Category: Districting

The Value of Gerrymandering

On Tuesday, Justice Sotomayor asked a “simple but devastatingly effective” question of Erin Murphy, one of the attorneys arguing in favor of Wisconsin’s gerrymandered map: “Could you tell me what the value is to democracy from political gerrymandering?”  At first glance, Justice Sotomayor’s question seems important because it transcends “the technicalities of constitutional doctrine” and raises “first principles,” making the presumed answer easy: “Political gerrymandering has no value in a democracy.”

Murphy’s answer—claiming that gerrymandering “produces values in terms of accountability”—seemed incomprehensible to observers.  “I really don’t understand . . . what that means,” was the Justice’s own apt response.  The type of gerrymander enacted in Wisconsin is specifically designed to defeat accountability, not foster it.  What was Ms. Murphy—a stellar advocate—talking about?

The answer is more revealing than it might seem because Justice Sotomayor’s question is more complex than it might seem.  Asking about the “value” of gerrymandering doesn’t just implicate democratic “first principles”—it strikes at the heart of the constitutional doctrine as well.

As Justice Breyer observed in his Vieth dissent (invoked by Ms. Murphy), political considerations can “play an important, and proper, role in the drawing of district boundaries.”  In Vieth, Breyer points to an example of a neutral court-appointed boundary drawer accidentally moving an uninhabited swamp from one district to another, thereby inadvertently disrupting environmental projects that were important to the politician representing the swamp’s former district.  This may be a “micro” political consideration, but any person (or organization) that has spent years working with his or her representative on a specific neighborhood project will recognize the democratic value in keeping certain areas tied to certain seats, whether to support and maintain the politician who is doing good work or to mobilize and defeat the politician who has stymied that work.  This accountability and responsiveness to voters’ interests is a feature of democracy, not a bug.

At a “macro” level, the Court has also previously allowed mapmakers to allocate seats proportionally based on statewide party voting strength, and presumably would allow a legislature to draw “competitive” seats, if it so chose.  Because both of these interests require mapmakers to draw districts based on voters’ political preferences and beliefs, however, both of these forms of redistricting are also—in the Court’s own confusing doctrinal parlance—“political gerrymandering.”

In other words, “political gerrymandering” (as the Court has curiously defined it) can serve important democratic values such as accountability, competitiveness, proportionality, etc.  Murphy’s unconvincing attempt to tie the Wisconsin map to these examples and precedents, however, reveals a key doctrinal distinction: political gerrymandering for partisan advantage does not have any such constitutional legitimacy.  That is why divvying up congressional seats in purple North Carolina between 6 Ds / 6 Rs in 2001 can be constitutional, even if divvying up the same state between 3 Ds / 10 Rs in 2016 is not.

Justice Kennedy makes a similar point in LULAC when discussing the difference between legitimate incumbency considerations and illegitimate incumbency considerations (leaving open the question of whether such a distinction might support a claim outside the racial gerrymandering context):

“The Court has noted that incumbency protection can be a legitimate factor in districting, but experience teaches that incumbency protection can take various forms, not all of them in the interests of the constituents.  If the justification for incumbency protection is to keep the constituency intact so the officeholder is accountable for promises made or broken, then the protection seems to accord with concern for the voters.  If, on the other hand, incumbency protection means excluding some voters from the district simply because they are likely to vote against the officeholder, the change is to benefit the officeholder, not the voters.  By purposely redrawing lines around those who opposed [the incumbent], the state legislature took the latter course.  This policy, whatever its validity in the realm of politics, cannot justify the effect on Latino voters.”

Justice Sotomayor’s question isn’t a “gotcha” intended to corner an advocate—it’s a graceful synthesis of the Supreme Court’s confusing case law.  If a map advances democratic values, or legislators redistrict with the purpose of advancing democratic values, then there is little justification for courts to get involved, as the Justices recognized in Gaffney v. Cummings: “[The] judicial interest should be at its lowest ebb when a State purports fairly to allocate political power to the parties in accordance with their voting strength and, within quite tolerable limits, succeeds in doing so.”  When legislators act counter to democratic values and attempt to insulate themselves from their own voters, however, they cannot hide behind the mere fact that “politics” play a (well-warranted) role in the redistricting process—a distinction the Justices also recognized in Gaffney: “[A plan] may be vulnerable [to challenge], if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized.”

