The Prison Gerrymandering Project crunches the numbers, and finds that even with the delayed census data this cycle, most of the states that sought to count incarcerated individuals at their home address rather than the prison address managed to get clean addresses that did the job.
Category Archives: redistricting
“New York Redistricting: What Happened and Where Are We Going?”
Jeff Wice and Piper Benedict go
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on the dysfunction in this round of redistricting in New York.
There’s little question about the need for adjustment/clarification of the process. And also, reform of the legislative redistricting process in a state without a citizens’ initiative has to go through legislative gatekeepers. Advocates will have to watch carefully to make sure that one step forward doesn’t come attached to two steps back.
Supreme Court Asks for US Government’s Views on North Dakota Racial Gerrymandering/Voting Rights Act Case
Order list and jurisdictional statement.
Surprise! A brief from Alabama for 13 states would go much further in attempting to dismantle the Voting Rights Act as applied to redistricting.
The request to hear from the Solicitor General means this case likely won’t be considered to be set for argument until 2025.
“Supreme Court sends dispute over Arkansas’ GOP-drawn congressional map back to lower court”
The Supreme Court on Monday told a lower court to take a fresh look at claims alleging that Republican-drawn congressional districts in Arkansas sought to minimize the influence of Black voters.
The justices threw out a May 2023 ruling by a panel of three federal judges that left in place the state’s congressional district map. All four districts are held by Republicans.
The Supreme Court said the lower court should review the case again in light of the justices’ ruling last month in a similar case from South Carolina in which Republican-drawn districts were left in place.
The lower court had concluded that the plaintiffs, Black voters and politicians, had failed to “create a plausible inference” that race was the predominant consideration when the new map was drawn.
“This Supreme Court ruling is a ‘get-out-of-jail’ card for racial discrimination”
The Supreme Court’s conservative supermajority made it much easier last week to attack the political power of the nation’s growing communities of color. The high court’s attacking voting rights isn’t new. But the latest blow, in a 6-3 opinion written by Justice Samuel Alito in a South Carolina case, is especially breathtaking and cynical because it creates a sweeping partisanship safe harbor for states that want to gerrymander communities of color out of power. Racially gerrymandered map? No, not us. We were just discriminating against Democrats who just happen to be Black (or Latino or Asian)….
Before Alexander, voters of color in racial gerrymandering cases had to show merely that race had predominated in map drawers’ decision-making. After Alexander, if states defend maps on the grounds that “it was just politics,” which they will do now in every case, Justice Alito’s opinion imposes an additional head-spinning hurdle. Voters of color must now also show that it would have been possible to pull off a state’s partisan gerrymander by targeting white voters.
This is likely to be a train wreck for communities of color.
“Commentary: ‘Good faith’? Not in the SC Legislature and not on the US Supreme Court”
Vernon Burton and Armand Derfner:
Of all the defects in last week’s decision upholding South Carolina’s gerrymandered 1st Congressional District, none is more depressing than the U.S. Supreme Court’s debasement of the term “good faith.” As The Post and Courier reported, a 6-3 majority of the court reversed because the lower court in Charleston “did not credit the South Carolina Legislature with a presumption of good faith.” The words “good faith” are the heart of the Supreme Court’s decision, repeated 12 times in the majority opinion.
But what does “good faith” mean? In ordinary English and legal terminology, “good faith” means “honesty,” “integrity” and “fair dealing.”
That is exactly what gerrymandering is not. Gerrymandering is manipulating the drawing of election district lines to give your team — usually your political party — an unfair advantage. It is done all the time, but being commonplace does not make it right. The Supreme Court has agreed. In a landmark case a few years ago, the court (led, then as now, by Chief Justice John Roberts) unanimously condemned the practice. Roberts’ opinion said gerrymandering cannot be condoned and is “unjust” and “incompatible with democratic principles.” Ordinary Americans would call it “dishonest” and “crooked.”
In that decision, the court also said partisan gerrymandering is “non-justiciable,” a legal word meaning that federal courts cannot hear lawsuits about partisan gerrymandering because there are no judicial standards for deciding such cases. The court did not say a partisan gerrymander is “constitutional,” just that it is outside the jurisdiction of federal courts to rule on, pro or con.
There was not a single word in that opinion about a legislature’s “good faith” in gerrymandering. How could there be, in an opinion that simply said partisan gerrymanders are outside the court system, no matter how evil they are?,,,
The long shadow of the Elections Clause
Rucho v. Common Cause and Alexander v. South Carolina State Conference of the NAACP both involved congressional redistricting. Each took place, ostensibly, under Article I, Section 4, Clause 1 of the Constitution, the Elections Clause.
