Category Archives: redistricting

“Mississippi can wait to reset legislative districts that dilute Black voting strength, judges say”

AP, on yesterday’s order in Mississippi State Conference of NAACP v. State Board of Election Commissioners:

Mississippi can wait until next year to redraw some of its legislative districts to replace ones where Black voting power is currently diluted, three federal judges said Thursday.

The decision updates a timeline from the judges, who issued a ruling July 2 that found problems with districts in three parts of the state — a ruling that will require multiple House and Senate districts to be reconfigured. The judges originally said they wanted new districts set before the regular legislative session begins in January.

Their decision Thursday means Mississippi will not hold special legislative elections this November on the same day as the presidential election. It also means current legislators are likely to serve half of the four-year term in districts where the judges found that Black voters’ voices are diminished.

More on this story from Mississippi Today.

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“Growing number of US states target ‘prison gerrymandering’”

Reuters reports that more than a dozen states and 200 localities have moved to end or change the practice of counting people where they’re incarcerated instead of where they’re from: “The Prison Policy Initiative (PPI), which has closely tracked and worked on the issue for decades, estimates that roughly half of the US population now lives in a city, county, or state that has moved to end or restrict prison gerrymandering.”

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Utah Supreme Court Rules for League of Women Voters in Case to Reinstate Nonpartisan Redistricting Initiative

Here’s the opinion in League of Women Voters v. Utah State Legislature (h/t Ballot Access News). A key excerpt:

The novel question before us asks: what happens when Utahns use their initiative power to exercise their “right to alter or reform their government” by passing an initiative that contains government reforms, and the Legislature repeals it and replaces it with another law that eliminates the reforms the people voted for? . . . .

[W]e hold that when Utahns exercise their right to reform the government through a citizen initiative, their exercise of these rights is protected from government infringement. This means that government-reform initiatives are constitutionally protected from unfettered legislative amendment, repeal, or replacement. Although the Legislature has authority to amend or repeal statutes, it is well settled that legislative action cannot unduly infringe or restrain the exercise of constitutional rights. Consequently, when Utahns exercise their right to reform the government through an initiative, this limits the Legislature’s authority to amend or repeal the initiative. . . .

In this case, Plaintiffs claim. . . that Utahns used their initiative power as a means of exercising their right to reform the government when they passed Proposition 4. And they claim that the Legislature violated those rights when it enacted S.B. 200, which repealed Proposition 4 and replaced it with a new law that nullified Proposition 4’s key provisions. The Legislature’s general legislative power to amend, repeal, and enact statutes does not defeat this claim as a matter of law.

Update: The AP has this story, with more background on yesterday’s decision.

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Redistricting Reform in Colorado

From Princeton’s Innovations for Successful Societies, this report by Al Vanderlipp. Here’s the abstract:

In Colorado, as in most US states, politicians long controlled the process of drawing federal- and state-level legislative districts and manipulated district boundaries to secure political advantage. Dismayed by the tug-of-war that the process unleashed during the 2001 and 2011 redistricting cycles, in March 2015 a bipartisan group of former legislators assembled a coalition to promote adoption of an independent citizen redistricting commission. The coalition could pursue two routes to enactment: either it could get its proposal onto the ballot through Colorado’s citizen initiative process, or it could try to win support in both chambers of the state legislature. Both routes were difficult, and success depended on offering a model that would appeal to political heavyweights, advocacy groups, both major parties, and a growing contingent of politically independent voters. The Democratic Party was all but certain to control the next redistricting process, and it would not give up that advantage without a fight. To succeed, Fair Districts Colorado would have to cooperate and compromise with the party’s progressive wing. After collaborating with progressives to create a shared proposal and after launching a statewide communications campaign, well-connected coalition members were able to convince all members of both of the legislative chambers to put two constitutional amendments for an independent redistricting process in front of voters, who approved them in a landslide in 2018. In 2021, the inaugural Colorado Independent Congressional and Legislative Redistricting Commissions convened and created maps that scored well on metrics of competitiveness and representation despite having to work under challenging time constraints as well as pandemic-related logistical complications.

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“This House race reflects how the Supreme Court has narrowed options for Black voters”

Patrick Marley of WaPo has this piece on South Carolina’s 1st CD. An excerpt:

This spring, the Supreme Court signed off on district lines in South Carolina that Republican state lawmakers said they had designed to benefit their party. The 1st District, held for the last four years by Rep. Nancy Mace (R), had previously been competitive but is now ranked solidly Republican by the nonpartisan Cook Political Report after the redrawn lines placed more Republican voters in the district and ensured the share of Black voters would not rise, staying at 17 percent.

A federal three-judge panel last year found that the district lines represented an unconstitutional racial gerrymander that “exiled” to a neighboring district tens of thousands of Black voters who overwhelmingly vote for Democrats. But Justice Samuel A. Alito Jr., writing in Mayfor a six-justice Supreme Court majority consisting entirely of GOP nominees, contended there was little evidence that South Carolina lawmakers had focused on race as they drew lines to maximize a Republican edge. . . .

In South Carolina, the ruling effectively locked in a 6-to-1 House advantage for the GOP in a state that Donald Trump won in 2020 with 55 percent of the vote. The lone Democrat, Rep. James E. Clyburn, is also the only Black South Carolina House member, and his district is the only one in the state with a plurality Black population. Statewide, just over a quarter of the population is African American.

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“New York Redistricting: What Happened and Where Are We Going?”

Jeff Wice and Piper Benedict go
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.

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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.

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“Supreme Court sends dispute over Arkansas’ GOP-drawn congressional map back to lower court”

NBC News:

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.

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“This Supreme Court ruling is a ‘get-out-of-jail’ card for racial discrimination”

Michael Li oped:

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.

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“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?,,,

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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.

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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.)

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