail.
There are three critiques of the plaintiffs’ approach that bear mention. First, one critique is that vote dilution isn’t always attributable to “partisan gerrymandering.” Because liberals are more likely to live in urban centers, their votes redundantly pile up in some districts through “self-packing.” This reduces the statewide proportional influence of liberal voters in a way that is attributable to our nation’s system of geographic representation using single-member districts. For example, it is estimated that “Democrats now require between 54% and 55% of the vote to have a chance of retaking the House.” This may seem like it violates basic majoritarian norms, but there is likely to be some level of disconnect between voter preferences and voting outcomes for any system based on geographic, single-member representation. Eliminating partisan gerrymandering could help reduce these disparities, but it would not eliminate them. (This is why some organizations, such as FairVote, advocate for a different approach altogether.)
A second critique is that the efficiency-gap measure should not be given dispositive weight, such that “some arbitrary statistical threshold” becomes a constitutional requirement. How, for example, can it be said that a 6% efficiency gap does not violate the Equal Protection Clause, but a 7% efficiency gap does (or that a 12% gap does not, but a 13% gap does)?
Finally, one might ask why the state bears the burden of showing the dilutive outcome was unavoidable rather than the plaintiff bearing the burden of showing that the dilutive outcome was avoidable. If the plaintiffs are employing an intent-plus-effects standard and a vote-dilution theory, then presumably showing that the dilutive outcome was avoidable is necessary to show that the “effect” is constitutionally problematic (rather than merely a feature of, say, the state’s geography).
Although each of these critiques is reasonable (I have expressed some of them myself), the plaintiffs should ultimately prevail in this case. Why? Because the plaintiffs have noted throughout the duration of the litigation that “plaintiffs’ proposed test is just that—a proposal.” As the plaintiffs point out, their “three-part test is not set in stone,” and the “responsibility for developing a discernible and manageable standard for th[e] cause of action” is “shared by the judiciary.” By folding the third part of the test into the “intent-plus-effect” burden facing the plaintiffs and by changing the “efficiency gap” from a dispositive measure into an informative measure, the district court in Whitford can easily ground this claim in the Supreme Court’s longer and deeper vote-dilution jurisprudence and rely upon the totality of the circumstances to determine whether a constitutional violation has been found.
Now, the plaintiffs may well have sought to avoid an “intent-plus-effects” standard and a totality of circumstances measure because such an approach hearkens back to Bandemer. But—as will be discussed below—this is ultimately an asset, not a liability.
Maryland
In Shapiro v. McManus, the plaintiffs have challenged a Democratic gerrymander using a three-part “retaliation” standard and vote-dilution theory under the First Amendment. As of today, the plaintiffs have survived (2-to-1) a motion to dismiss in the district court.
Under the three-part test, plaintiffs must show 1) that the district was drawn with the specific intent to impose a burden on the voters based on their political affiliation/expression, 2) that the challenged map diluted the votes of the targeted voters to such a degree that it resulted in a tangible and concrete adverse effect, and 3) causation (i.e., absent the intent to burden the group, the adverse impact would not have occurred).
Although the plaintiffs survived a motion to dismiss and have lived to fight another day, the majority’s opinion was countered by a forceful dissent that raised questions the plaintiffs must eventually reckon with. As Professor Hasen has noted, “framing this injury as a First Amendment one rather than an Equal Protection one cannot solve the line-drawing problems that the Court has recognized in [political gerrymandering] cases such as Vieth.”
Even if framing the injury as a First Amendment one fails to resolve the Supreme Court’s key concerns, however, the Shapiro dissent’s analysis reflects why these concerns may be misplaced. In particular, the dissent rests its opinion on two major pillars: the inability to say “how far is too far” and the lack of “manageable standards.”