Sotomayor’s question lays bare the simplicity of this constitutional issue in a way “the intelligent man of the street” is sure to appreciate.  Far from diminishing the Court’s credibility, judicial intervention along these lines would enhance the reputation of the Court, just as the one-person one-vote doctrine did decades ago.  And just as this generation may now wonder how an obvious doctrine like one-person one-vote took so long to arrive, “[s]o too will it be when this generation explains to their children that the government used to be able to discriminate between citizens based on how the government predicted they would vote, allowing the state to favor preordained candidates and to suppress the influence of those who disagreed with the state-sanctioned choices.”

What is the value to democracy from political gerrymandering for partisan advantage?

The intuitive answer is the right one: None.

Turmeric for a Rare Consensus

Today, the Supreme Court heard argument in Gill v. Whitford.  The Court seems as divided as ever, and the ultimate outcome still rests in Justice Kennedy’s unpredictable hands. Yet, oral argument revealed something else: litigants who seem to agree on a key principle and Justices who seem to be revisiting the important parallels between racial and political gerrymandering case law.

As far as predictions go, guessing where Justice Kennedy will land remains difficult, but the conservative bloc on the Court previewed the outline of an opinion that it surely hopes Kennedy will join.  Their two key arguments seem tailored to Kennedy: (1) the claim is not sufficiently rooted in the Constitution, and (2) intervention would threaten the Court’s institutional integrity and exceed its constitutional role.

Chief Justice Roberts called the efficiency gap “gobbledygook” (a label eyebrow-raisingly endorsed by Justice Breyer); argued that a ruling “based on the fact that EG was greater than 7 percent” doesn’t “sound like language in the Constitution”; and aired the concern that “the intelligent man on the street” would think that the EG explanation was “a bunch of baloney” and would instead believe that judicial cases were being decided based on the Justices’ own partisan preferences, causing “very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.”  Justice Alito joined the fray with a framing sure to irritate young scholars everywhere: “In 2014, a young researcher publishes a paper . . . [saying] I have discovered the Rosetta stone and it’s . . . the efficiency gap.  And then a year later you bring this suit and you say: There it is, that is the constitutional standard. . . . [A]fter 200 years, it’s been finally discovered.”

Some of this is misleading: the plaintiffs did not claim on appeal that the efficiency gap should be dispositive. Justice Gorsuch took on this point in turn, observing that the district court “didn’t rely on [the] efficiency gap entirely” but instead relied on a range of measures of partisan asymmetry.  Likening the court’s effects analysis to his own steak rub (including “a pinch of this, a pinch of that,” and a touch of the Justice’s favored turmeric), Gorsuch lamented that an unpredictable mix of tests “doesn’t seem very fair to the states” who must comply with whatever law the Supreme Court announces.  In perhaps one of the morning’s more loaded questions, the Justice then asked plaintiffs, “What is it that you want us to constitutionalize?”

While it’s fair to point out that the horse may be out of the barn when it comes to fears about politicizing the Supreme Court or losing the trust of voters, the credibility of the Court still matters to the long-term health of the country and these arguments only need to win over one voter: Kennedy.  And Justice Kennedy is notoriously sensitive to the institutional role of the Court in gerrymandering cases.  (Indeed, because Roberts, Alito, and Gorsuch so vigorously pressed this line of inquiry, Kennedy’s silence during the exchanges may not be as revealing as one might hope.)

Nonetheless, some interesting areas of consensus arose in the Supreme Court today.  As I argue in an essay published today (with many thanks to the team at the Cardozo Law Review de novo), the Court could go a long way towards improving the clarity, coherency, and consistency of its case law (and enhancing the institutional integrity of the courts and state legislatures) by affirming in Gill v. Whitford and reversing in Harris v. Cooper based on some of today’s rare points of agreement.

