Yesterday I introduced the concept of spatial diversity—the variation of a factor over geographic space—and outlined its negative implications for participation, representation, and competition. Today I’ll discuss the role that the concept has played in the Supreme Court’s election law doctrine. My claim is that the Court has been consistently hostile to districts that are highly spatially diverse, across domains including political gerrymandering, racial vote dilution, and racial gerrymandering.
Starting with political gerrymandering, while the Court as a whole does not currently endorse any particular test, individual Justices have frequently seen spatially diverse districts as red flags that partisan shenanigans were afoot (and urged their invalidation). This approach has never been rejected by the Court, and is thus one of its few remaining options for curbing the partisan manipulation of the district-drawing process.
In the 1983 case of Karcher v. Daggett, for example, Justice Stevens was particularly alarmed by a New Jersey district that “stretch[ed] from the New York suburbs to the rural upper reaches of the Delaware River,” as well as by another district that traced “a curving partisan path through industrial Elizabeth, liberal, academic Princeton, and largely Jewish Marlboro.” Justice Powell added that “[a] legislator cannot represent his constituents properly—nor can voters . . . exercise the ballot intelligently” in such heterogeneous districts (all the product of a pro-Democratic gerrymander).
Similarly, in the 1986 case of Davis v. Bandemer, Justice Powell condemned a series of spatially diverse Indiana districts: one that joined “residents of downtown Fort Wayne” with “Allen and Noble County farmers,” another that merged “blacks in Washington Township and white suburbanites in Hamilton and Boone Counties,” and still another that fused “the urban southwestside” of Indianapolis with the city’s western and northern suburbs. Justice Powell saw the geographic composition of these districts as evidence of a pro-Republican gerrymander, while also bemoaning their negative consequences for democratic self-government.
Next, in the racial vote dilution context, the Court’s governing standard asks (among other things) whether a minority group is “geographically compact” and “politically cohesive.” If so, the group may be entitled to a district in which it can elect the representative of its choice; if not, the group has no such entitlement. In the 2006 case of LULAC v. Perry, the Court explained that these prongs can be satisfied only by a spatially homogeneous minority population. The Court first held that Hispanics along the Texan border warranted their own district because they were “in close geographic proximity” and “there has been no contention that different pockets of the Latino population . . . have divergent needs and interests.” It was thus unlawful when the state broke up the district that had formerly housed the group.
The Court then emphatically rejected a remedial district, proposed by the state, that joined dissimilar Hispanic communities in Austin and along the Rio Grande. According to the Court, “a district that combines two farflung segments of a racial group with disparate interests” cannot remedy a violation of the Voting Rights Act. In LULAC, the spatial homogeneity of the minority population therefore became a prerequisite for both establishing and curing vote dilution.
Finally, in the realm of racial gerrymandering, the Court has treated the geographic variation of the minority population as a clue for determining whether race predominated over all other districting factors. If the minority members of a district are highly spatially heterogeneous, then race likely was the predominant factor, and vice versa. In the 1995 case of Miller v. Johnson, for instance, the Court struck down a majority-black Georgia district that “connect[ed] the black neighborhoods of metropolitan Atlanta and the poor black populace of coastal Chatham County.” Only race could have explained the merger of these distinct black communities, which had “absolutely nothing to do with each other” and exhibited “fractured political, social, and economic interests.”
Conversely, in the 1997 case of Lawyer v. Department of Justice, the Court upheld a Tampa Bay district that “comprise[d] a predominantly urban, low-income population . . . whose white and black members alike share a similarly depressed economic condition.” The minority residents were united not only by their race but also by their city residence and socioeconomic status, and the district was therefore lawful.
Of course, the Court based all of these decisions on qualitative assessments of spatial diversity. Starting tomorrow, I’ll explain how the concept can be quantified and then used to add some data-driven rigor to the Court’s analysis.