For the first pillar, the dissent points out that the plaintiffs may have offered a framework for their analysis (a three-part standard, a vote-dilution theory, and a First Amendment basis), but they have not offered any kind of measure to ascertain how much vote dilution is too much. Stating that the dilution must be “to such a degree that it results in a tangible and concrete adverse effect” merely repackages the question rather than answering to it. The dissent contends that “the Supreme Court has expressed some degree of tolerance for partisanship in the districting context, but that tolerance creates intractable line-drawing problems.” According to the dissent, “A per se rule flatly prohibiting state legislatures from taking account of voting history or voter affiliation in their mapmaking would streamline the preliminary analysis, but it is not clear that such a rule is available in light of controlling law (or desirable in light of competing interests and objectives).” This is because “a rule that would preclude the kind of nefarious viewpoint discrimination Plaintiffs describe . . . might very well sweep up neutral or even useful political considerations” such as “maintaining the competitive balance among political parties; avoiding contests between incumbents, provided that incumbents of one party are not treated more favorably than those of another; and preserving communities of interest.”
As I have written before, however, the constitutionality of political gerrymandering should not turn on the degree of the gerrymander, but rather the type of gerrymander. It is not necessary to conflate political linedrawing for legitimate, neutral purposes (such as fostering competition or avoiding contests between incumbents) with political linedrawing for illegitimate, discriminatory purposes (such as partisan advantage or incumbency advantage). If the state has a legitimate, neutral purpose, it can politically gerrymander—even to an extreme degree—without implicating any constitutional concerns. This may not be preferable as a matter of policy, but it is not unconstitutional as a matter of law. When a party seeks “partisan advantage,” however, then the gerrymander becomes constitutionally questionable because such an interest is neither legitimate nor an interest of the “state” itself.
Despite the dissent’s claim to the contrary, Supreme Court case law need not be read to support “some degree of tolerance” for an interest in partisan advantage. In each case where the Supreme Court has upheld a political gerrymander, the state has offered a legitimate, neutral interest besides “partisan advantage.” And, when directly asked whether “partisan advantage” is a legitimate state interest, the Court has repeatedly declined to answer the question, including in Harris v. Arizona Independent Redistricting Commission just last term.
This hesitance likely stems from a fundamental misunderstanding of the question at issue. The question is not whether partisanship is constitutional; the question is whether partisan advantage is a legitimate state justification for a law. It is quite obvious that “partisanship” is constitutional. Competition in elections is a fundamental feature of democracy and parties help crystallize platforms and mobilize voters. A law will almost always pass because the legislator believes it will be politically beneficial—that’s just how representative democracies function.
Yet, recognizing that partisan motivations underlie almost every law and that partisanship plays an important role in our constitutional democracy does not require us to accept that “partisan advantage” is a legitimate state justification for burdening or classifying citizens. Indeed, this is precisely the reason “partisan advantage” must be rejected as a state justification: if “partisan advantage” were a legitimate state interest then rational-basis review could not exist. If every law could be justified on the basis that “it will help our party win the next election,” then no law would fail rational-basis review. Burdening or classifying citizens requires some legitimate neutral state justification; this is what forces parties to compete on rational merits.
In short, partisanship may explain virtually every law, but when the state is called to provide the constitutional basis for a law it must point to a legitimate, neutral state interest. Without that, the burden imposed cannot be rationally justified. Requiring the state to put forth a rational basis for its enactment—this barest of constitutional requirements—ensures that our democracy honors the rule of law and the rights of its citizens rather than being reduced to mere majoritarian blood sport.
This is why there need not be a “per se prohibition on partisanship” in order to find linedrawing for partisan advantage to be unconstitutional. There is no legitimate basis for intentionally diluting the electoral opportunities of some voters (or classifying those voters) based on their political preferences, voting patterns, or beliefs.
For the second pillar, the dissent contends that the courts “are simply not equipped to ascertain those unusual circumstances in which redistricting inflicts an actual, measurable burden on voters’ representational rights.” In particular, the dissent believed that courts cannot “reliably distinguish between what Plaintiffs would term impermissible ‘vote dilution’ and the ordinary consequences of an American political process that is organic, fluid, and often unpredictable.” The dissent’s animating concern here is that “constitutional adjudication in the federal courts . . . must not be inconsistent or ad hoc but must instead be ‘principled, rational, and based upon reasoned distinctions.’”
