The Supreme Court and the Freedom to Gerrymander

So far this decade, the Supreme Court has not really weighed in on redistricting. But two cases this term are set to change that — and could result in a renewed freedom for politicians to manipulate maps for partisan or self-serving purposes.

The first case, Alabama Legislative Black Caucus v. Alabama — which the Court heard in November — challenges the maps that Alabama Republicans drew after taking control of the legislature in 2010. Although Republican legislative leaders say they simply redrew districts to comply with the Voting Rights Act, African-American legislators say the goal was far more nefarious. By using the Voting Rights Act as an excuse, they say Alabama Republicans packed African-American voters into a reduced number of “minority” districts. The effect was to dilute African-American influence in the legislature and, worse, African-American leaders argue, to require that those districts be maintained permanently even as population shifts make it harder to draw compact districts in the future.

The Court could decide the case in a number of ways, including punting it back to the district court for more specific fact finding — a route suggested by lawyers for the Justice Department. The Court also could invalidate the maps by building on its racial gerrymandering line of cases. But at oral arguments, at least some of the justices seemed sympathetic to Alabama’s argument that it did what it did out of an abundance of caution in order to ensure that its maps were approved by Justice Department officials as then required under the Voting Rights Act.

As Loyola law Professor Justin Levitt has pointed out, similar arguments have been made by Republican legislators elsewhere in the South to defend maps opposed, in some cases vigorously, by minority communities. In North Carolina, for example, lawmakers radically redrew maps to create new majority-minority districts to replace districts where African Americans, although not a majority of the voting age population, had shown a consistent ability to elect their community’s preferred candidates. As in Alabama, mapdrawers in North Carolina cited concerns about avoiding liability under the Voting Rights Act as a justification for their actions.

If the Supreme Court rules for Alabama, and holds that the state was entitled to act prophylactically in drawing districts with larger than needed minority populations — even when opposed by minority groups and, moreover, even if its interpretation of the VRA was wrong — it would open the door to wide use of the Voting Rights Act as a pretext to disadvantage minority voters. This would be a dangerous abandonment of traditional judicial oversight of the redistricting process. Indeed, in the South, where racially polarized voting is increasingly the norm, it would give political majorities free rein not only to disadvantage minorities but also to engage in backdoor partisan gerrymandering.

The second case before the Court this term could tie the hands not of courts, but of citizens, to police the redistricting process and enact other election reforms. In Arizona State Legislature v. Arizona Independent Redistricting Commission — which the Court will take up in March — the Court will decide whether the independent redistricting commission created by Arizona voters in 2000 violates the Elections Clause of the U.S. Constitution because it was created by ballot initiative. The Arizona Legislature argues that voters acted outside their authority when they took power to draw maps away from legislators because the Elections Clause requires that the laws governing federal elections be set only by state legislatures or by Congress.

The Court surprised most observers last fall when it agreed to hear the case. Since the early 20th century, voters have used initiative power to enact a host of election laws, including Oregon’s all mail ballot election system, Florida’s constitutional amendment strengthening redistricting standards, and (ironically) the law requiring that Arizonians prove their citizenship before they can be registered as voters. The accepted consensus was that legislative power could be exercised by the people as well as by legislatures, and, not surprisingly, ballot initiatives have proven to be one of the most effective vehicles that ordinary citizens have had for overcoming resistance to change from vested political interests.

If the Supreme Court agrees with the Arizona Legislature and undercuts the power of voters to reform the broken political process, then an important check on redistricting abuses will have been lost. If, in the Alabama case, the Court also allows the Voting Rights Act to be used as a pretext for disadvantaging minority voters, the freedom to gerrymander will be even more unfettered.