From Rucho, “Congress has regularly exercised its Elections Clause power, including to address partisan gerrymandering.” Later, “The only provision in the Constitution that specifically addresses the matter assigns it to the political branches.” And elsewhere, “As noted, the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause,” and, “We simply note that the avenue for reform established by the Framers, and used by Congress in the past, remains open.” Those quotations are just a few of the mentions of the Elections Clause.
In Alexander, the majority opinion begins, “Redistricting constitutes a traditional domain of state legislative authority. See Moore v. Harper, 600 U. S. 1 (2023); see also U. S. Const., Art. I, §4, cl. 1.” (Justice Thomas’s concurring opinion dedicates several pages to the Elections Clause–more on that for a later post.)
Of some interest is framing these cases as an Elections Clause issue to start. One would assume that if a challenger showed up in federal court with a partisan gerrymandering or state gerrymandering challenge to a state legislative map, county commission map, or local school board map, one would reach the same result. But there wouldn’t be the Elections Clause framing, which helps the Court ensure that state legislatures have primary responsibility alongside Congress, and the federal courts (by implication) are left out of the process. Each time the Court takes a federal congressional case as a vehicle to address an issue of election that that likely is meant to have broader applicability, and each time it uses the Elections Clause as a partial justification for the result it reaches, the Elections Clause casts a much longer shadow over election law that one might otherwise anticipate.
Breaking and Analysis: Justice Alito for Republican Justices, over the Dissent of Democratic Justices, Rewrites Racial Gerrymandering Standards to Help White Republican States
[This post has been edited and updated.]
In a 6-3 decision authored by Justice Alito, the Supreme Court has reversed a lower court ruling holding that South Carolina’s congressional map was a racial gerrymandering. Justice Thomas concurred, and Justice Kagan, for the three liberal justices dissented. The majority did something rare: it rejected the factual findings of the lower court, something the Court only is supposed to do when those lower court findings are clearly erroneous.
This area of the law is unduly complex, so let me begin with a bottom line practical assessment of today’s case before wading into the weeds: Justice Alito for a court majority has once again come up with a legal framework that makes it easier for Republican states to engage in redistricting to help white Republicans maximize their political power. He did so by reversing the burden of proof that should apply in these cases in two ways to favor these states: pushing a “presumption of good faith” and raising the evidentiary burdens for those challenging the maps.
Once upon a time racial gerrymandering claims were brought by white Republicans in the South to stop the creation of more districts in which minority voters could elect candidates of their choice. The US Department of Justice was essentially forcing the states to draw these districts under DOJ’s interpretation of the Voting Rights Act. The new racial gerrrymandering cause of action, first recognized in Shaw v. Reno, made this harder to do. As the cause of action under the Equal Protection Clause of the 14th Amendment emerged, it required proof that race was the predominant factor in drawing district lines, and that there was no compelling reason, such as complying with the Voting Rights Act to do so. I was (and remain) very critical of this cause of action, because the harm is not a real one about vote dilution, but an “expressive” one that the state purportedly sends by dividing voters on the basis of race without adequate justification.
Once DOJ stopped forcing Southern states to draw more of these districts, these racial gerrymandering cases sort of disappeared. They reemerged about a decade ago when a bunch of southern states sought to pack and crack black voters in districts to maximize white Republican voting power in the South. Sometimes these states did so in a way that violated the anti-vote dilution provisions of the Voting Rights Act. But the standards (Section 2/Gingles) are hard for plaintiffs to prove, and so when there was some vote dilution but not enough to make a VRA claim, black and Latino voters started bringing racial gerrymandering cases. And they won a bunch, including in Alabama, Virginia, and North Carolina.
By this decade, the racial gerrymandering cause of action had been repackaged as what Paul Clement once called “junior varsity” vote dilution claims. That is, they were not claims in which plaintiffs could prove VRA liability, but instead ones where it was enough to show lots of race consciousness in drawing district lines, in ways that hurt minority interests.
So it is not surprising that Justice Alito, one of the Justices most hostile to minority voting rights and voting rights claims more generally, pushed back. He dissented in Cooper v. Harris, a racial gerrymandering case written for the Court by Justice Kagan, and today, he’s turned his Cooper dissent standard into a majority opinion.
The specific question in both cases is how do you deal with a situation where race and party are highly correlated and where partisan gerrymandering is allowed and racial gerrymandering is not. I’ve written about this issue extensively in the Harvard Law Review Forum and William and Mary Law Review and Alabama Law Review and ACS Supreme Court Review. Trial courts must decide if race or party predominates, and that decision is subject to clear error review. (I believe that such an exercise is essentially impossible, but this is what courts have done for decades.)
As Justice Kagan explains in her dissent, J. Alito has turned things upside down when it comes to clear error review. Rather than defer heavily to the factual findings of the court, Justice Alito doubles down on the “presumption of good faith” that he gives the states when it comes to redistricting. It’s a huge thumb on the scale, especially when coupled with the blessing he gives to partisan gerrymandering, which goes MUCH farther than the Court did in Rucho (which was more agnostic about the practice). Second, he says that without smoking gun evidence where legislators are talking about racial quotas or targets, plaintiffs need to produce “alternative maps” where there is the same partisan benefits of the map but “greater racial balance.” This of course is hard to do when race and party are so correlated.