The problem for the dissent is that these objections are incompatible with the existence of any vote-dilution claim, including racial vote-dilution claims. Racial vote dilution isn’t just prohibited by statute, it is prohibited under the Fourteenth Amendment as well. Although the intent-plus-effects test of the Fourteenth Amendment looks to a range of factors and evidence to inform the court’s decisionmaking, the ultimate decision is holistic and made under the totality of the circumstances. To argue that this is “ad hoc” is to argue against the totality-of-circumstances test itself.
Admittedly, the plaintiffs’ First Amendment “retaliation” theory does necessarily require placing a troubling amount of emphasis on specific election results to show dilutive effect. Yet, this would not be required under an equal-protection-based political vote dilution claim, which—like an equal-protection-based racial vote dilution claim—looks to the intentional suppression of an identifiable group’s effective electoral opportunities rather than the group’s effective electoral outcomes.
Although the Shapiro case has perhaps the most difficult road ahead of the three based on its outcome-focused retaliation theory, it is also in its earliest stages, leaving the litigants plenty of time to draw upon the lessons of other cases as they unfold.
North Carolina
The final case, Harris v. McCrory, is already pending before the Supreme Court and arises from a Republican gerrymander in North Carolina. (Disclosure: I served as counsel to an amicus in this case, OneVirginia2021: Virginians for Fair Redistricting. The views below are my own, and OneVirginia2021 has consented to my discussion of the case in this post.)
The unique facts of this case stand apart. After the state’s original map was struck down as an unconstitutional racial gerrymander (as discussed above), the state enacted a new map. This time, the state’s districting criteria prohibited the use of racial data, but permitted the use of political data. In fact, this was the “only data other than population data to be used” by the redistricting committee. Then, in a section entitled “Partisan Advantage,” the committee’s criteria explicitly stated that it would be required to “make reasonable efforts to construct districts” that would result in a congressional delegation of “10 Republicans and 3 Democrats.”
The plaintiffs challenged the new map as an unconstitutional partisan gerrymander, but the district court held that the plaintiffs had not provided a “suitable standard” to demonstrate that partisan considerations had gone “too far.” The plaintiffs, understandably, appealed.
Although the plaintiffs set out both Equal Protection and First Amendment claims in their appeal, this case is perhaps the simplest of the three because its resolution requires no clear standard, theory, or measure. Because the legislature’s redistricting committee was so unabashed and explicit in declaring “partisan advantage” to be the state’s purpose for the gerrymander, the Court has no need to wade into the complex question of what test to apply: the Court can just hold—finally—that “partisan advantage” does not constitute a legitimate state interest. It is black-letter equal-protection jurisprudence that any law employing any kind of facial classification of persons—such as a political classification—must at least satisfy rational-basis review. Thus, the State of North Carolina must at least show that the classification furthered some legitimate state interest.
This, the State cannot do. The defendants describe the 10-3 target as merely “maintaining existing partisan balance,” but this definition of “partisan balance” marks a clear departure from the Court’s prior cases. In the Court’s prior cases, it has upheld maps that seek to fulfill a “political fairness” principle or achieve a “partisan balance” in the state, but these purposeful delegation figures have always reflected the state’s underlying voter preferences.
As OneVirginia2021 notes, the districters in Gaffney adopted a map that would provide for “proportional representation of the two major political parties,” and the districters in Cromartie sought a “partisan balance” of “six Republicans and six Democrats”—a figure that roughly approximated the parties’ relative voting strength in North Carolina at the time. This goal—like the goal of “encouraging competition”—reflects a legitimate, neutral view about what kind of political culture the state would like to embrace. Again, a “bipartisan gerrymander” may not be desirable as a matter of policy, but as a matter of constitutional law, the Equal Protection Clause does not “take sides” in a dispute over “whether it is better for Democratic voters to have their [representatives] include 10 wishy-washy Democrats (because Democratic voters are ‘effectively’ distributed so as to constitute bare majorities in many districts), or 5 hardcore Democrats (because Democratic voters are tightly packed in a few districts).”