Perhaps the most powerful point of agreement came in response to Justice Kennedy’s revival of his hypothetical from Vieth: “Suppose a . . . state statute says all districts shall be designed as closely as possible to conform with traditional principles, but the overriding concern is to . . . have a maximum number of votes for party X or party Y.  What result?”  After even Justice Alito acknowledged that “you cannot have a law that says draw maps to favor one party or the other,” the defendants and intervenors conceded that such a law would be unconstitutional:

MS. MURPHY: I think that that would be better thought of probably as an equal protection violation, but you could think of it . . . as a First Amendment violation in the sense that it is viewpoint discrimination against the individuals who the legislation is saying you have to specifically draw the maps in a way to injure.

MR. TSEYTLIN: A facially discriminatory law in a state would violate the First Amendment because it would stigmatize that party.

These concessions matter because they reflect a broad consensus on a key issue underlying many questions raised today.  Like the not-so-hypothetical facially partisan redistricting criteria adopted by North Carolina in Harris v. Cooper, Kennedy’s statute doesn’t require any showing of effect to be constitutionally troubling.  Rather, by using a facial category, such a law forces states to answer whether partisan advantage is a legitimate government purpose at all.

It is not.

Both the defendants and intervenors attempted to distinguish their case (and turn the tables back on the Court) by contending that the Court’s opinions say that “there will always be partisan intent” in redistricting.  But not only does this mischaracterize the Court’s prior case law, it is not even a coherent response on its own terms: if partisan intent or partisan government purpose is constitutionally legitimate, then the defendants and intervenors should have argued that Justice Kennedy’s hypothetical statute would survive, not fail.

As the district court noted in its opinion, there is a difference between an “intent to act for political purposes” (which the Supreme Court has upheld), and an “intent to make the political system systematically unresponsive to a particular segment of the voters based on their political preference” (which the Supreme Court has not upheld, and which the Court repeatedly condemned in its early redistricting decisions).  If one accepts this distinction between types of intent, many of the objections raised today fall away.

  • Worried about “false positives” from symmetry metrics (from, for example, commission-drawn maps or court-drawn maps)? The absence of invidious partisan intent means that such a claim would fail.  The constitutional problem isn’t that any particular voter in any particular district faces poor odds; the constitutional problem arises when a district is designed to give particular voters poor odds.
  • Worried about explaining the outcome of court cases to the average man or woman on the street? Tell them that the Court overturned a law because the State classified citizens and/or suppressed citizens’ right to vote in an unconstitutional attempt to preordain the victory of state-favored candidates.  Ask the man or woman on the street how they feel about the Court then, and you’re likely to hear one of two responses: “Finally!” or “Wait, legislators were allowed to do that?  How was that ever constitutional?”
  • Worried about the Court’s ability to distinguish between legitimate state interests (such as enhancing competitiveness or pursuing proportionality) and illegitimate state interests (such as maximizing advantage)? Perhaps take a look at racial gerrymandering law, which distinguishes between using race to preserve electoral opportunities (legitimate) and using race to entrench electoral advantages (illegitimate), as Justice Ginsburg reiterated today.

Indeed, in discussing both standing and the merits, the important parallels between racial gerrymandering law and political gerrymandering law were on full display today.  Kennedy’s “overriding concern” language seems uncannily similar to the formulation used in racial sorting case law, and Gorsuch’s supposedly troubling “turmeric standard” goes by a more well-known name in constitutional racial dilution cases: the totality of circumstances.  This standard—like any spice rub—may vary a bit from batch to batch and set-of-facts to set-of-facts.

Nor would following these routine, black-letter principles of constitutional law threaten to plunge the Court headlong into any kind of institutional crisis.  Most of the troubling questions posed today (“Why EG > 7%?”) were premised on the dangers the Court might face under some kind of effects-only standard, which—standing alone—might reasonably seem divorced from the constitutional roots of the violation.  By refocusing on the constitutional illegitimacy of partisan voter suppression (as opposed to partisan voter persuasion), the various effects tests set out by the plaintiffs and the court below need not individually carry so much weight in the analysis.  As with constitutional racial vote dilution cases, the intent element of a claim is where plaintiffs will often flounder—and it is the causal connection of invidious intent to an otherwise permissible redistricting decision or action that makes the resulting effect unconstitutional.