Bottom line: now that these racial gerrymandering cases have been used to help minority plaintiffs, Justice Alito is ready to shut them down.
(There’s much to say about Justice Thomas’s concurrence too, which would hold that both racial gerrymandering and vote dilution claims are nonjusticiable. But that will have to await future posts.)
“Minnesota ends prison gerrymandering”
Prison Gerrymandering Project:
On Friday, Minnesota Governor Tim Walz signed HF 4772 — an omnibus elections policy bill — into law, officially ending prison gerrymandering in the state. With this action, Minnesota joins the rapidly growing list of states that have taken action on this issue. The measure requires state and local governments to count incarcerated people at their home addresses when drawing new political districts during their redistricting process.
Prison gerrymandering is a problem created because the Census Bureau incorrectly counts incarcerated people as residents of their prison cells rather than their home communities. As a result, when states use Census data to draw new state or local districts, they inadvertently give residents of districts with prisons greater political clout than all other state residents….
Supreme Court briefing complete on appeal of North Dakota redistricting case
Walen v. Burgum was decided before a three-judge panel and is on appeal to the Supreme Court. It involves the interaction of the Equal Protection Clause and racial gerrymandering with Section 2 of the Voting Rights Act in the drawing of majority-Native American districts in North Dakota. The district court found the maps were permissible. Of some note, an amicus brief some several states led by Alabama support the appeal here. And Cooper and Kirk (the law firm that represented the North Carolina legislators in Moore v. Harper) is representing North Dakota here. Briefing is now complete. If the Court takes the appeal, it will likely be on the docket for argument in the late fall. For more on the case, here’s All About Redistricting on it.
“The Roadmap for Fair Reports in 2030: A Summary of the 2023 National Citizen Redistricting Commissioners Conference”
Breaking: Three Judge Court, Breaking Along Party Lines, Says Louisiana Impermissibly Created a Second Black Congressional District, Orders Hearing on Remedy
Faced with a likely successful lawsuit by minority plaintiffs under Section 2 of the Voting Rights Act, the Louisiana legislature drew a second black majority congressional district. After the districts were drawn, those who did not like Louisiana having a second black majority district challenged it as an unconstitutional racial gerrymander under the 14th Amendment’s equal protection clause. Such a claim requires proof that race was the predominant factor in drawing district lines and that doing so was not required by a compelling state interest.
The majority opinion, by two Trump appointees, found that race predominated and that Section 2 of the Voting Rights Act did not justify drawing the district. A Bill Clinon appointee dissented, holding that race was not the predominant factor and in any case drawing the second district was required by Section 2 of the VRA.
There will now be a hearing on the remedy. Once that remedy is approved by a court majority, there will be the question whether, under the Purcell Principle, it is too late to see the use of these new districts in the 2024 elections.
Expect this to end up at the Supreme Court on the shadow docket.
“Fierce Races Loom With Wisconsin’s New Political Maps”
The state’s residents have long been a close mix of Democrats and Republicans, which makes Wisconsin a crucial swing state in presidential elections and means statewide races are often fiercely contested. The reshaping of the maps is expected to suddenly return many legislative races to the realm of true competition as well.
After more than a decade of languishing in the minority in the State Legislature, Democrats are now in a position to vie for political power with the Republicans, who currently hold about two-thirds of the seats in both the Senate and the Assembly.
“We are on offense,” said Representative Greta Neubauer, a Democrat and the minority leader of the State Assembly. “We absolutely see a path to the majority.”
The new maps — ordered by the Wisconsin Supreme Court in December after finding the previous ones unconstitutional — reflect a near-split between Democratic- and Republican-leaning districts: 45 are Democratic-leaning, 46 are Republican-leaning, and eight are likely to be a tossup.
Democrats would need to flip 15 seats to gain a majority in the Assembly, though they do not view the State Senate — whose elections are staggered — as within reach this year.
“Supreme Court Rejects Bid to Revive Washington State Voting Map Said to Hurt Hispanics”
The Supreme Court refused on Tuesday to reinstate a voting map for the Washington State Legislature that a federal judge had found discriminated against Hispanic voters.
As is the court’s custom when it acts on emergency applications, its brief order gave no reasons. There were no noted dissents.
The case arose from a lawsuit by Hispanic voters who challenged a voting district in the Yakima Valley region that had been drawn by the state’s independent redistricting commission after the 2020 census. The plaintiffs said the district violated the Voting Rights Act by diluting their ability to elect their preferred candidates.
The case had some unusual features, notably that a majority of the challenged district’s voting age population was Hispanic…..