Category Archives: redistricting

In 2004 Partisan Gerrymandering Case, Justice Scalia Originally Had a Majority with J. Kennedy Joining, and J. Souter Was Going to Concur in the Judgment Not Dissent

I did not have time when I was at the Library of Congress looking at Justice Stevens’ papers to give a close read to the file in Vieth v. Jubelirer, a 2004 partisan gerrymandering case. In that case, four Justices, led by Justice Scalia, took the view that such claims were not justiciable (that is, could not be heard) in federal courts. [This is the position that the Supreme Court eventually took in the 2019 Rucho case.] Four Justices, including Justice Souter, dissented. Justice Kennedy agreed with the Scalia group that the standards for policing partisan gerrymandering put forward by the dissenters did not work. But he disagreed with Scalia about non-justiciability, believing the issue should percolate longer. Scalia’s opinion was not for the Court, but a plurality opinion joined by 3 other justices.

In the file, I found that Scalia originally was writing a majority opinion for the Court, with Kennedy joining Scalia, Thomas, Rehnquist, and O’Connor. Between the 4th and 5th drafts, Kennedy advanced his lone view to keep the issue open but not embrace any standards. That 5th draft was still called a majority opinion, but Scalia began attacking Kennedy’s position in that draft.

Also, interestingly, Justice Souter began his dissent as an opinion concurring in the judgment, drawing a distinction between statewide claims and district by district claims.

I’m sure there’s a lot more to do with this file for someone who has time. You can find the selected documents I copied at this link.

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“Alaska Redistricting Board adopts final political map after landmark gerrymandering ruling”

Anchorage Daily News:

The Alaska Redistricting Board unanimously approved the state’s final political map Monday after twice being found engaging in unconstitutional partisan gerrymandering.

In a landmark decision in April, the Alaska Supreme Court ruled explicitly for the first time that partisan gerrymandering runs afoul of the state constitution. The court had twice struck down political maps that attempted to give solidly Republican Eagle River more political representation with two Senate seats. An interim map that the court ordered to be used for last November’s general election kept Eagle River intact with one Senate seat. The board approved that version at its Monday meeting.

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Supreme Court will hear South Carolina racial gerrymandering case

Appeal from a three-judge panel decision in South Carolina in Alexander v. S.C. Conference of the NAACP. Earlier ELB coverage on the panel decision is here. That panel found that South Carolina’s First Congressional District was a racial gerrymander.

There’s a host of issues raised that the Court might consider, from the appeal:

(1) Whether the district court erred when it failed to apply the presumption of good faith and to holistically analyze South Carolina Congressional District 1 and the South Carolina General Assembly’s intent; (2) whether the district court erred in failing to enforce the alternative-map requirement in this circumstantial case; (3) whether the district court erred when it failed to disentangle race from politics; (4) whether the district court erred in finding racial predominance when it never analyzed District 1’s compliance with traditional districting principles; (5) whether the district court clearly erred in finding that the General Assembly used a racial target as a proxy for politics when the record showed only that the General Assembly was aware of race, that race and politics are highly correlated, and that the General Assembly drew districts based on election data; and (6) whether the district court erred in upholding the intentional-discrimination claim when it never even considered whether—let alone found that—District 1 has a discriminatory effect.

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New Issue: Fordham Law Voting Rights and Democracy Forum

Tired of the 24 hour news cycle? Check out the final issue of the inaugural Fordham Law’s Voting Rights and Democracy Forum. With articles written by both established scholars in the field and JD candidates, it is a refreshing change of pace. Richard Briffault argues that New York’s first round of independent redistricting was an “epic fail.

“In 2014, following passage in two successive legislatures, New York voters ratified amendments to the state constitution to change both the process and substantive rules governing the decennial redistricting of the state’s legislature and congressional delegation. . . . . Sadly, the new process employed in the 2022 redistricting was an epic fail. This Essay examines the first test of this new constitutional procedure and contends that the IRC, the state legislature, and the subsequent judicial intervention, all flunked it.”