The objection to all of this is, of course, that most or all politicians try to suppress their opponents when redistricting, and so an intent requirement isn’t a realistic barrier to a claim.  But this gets the institutional role of the Court and the progression of history backwards.  The behavior of legislators must evolve to satisfy what the Constitution demands.  The Constitution does not meter its demands to match the Court’s low expectations of legislators.  The Court did not hold racial suppression to be legitimate simply because many officeholders were openly racist and so a dilution claim was “unrealistic.”  The Court stated what the Constitution required, and the floor statements, districting decisions, and legislative conduct evolved to try and avoid the new claims.

Nowadays, many legislators gerrymander (racially and politically) in order to achieve partisan ends.  To claim that this is the natural and unavoidable state of affairs is to ignore the Court’s own role in shaping that state of affairs and the Court’s duty to prevent the rampant and open violation of voters’ constitutional rights.

Would recognizing the illegitimacy of invidious partisan intent eliminate all legislative attempts to pursue electoral advantages?  Of course not.  But one need not indulge Pollyannaish notions about the limits of judicial intervention to believe that political claims would—like racial claims—mitigate the frequency, cultural acceptance, and impact of such odious behavior.  “[E]ven legislators unarmed with political data and mapping software will have an instinctual sense of where their support lies and may be tempted to nudge boundaries in their favor.”  Proof of intent and effect may be difficult to cobble together in such instances, and minor transgressions are likely to go undetected and unvindicated.  But in such a world, the mere existence of a constitutional claim still acts as its own constraint on unlawful legislative behavior, forcing legislators to justify their decisions to the public on neutral and legitimate bases and encouraging legislative majorities to avoid overreaching for fear of losing in court.

This may seem like new territory, but the basic constitutional principles found in racial gerrymandering law apply with equal force in the case now pending before the Court.  Waiting on just the other side of Kennedy’s hypothetical is a clear logical progression: invidious partisan intent is unconstitutional; legislators here acted with such invidious intent; and voters’ ability-to-elect was negatively impacted because of the government’s targeting for suppression.

A new claim (or claims) might result in a fair number of plans being struck down initially as legislators adapt to new norms and expectations, but once the state of the law is settled the explanation for “the intelligent man on the street” becomes simple.  No gobbledygook, no baloney, and only a touch of turmeric.  That’s an outcome that would be good for voters and the Court’s reputation.

Courting Kennedy

As oral argument in Gill v. Whitford nears, everyone’s eyes are on Justice Kennedy.  Rick Hasen and Ned Foley have pointed out important issues and questions that may bear on the outcome.  With Hasen’s caveat that “I don’t think anyone outside the Court can know just yet [what Justice Kennedy is going to do],” I nonetheless offer one final bit of speculation.  Justice Kennedy seems to be looking for two interrelated explanations:

(1) why the claim presents a sound constitutional basis for intervention; and

(2) how that intervention doesn’t exceed the Court’s role in the separation of powers and federal design.

Despite heavy focus on the first question, giving Justice Kennedy a good answer to the second question may be just as important.  Justice Kennedy has repeatedly expressed concerns about the institutional role of the Court in both racial and political gerrymandering cases.  For racial gerrymandering, consider Miller: “Federal-court review of districting legislation represents a serious intrusion on the most vital of local functions. . . . [Courts] must be sensitive to the complex interplay of forces that enter a legislature’s redistricting calculus.”  For political gerrymandering, consider Vieth: “A decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process. The Court is correct to refrain from directing this substantial intrusion into the Nation’s political life.”

More recently, there’s Cooper, where Justice Kennedy joined Justice Alito’s dissent.  How did Justice Kagan lose Kennedy’s vote?  I suspect Kennedy protested the elimination of the alternative-map requirement.  Justice Kagan pointed out that “in no area of our equal protection law have we forced plaintiffs to submit one particular form of proof to prevail.”  But for all its constitutional shortcomings, the alternative-map requirement did provide a prudential buffer.  This was the centerpiece of Justice Alito’s attack:  “The alternative-map requirement . . . is a logical response to the difficult problem of distinguishing between race and political motivations when race and political party preference closely correlate.  This is a problem with serious institutional and federalism implications.”