To argue that the State of North Carolina has an interest in electing a 10 Republican/3 Democrat congressional delegation regardless of underlying voter preference is irrational and constitutionally illegitimate. The idea that the government itself has an interest in suppressing certain voters in order to achieve the electoral outcome it wants is incompatible with the concept of democracy itself. And, as discussed above, the justification that “it will help us win” cannot stand as the constitutional basis for any law without unwinding the very foundations of rational-basis review.
Thus, assuming that the Supreme Court affirms the district court’s racial gerrymandering decision in McCrory v. Harris, the Supreme Court should also go on to reverse the district court’s partisan gerrymandering decision in Harris v. McCrory. By expressly classifying voters based on election returns data and expressly indicating that the purpose of the classification was to achieve a “partisan advantage,” the districters have provided the Supreme Court an easy and clean case. The Court can strike down North Carolina’s new plan without having to resolve any of the more complicated questions about what standard, theory, or measure to apply in normal partisan gerrymandering cases. (Indeed, the Brennan Center takes a more limited view on the merits and contends that the Court should just summarily reverse so as to give the district court an opportunity to invite further factual and legal development. If the Court were not quite ready to hold that “partisan advantage” is an illegitimate interest, it could take this route as well. In the past, Chief Justice Roberts has expressed a desire to let political gerrymandering cases “percolate,” so this approach may be enticing to a broader cross-section of a divided bench.)
The Year Ahead
Eventually, the Supreme Court will need to bring its three-decade-long avoidance strategy on political gerrymandering to an end. Although many have searched in vain for a new, singular, innovative, and all-encompassing political gerrymandering claim to finally lead the Supreme Court forward on this issue, perhaps there is more promise in looking backwards.
The twin concepts of racial and political vote dilution were born together in Fortson v. Dorsey. These two equal protection claims were considered to be identical for over twenty years before they seemingly split ways in Bandemer. Yet, the “split” in Bandemer may be less troubling in hindsight than it seemed at the time. The two political gerrymandering tests proposed in Bandemer bear a striking resemblance to the two racial gerrymandering tests that would evolve several years later: one being a “intent-plus-effects”-based vote-dilution claim and the other being a “classification”-based sorting claim. Rather than continuing to search for one political gerrymandering claim that is unique from racial gerrymandering jurisprudence, the Court should accept two political gerrymandering claims and finally reunite political and racial gerrymandering case law. This would not only bring jurisprudential and analytical consistency to the field, it would also rehabilitate the precedential effect of Bandemer by transforming its two “split” opinions into one majority holding.
By taking this approach, the path ahead would become far clearer: the Whitford plaintiffs could prevail on an intent-plus-effects political-vote-dilution claim resolved under the totality of the circumstances; the Shapiro plaintiffs would fail in their First Amendment retaliation claim but could be given an opportunity to amend their complaint to state a classification-based political-sorting claim; and the Harris plaintiffs would prevail based on North Carolina’s express use of a political classification for partisan advantage.
The Supreme Court should take this opportunity to restore clarity and common sense to its gerrymandering jurisprudence. The Court has stood idly by for three decades, watching the rights of American citizens go violated by legislators who seek to entrench themselves in power without any constitutional justification. The American people expressed outrage last week at this “political establishment,” but even then could do little to unseat the vast majority of incumbents. This year, the highest court in the land has an opportunity to fulfill its duty and restore legitimacy to our democracy. As the Court stated in Reynolds v. Sims, “a denial of constitutionally protected rights demands judicial protection; our oath and our office require no less of us.”
Modern Democracy 
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