Other crisp and timely articles in the volume include:

Voting Rights and the Electoral Process: Resolving Representation Issues Due to Felony Disenfranchisement and Prison Gerrymandering

Third Parties and the Electoral College: How Ranked Choice Voting Can Stop the Third-Party Disruptor Effect

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Voting Rights Groups Settle Racial Gerrymandering Case in Florida

Voting rights groups reach a settlement with Jacksonville City Council, which agreed to continue using maps ordered by a federal court that provide fair representation to Black communities through the next redistricting cycle after the 2030 Census. This largely settles the case Jacksonville Branch of the NAACP vs. City of Jacksonville, which sued the Jacksonville City Council for drawing maps that “packed” together Black communities and denied them a fair voice in local government. The case was filed by the Southern Poverty Law Center (SPLC), American Civil Liberties Union of Florida (ACLU-FL) and the Election Law Clinic at Harvard Law School on behalf of local organizations including the Jacksonville NAACP Branch, the Northside Coalition of Jacksonville, the Northeast Chapter of the ACLU of Florida, Florida Rising and 10 individual residents.

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“Federal judge grants injunction in Boston redistricting case: ‘The ball is back in the City Council’s court.’”

Boston Globe: The City of Boston’s new maps for City Council have been enjoined and must be redrawn before the November elections.

“’Plaintiffs have demonstrated a likelihood of success in showing that race played a predominant role in the City Council’s redrawing of Districts 3 and 4 in the enacted map, and Defendants have not demonstrated that the enacted redistricting map is narrowly tailored to achieve a compelling interest,’ wrote [Judge Patti B.] Saris.”

With respect to District 4, the controversy centers around the decision to join a “cluster of majority-white precincts in the southern tip of Dorchester, including some of the most conservative voters who are more likely to turn out” (emphasis added) with voters from Jamaica Plain and Roslindale in order “to avoid ‘packing’ Black voters.” The NAACP and other local progressive groups supported the city’s maps. Very curious to know why it appeared to matter that these voters were both more conservative and more likely to turn out (probably also older).

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Richard Bernstein: Time to Unanimously Dismiss Moore v. Harper on Jurisdictional Grounds

The following is a guest post from Richard Bernstein, who wrote an amicus brief supporting affirmance in Moore v. Harper but who expresses his own views here:  

Whatever your view of the Elections Clause issues in Moore v. Harper, the battling 2022 and 2023 decisions of the North Carolina Supreme Court seem to reflect that at least some elected state court judges have difficulty divorcing their judicial views of partisan gerrymandering from their partisan affiliations.  We can hope that in the final chapter of Moore v. Harper in the U.S. Supreme Court, the Justices will do better.  These unelected, life-tenured Justices should be able unanimously to dismiss Moore v. Harper on either or both of two jurisdictional grounds.

To start, the U.S. Supreme Court lacks jurisdiction under 28 U.S. § 1257.  This provision limits appellate jurisdiction over state courts to “[f]inal judgments or decrees” by a state’s highest court.  The petitioners’ March 20, 2023 letter brief argued they were appealing from two final judgments of the North Carolina Supreme Court.  Letter brief at 1–3.  The first was the February 4, 2022 order and February 14, 2022 opinion of the North Carolina Supreme Court which, together, everyone calls Harper IHarper I reversed a January 11, 2022 judgment of a three-judge North Carolina trial court that had ruled that there were no justiciable claims against partisan gerrymandering under the North Carolina Constitution.

Harper I also remanded for the trial court, if necessary, to draw its own congressional map for the 2022 election.  The trial court did so in a February 23, 2022 order.  The second final judgment that petitioners argued they were appealing was the North Carolina Supreme Court’s order, also issued on February 23, 2022, that denied a stay of the trial court’s map.  Letter brief at 3.

The April 28, 2023 decision of the North Carolina Supreme Court—which I will call Harper III—has made both of the final judgments previously identified by petitioners nullities under North Carolina law.  Harper III did not merely overrule Harper I as a precedent prospectively.  Harper III wiped Harper I off the books in its own case.  Thus, where Harper I had reversed the state trial court’s January 11, 2022 order, Harper III expressly “affirm[s] the three-judge panel’s 11 January 2022 Judgment concluding, inter alia, that partisan gerrymandering claims are nonjusticiable political questions and dismissing all of plaintiffs’ claims with prejudice.”  Opinion at 10, 145–46.  Whether Harper I was once a final judgment no longer matters.  Harper I is defunct.