In an especially foreboding pair of sentences, Alito wrote (and Kennedy agreed) that “if a court mistakes a political gerrymander for a racial gerrymander, it illegitimately invades a traditional domain of state authority, usurping the role of a State’s elected representatives.  This does violence to both the proper role of the Judiciary and the powers reserved to the States under the Constitution.”

Kennedy is occasionally portrayed as a Justice who wants to intervene and is merely waiting for an acceptable standard.  Instead, perhaps we should view Kennedy as a Justice who is reluctant to intervene but could be compelled if a sufficiently persuasive rationale is identified.  In this telling, the answer to question (2) becomes more important.

Justice Kennedy is not alone in assuming that judicial involvement may exceed the Court’s proper role.  But as I note in a forthcoming essay [now published in the Cardozo Law Review de•novo], this assumption overlooks an important institutional point from none other than Justice Kennedy himself: “Abdication of responsibility is not part of the constitutional design.”  Clinton v. City of New York.  If the Constitution is violated, the Court has an important institutional role to play.  By failing to play its role, the Court has created a severe distortion of redistricting doctrine and caused immense harm to our constitutional system over the last few decades.

Nor should the defendants be permitted to hide behind arguments made in the name of federalism.  The Constitution’s federal structure was designed to prevent tyranny, safeguard liberty, and ensure that “state governments remain responsive to the local electorate’s preferences [and] state officials remain accountable to the people.”  New York v. United States.  Intervention would enhance responsiveness and accountability and protect federalism’s critical role in the constitutional design.  In weighing the deference owed state legislatures, “a vital constitutional principle must not be forgotten: Liberty requires accountability.”  Dep’t of Transp. v. Ass’n of Am. R.R. (Alito, J., concurring).

Two particular features of the plaintiffs’ claim help address questions (1) and (2) above and could nudge Justice Kennedy towards favoring intervention at the end of the day.

First, the district court opinion distinguished between routine political intent and invidious partisan intent.  Michael Kang, Justin Levitt, and I have argued that this distinction should be the primary focus of any partisan gerrymandering claim.  (To build upon the boxing analogy of Dr. Grofman and Dr. King, even an extreme knockout punch is permitted if it’s clean, but attempting to bite off an opponent’s ear is another story.  It wouldn’t help to argue that you only bit off a small piece of ear.)

While the effects inquiry is the undisputed star of the show in Gill (and the Gill claim requires a more rigorous effects showing), the intent distinction in Gill is still critical because it helps provide the Justices more coherent conceptual categories and helps provide a stronger constitutional justification for judicial intervention.  There is an obvious difference between the intent to beat your opponent by appealing to voters and the intent to beat your opponent by suppressing voters.  By reemphasizing just how out of sync invidious partisan intent (or, for Kang, partisan government purpose) is with the rest of the Court’s jurisprudence, the plaintiffs may be able to move Kennedy from a sense of reluctance to a sense of obligation.

Second, the plaintiffs’ approach only draws durable gerrymanders into question.  If one accepts the premise that only “extreme” gerrymanders are unconstitutional, this is a reasonable place to call foul.  Like the intent distinction above, a durability threshold sounds more in categories of harm (durable or not durable) than degrees of harm (more or less dilutive).

Even if one believes that gerrymanders do not need to be durable to be unlawful as a matter of constitutional theory, however, the effects requirement may still prove useful on Tuesday.  For if the aim is courting Kennedy—and the answer to question (2) ends up holding the balance—then an extra prudential buffer may be just what the Justice is looking for.

 

Cooper v. Harris: Proxy Battles & Partisan War

Those fighting for a more inclusive and representative democracy would do well to look past the headlines about this term’s election law cases.  A sobering trend seems to be unfolding: a good result splashes across the news—monster voter suppression law dies!—only to be replaced with a slow realization that the retreat may be less of a rout and more of a retrenchment.

