Uncertainties In Gerrymandering Jurisprudence Are Unfair

By Tal Aburos | August 2, 2020, 8:02 PM EDT

Tal Aburos
Tal Aburos
At the very heart of democracy is the notion that the government shall be of the people, by the people, and for the people. Yet, throughout our nation's history, this fundamental principle has not included all of "the people," particularly in the voting context.

Different forms of voter suppression have plagued our system of democracy by virtue of property ownership requirements, poll taxes, and literacy tests. And while many idyllically believe the issue of voter suppression, of any kind, is long gone in this age of tolerance, it has just evolved into a different form: gerrymandering.

Gerrymandering is the practice of drawing electoral districts in such a manner that gives an unfair advantage to a particular group, such as a political party. To this day, gerrymandering continues to negatively impact our republican form of government, especially for minorities seeking to vindicate their rights cast by these not-so-arbitrary political district line drawings.

The unfortunate reality is that there is no proper system of checks and balances in place between the legislative and judicial branch in the gerrymandering arena. Here exists the perfect storm: (1) an overbearing burden plaintiffs must meet to prove a claim for racial gerrymandering; (2) the close interplay between race and politics; and (3) the U.S. Supreme Court's ruling that political gerrymandering poses a nonjusticiable political question.

With the decennial census underway and the corresponding redistricting cycle closely approaching, it is critical that we examine the current state of gerrymandering jurisprudence and how it implicates minority votes and representation.

In the upcoming year, congressional and legislative districts will be redrawn to comply with the Constitution's "one person, one vote" guarantee — the very principle that ensures everyone is accounted for. Yet, the uncertainties at the core of racial gerrymandering jurisprudence makes that principle not so clear.

The "Demanding" Burden of Racial Gerrymandering

In the landmark decision of Shaw v. Reno, the U.S. Supreme Court pronounced that a redistricting plan that classifies on the basis of race cannot be upheld under the equal protection clause of the 14th Amendment unless it is narrowly tailored to achieve a compelling state interest.[1]

While Shaw seemed to be the beginning of the legal framework necessary to secure equal voting rights for racial minorities, the court in Miller v. Johnson clarified that the strict scrutiny test does not apply merely because redistricting is performed with race as a factor. The majority recognized that "[r]acial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial scrutiny,"[2] but also explained that for strict scrutiny to apply, plaintiffs must first meet the "demanding" burden of proving that race was the predominant factor motivating the drawing of district lines.[3]  

There is no question that the burden of proof on plaintiffs challenging a redistricting plan on equal protection grounds is a "demanding one."[4] To make this showing, plaintiffs may rely on circumstantial evidence of a district's shape and demographics, or more direct evidence going to legislative intent that race was a priority over all other traditional districting factors.[5]

Yet, often, plaintiffs will only have circumstantial evidence — given that outright admissions of an impermissible racial motivation are highly unlikely.[6] Moreover, behind the backdrop of this standard is the judicially mandated presumption of good faith that must be afforded to legislative enactments,[7] making it even more challenging to meet the burden of proof.

The predominant factor test articulated in Miller has raised a host of questions that are still unsettled today. Where do we draw the line between being aware of racial considerations and motivated by them? How do we distinguish a racial motivation from a "legitimate" political explanation where race and political affiliation are highly correlated? Can we even go about creating a uniformly objective standard for the inherently subjective analysis of anything racially motivated?

Mixed-Motive Suits: The Interplay Between Race and Politics 

The most complex gerrymandering claims involve "mixed motives" — where there is evidence to support a claim for both racial gerrymandering and partisan gerrymandering.[8] In these cases, plaintiffs are tasked with the unique burden of disentangling race from politics.[9]

The Supreme Court itself has repeatedly acknowledged the problem of distinguishing between racial and political motivations in the redistricting context, particularly because: (1) legislators may engage in political gerrymandering, even if the most loyal members of a political party happen to be of the same race and the legislature is conscious of that fact; and (2) there is a high correlation between racial and political affiliation.[10]

The court's 2019 decision in Rucho v. Common Cause added yet another wrinkle to the racial gerrymandering analysis by ruling that partisan gerrymandering is a nonjusticiable political question. While Chief Justice John Roberts, writing for the majority, acknowledged that partisan gerrymandering is "incompatible with the democratic process,"[11] the 5-4 majority concluded that "a jurisdiction may engage in constitutional political gerrymandering"[12] and there is no "judicially manageable standard" for resolving whether partisan gerrymandering has gone "too far."[13]

In reaching its conclusion, the Rucho court distinguished partisan gerrymandering from racial gerrymandering, explaining that the decision does not affect its racial-gerrymandering jurisprudence.[14] But how do we reconcile Rucho when race and politics are so closely intertwined?

In practice, this determination is highly subjective, as some judges may see an unconstitutional racial motivation and others a perfectly constitutional political motivation. Justice Samuel Alito's dissenting opinion in Cooper v. Harris expounds on this subjective determination: "If around 90% of African-American voters cast their ballots for the Democratic candidate, as they have in recent elections, a plan that packs Democratic voters will look very much like a [plan] that packs African-American voters."[15]

Conclusion

The inherent dangers of racial classifications, the strong correlation between race and politics, and the Supreme Court's opinion in Rucho call for the court to reevaluate its racial gerrymandering jurisprudence. As it stands, plaintiffs challenging a redistricting plan on the basis of race are left with very little recourse, given the demanding burden and the legislature's ability to hide behind the guise of a political motivation.

In the current political and social climate, combating racial classifications is an ever-present necessity. The court may have the opportunity to address this legal framework in the upcoming redistricting cycle and give the people the requisite tools to ensure racially fair districting plans.



Tal Aburos is an associate at Levine Kellogg Lehman Schneider & Grossman LLP.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


[1] Shaw v. Reno , 509 U.S. 630, 642 (1993).

[2] Miller v. Johnson , 515 U.S. 900, 904 (1995).

[3] Id. at 916.

[4] Id. at 928 (O'Connor, J., concurring); see also Easley v. Cromartie , 532 U.S. 234, 241 (2001).

[5] Miller, 515 U.S. at 916.

[6] Hunt v. Cromartie , 526 U.S. 541, 553 (1999).

[7] Miller, 515 U.S. at 916.

[8] Bush v. Vera , 517 U.S. 952, 959 (1996).

[9] Cooper v. Harris , 137 S. Ct. 1455, 1473 (2017).

[10] Id. at 1488; see also Cromartie, 526 U.S. at 552. 

[11] Rucho v. Common Cause , 139 S. Ct. 2484, 2506 (2019).

[12] Id. at 2497.

[13] Id.

[14] Id. at 2496-497.

[15] Cooper, 137 S. Ct. at 1488 (Alito, J., dissenting).

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