Harper III also has nullified the second purported final judgment of the North Carolina Supreme Court from which petitioners appealed.  That was the North Carolina Supreme Court’s order that declined to stay the state trial court’s February 23, 2022 order that drew a congressional map for the 2022 election.  Harper III did more than stay the trial court’s map:  “The three-judge panel’s 23 February 2022 order addressing the Remedial Plans is vacated.  Plaintiffs’ claims are dismissed with prejudice.”  Opinion at 146.

These same portions of Harper III independently render Moore v. Harper moot.  The petitioners in Moore v. Harper were the defendants in the North Carolina proceedings.  As noted, Harper III “dismiss[ed] all of plaintiffs’ claims with prejudice.”  Opinion at 10 (emphasis added).  Surely, a defendant’s subsequent total victory moots a defendant’s appeal of a prior decision that now has been nullified.

There is no possible additional relief that the U.S. Supreme Court could grant petitioners.  The relief sought by petitioners in the U.S. Supreme Court had been to “revive[] the General Assembly’s original [2021] congressional map.”  March 20, 2023 letter brief at 2.  Harper III already gave petitioners more than they had sought in the U.S. Supreme Court.  Describing how the legislature drew the 2021 map based on the “mistaken interpretation of our [North Carolina’s] constitution” that the state constitution in any way limits partisan gerrymandering, Harper III ruled that “[t]he [current] General Assembly shall have the opportunity to enact a new set of legislative and congressional redistricting plans,” with as much “partisan gerrymandering” as the legislature chooses.  Opinion at 142–44.

Petitioners cannot escape the statutory and Article III bases for dismissing Moore v. Harper by arguing that the federal issues they have raised are capable of repetition yet would evade review.  To start, there is no “capable of repetition” exception to the jurisdictional limits of 28 U.S.C. § 1257.

Even looking at mootness, the federal Elections Clause issue raised by petitioners is not capable of repetition as to these petitioners.  To the contrary, Harper III holds the North Carolina General Assembly may draw congressional districts for 2024—and beyond—that have as much “partisan gerrymandering” as possible.  Opinion at 141–44.

Of course, anti-partisan gerrymandering claims concerning congressional redistricting might continue to arise in other cases under the constitutions of states other than North Carolina.  But whether such claims are preempted by the federal Elections Clause will not evade review by the U.S. Supreme Court.  The Court has already addressed on the merits the application of state constitutions to congressional redistricting three times.  See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787 (2015); Smiley v. Holm, 285 U.S. 355 (1932); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916).  Moore v. Harper apparently would have been the fourth time—except for the truly anomalous situation that the change in membership of an elected state supreme court led to the nullification of an earlier decision of that court after the U.S. Supreme Court had granted certiorari and before the U.S. Supreme Court’s decision on the merits.  That aberrant chain of events is most unlikely to be repeated.

There will be future opportunities for the U.S. Supreme Court to address any limits the Elections Clause places on the application of state constitutions to congressional redistricting and other aspects of federal elections.  The Court should not misuse the husk of Moore v. Harper to render an advisory opinion in advance.  Doing so would damage the neutral principles that govern the statutory and constitutional limits on the Supreme Court’s appellate jurisdiction.

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“There’s only one way to fix gerrymandering (and it’s not through the courts)”

In The Hill, Grant Tudor and Beau Tremitiere highlight their report on the congressional single-member-district statute.  

I think various institutions in several states might want a word about the “only one way” in the headline (which op-ed columnists usually don’t write, despite the fact that their names are right underneath).

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More Moore

The Court has asked for another round of briefing on what the heck should happen in Moore v. Harper, the current vehicle for the “independent state legislature” challenge, now that the North Carolina Supreme Court has said that the state constitution doesn’t prohibit the legislature from partisan gerrymandering.  This’ll be quick: briefs are all due by next Thursday.

The North Carolina Constitution doesn’t really purport to set any other specific criteria for congressional districts (there are still some constraints for state legislative lines), so I’m not sure what relief the legislature would be asking for here. (And as others have noted, the Ohio case is waiting in the wings.)

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