So it may be with yesterday’s decision in Cooper v. Harris.  The Twitter-sized takeaway is a mixed bag: Good short-term result and good clarification of the law on “race-as-a-proxy-for-politics”; bad dicta on partisan advantage and bad signaling for future partisan gerrymandering cases based on Kennedy’s place among the dissenters.

The cause for caution is that this trade-off (more clarity on proxies, less clarity on partisanship) provides helpful tools for fighting yesterday’s proxy battles but may not help bring the larger partisan war to a close.  The racially gerrymandered map at issue in yesterday’s case, for example, was replaced by the North Carolina legislature with a partisan gerrymandered map over a year ago.  Unless the Court takes a strong stand on partisan gerrymandering next term, meaningful racial and political representation will remain at risk.

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Is Bethune-Hill a Major Voting Rights Victory or the Next Northwest Austin?

On March 1st, the Supreme Court issued its decision in Bethune-Hill.[1] While the Court’s decision to remand eleven of the twelve Virginia legislative districts wasn’t too surprising given Kennedy’s skeptical tone at oral argument, what was surprising was the virtually unanimous acclaim from the election law community.[2] Taking a page from Stephen Colbert, the only question seemed to be whether Bethune was a great decision or the greatest decision.

As Marc Elias and Rick Pildes pointed out, the holding that race and traditional criteria need not conflict to find predominance in racial sorting cases resolved a question with major implications for litigants in the field. This will make the standard easier to satisfy and undoubtedly lead to more cases.   Michael Dorf called it a “surprisingly liberal 7-1 result,” and Elias described it as a “7-1” victory before stating that it was “[a]ctually, more like 8-0.”

But this superficial consensus among the Justices should give pause to those who care about the survival of the Voting Rights Act (VRA). The sorting claim was developed by opponents of the VRA as a weapon to cut down districts designed to protect minority voting power. Only recently have voting rights lawyers begun to wield this weapon for their own purpose: striking down districts that pack minority voters based on the pretext of “complying” with the VRA. At the end of the day, the claim remains a weapon that can be used to advance or undermine the VRA, and Bethune has sharpened the knife for both sides.

Perhaps the most revealing sign of these crosscutting currents was Chief Justice Roberts’ presence in the majority. Roberts has long opposed Section 2’s results test and previously subscribed to the views of Justices Alito and Thomas regarding predominance, agreeing with Justice Scalia in LULAC that the intentional creation of a majority-minority district alone necessarily triggers strict scrutiny. So why the change? One explanation might be that the Chief Justice is building an illusion of consensus similar to that found in Northwest Austin ahead of a more sweeping and controversial decision yet to come.[3]

With more redistricting litigation ahead, the key to preserving the VRA will be handling the Bethune holding with care. Below I examine the good, the bad, and the ugly about Bethune and offer some thoughts on how it might be used to help enforce the VRA and fend off challenges to the VRA rather than inviting its demise.[4]

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“FairVote and Leading Maine Civic Groups File Briefs Defending Ranked Choice Voting”

The fight for Ranked Choice Voting (RCV) in Maine continues!  Proud to have worked with FairVote on this brief.

With all the recent news on redistricting (which will be addressed in a couple of forthcoming posts), it’s important not to overlook the significant headway that RCV is making across the nation.  As FairVote points out, “[t]here are now 18 states with bills advancing ranked choice voting.”  In fact, the Utah House just today voted 59-12 to pass a bipartisan bill that would require the use of ranked choice voting for nearly all Utah elections.

Want to know more about how Ranked Choice Voting can improve our elections?  Head on over to FairVote to find out… and then take action!

Basis, Intent, and the Blood Sport Republic: A Voting Rights Framework for a Constitutional Democracy

This weekend, William & Mary will host an impressive symposium with the daunting task of “lay[ing] a definitive academic foundation” for redistricting law ahead of the 2020 census. The topic could not be more pressing. The Supreme Court continues to consider Bethune-Hill[1] and McCrory, is holding Covington and Harris[2] in limbo pending those decisions, and will almost assuredly see the historic Whitford case land on its doorstep soon. In a weekend that is sure to reveal a number of disagreements on critical questions, perhaps all attendees can agree on one thing: “The most charitable thing to say about the current state of . . . gerrymandering law is that it is a big mess.

Yet, in the background of almost every major debate lingers a conceptual distinction that could help strike consensus across a range of issues: the distinction between “intent” and “basis.” Intent asks: “Why this district?” Basis asks: “Why this person?”

The concepts intersect on the margins, but each plays a unique and distinct role in the “dilution v. sorting” question, the “race v. party” question, and the balance of powers question, among others. Moreover, the importance of this distinction goes beyond redistricting law—it could play a key role in forming a more coherent, simple, and rigorous voting rights framework at a time when it could not be more critical.

In the field of redistricting law, this distinction makes it possible to reduce a complex body of law into a relatively simple table (assuming the Court is willing to adopt both a political dilution claim and a political sorting claim, as I have advocated and as would address the concerns of the Whitford dissent).[3]  [UPDATE: Aspects of this table have been eclipsed by more recent developments in the law.]

Redistricting
  Racial Dilution (Statutory) Racial Dilution Political Dilution Racial Sorting Political Sorting
Authority[4] VRA & 15th 14th 1st and/or 14th (Whitford) 14th 1st and/or 14th
Intent

(“Why this district?”)

No showing required

Device may violate VRA despite having political purpose

Device enacted or maintained “to minimize or cancel out the voting potential of racial or ethnic minorities” (Bolden) Device enacted or maintained to “to minimize or eliminate the political strength of any group or party” (Gaffney; Bandemer (citing Bolden)), or

“to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation” (Whitford)

No showing required, but relevant evidence to predominance/basis and state showing of tailored justification

Political objective does not change racial basis of sort. (Bethune)

No showing required, but relevant evidence to predominance/basis and state showing of tailored justification
Basis[5]

(“Why this person?”)

Evidence of racial basis may favor causation finding, if legally necessary[6] No showing required; but relevant to proving intent No showing required, but relevant to proving intent “State has [predominantly] used race as a basis for separating voters into districts.” Miller

(i.e., racial basis subordinates in fact (Bethune))

Burden shifts on showing of predominant basis (Miller, Bethune)

State has predominantly used political data as a basis for separating voters into districts (i.e., political basis subordinates in fact (Bethune))

Burden shifts on showing of predominant basis (Bethune)

Effect (Preconditions) Gingles Test (threshold showing that device can impair equal ability to elect)

No strict threshold for finding legally significant polarization (Gingles)

Gingles Test

See Martinez, 234 F. Supp. 2d 1275 (applying Gingles)

No strict threshold for finding legally significant polarization (Gingles)

“Modified Gingles” Test (threshold showing could be Whitford efficiency gap, Sam Wang’s approach, Bernie Grofman’s factors, etc.)

No strict threshold is necessary

N/A N/A
Effect (Liability) Totality of Circumstances Totality of Circumstances

Burden shifts if plaintiff makes prima facie case (Arlington Heights)

Totality of Circumstances

Efficiency gap is weighty evidence, but not dispositive (Whitford)

Burden shifts if plaintiff makes prima facie case (Whitford)[7]

No showing required

(Expressive and representational harms implied when predominant basis is race)

No showing required

(Expressive and representational harms implied when predominant basis is politics)

State Justifications (Permissible)[8]

See generally, Parsons.

Protect Minority Ability to Elect; Prevent Dilution (City of Rome) Protect Minority Ability to Elect; Prevent Dilution (City of Rome) Competitiveness, Proportionality, Incumbency Pairing Prevention, etc. (Gaffney, Cromartie, Karcher, Bush, LULAC) Protect Minority Ability to Elect; Prevent Dilution (City of Rome) Competitiveness, Proportionality, Incumbency Pairing Prevention, etc. (Gaffney, Cromartie, Karcher, Bush, LULAC)
State Justifications (Impermissible)[9]

See generally, Parsons.

Racial, Partisan, or Incumbency Advantage (Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune) Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

Below, I explain the basis/intent distinction further, how it resolves a number of redistricting law issues, and how it plays a critical role in preserving foundational principles of constitutional law in our democracy.

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