This post is the first in a series about the redistricting cases moving through the courts.
In the Spring of 2013, two prominent election lawyers, a Republican and a Democrat, visited my Election Law class. I asked them what were the great unsettled questions in the field, especially governing redistricting. They were united in their answer: none. There were, in their opinion, no big unsettled matters of law in this field remaining.
Over the subsequent five years, the laws governing redistricting have been turned inside out. The Supreme Court of the United States radically altered the laws governing race and redistricting, first, by striking down Section 4 of the Voting Rights Act in Shelby County v. Holder and, second, by clarifying the meaning of the 14th Amendment for racial redistricting in Alabama Legislative Black Caucus v. Alabama. The Supreme Court then dove into the thorny issue of partisan gerrymandering in Gill v. Whitford. Election law experts are anxiously watching that decision, and waiting on the Court’s docket are partisan gerrymandering cases in Maryland and North Carolina. However Gill v. Whitford comes down, the partisan gerrymandering and racial redistricting cases will have reshaped the rules governing redistricting leading into the 2020 Census and the coming cycle of redistricting.
The voting rights cases before the courts today raise profound questions about American government, as much as law. In particular, are the courts able to address highly political issues of race and party without damaging the standing of the judiciary in our system of government?
Judges are rightly reluctant to take on redistricting. In the American system of government, the configuration of legislative districts is left to the legislatures. Lurking behind every redistricting case lies the dark prospect of a constitutional crisis in which the courts and the legislatures are at odds with each other, with no way of resolution. The courts’ very legitimacy could be undermined if a court declared a map illegal and the legislature simply ignored the judicial order. For this reason, Justice Frankfurter long ago warned, the courts should not enter the “political thicket.”
How can the courts avoid such a crisis? One approach is to simply duck these questions. But, over the long-run, that is unhealthy for our democracy. The problems of unequal or unfair representation are problems of equal protection and ultimately influence the legitimacy of the system of representation. The courts must take on these problems directly, and a successful judicial approach—one that ensures a manageable and legitimate process—depends on the clarity of the standard and the remedy.
Much of the commentary and debate over partisan and racial redistricting over the past few months has focused on whether there are clear standards that the courts can enforce. The standards are, in my judgment, much clearer than those of process and remedy. In the area of race, over the past 30 years, the courts have evolved clear standards of when and how the Voting Rights Act applies to particular situations. In the area of party, although the courts have yet to set down a standard, political science has long embraced the notion of partisan symmetry of a map, as my colleagues Gary King and Robert Browning have recently written.
Process and remedy are often less clear. The process usually involves the creation of a map (typically by legislative staff), enactment of the map (by the legislature as a whole), and review of the map (by state or federal courts or government agencies such as the Department of Justice). The remedy is how to create a new map if the review of the map finds a violation of the standard for an appropriate district. If a violation of a law is found, what is the recourse? How can the courts remain open to suits challenging a legislative districting map without being overwhelmed by frivolous cases and without being in constant conflict with the legislature? And how can the courts act when a serious violation of the law occurs without endangering the legitimacy of the judiciary?
The problems of standard, process, and remedy are tightly linked. Clear standards make the judicial process much easier. That was the lesson of Baker v. Carr, which established the equal protection claim in electoral districts in 1962, and Reynolds v. Sims, which established “one person, one vote” in 1964. After the initial explosion of equal protection suits in the mid-1960s, the state legislatures largely complied with one person, one vote in the 1970 redistricting cycle. A clear standard — such as one person, one vote — makes the process much easier.
The remedy was also crucial in solving the problem of unequal district populations. Cases before Baker had already established that if a districting plan was found to be illegal, the courts could require that all legislators be elected at large — that is, in a single statewide election. For the problem of unequal district populations, that threat was sufficiently powerful to force the state legislatures to comply. As a result, the redistricting cases of the 1960s did not land the Court in Frankfurter’s political thicket.
The lessons of the Baker case remain valuable. Remedial solutions exist today that take the districts out of the hands of the legislature. First, the courts can draw the districts. Since 2011, the courts have done just that in 11 states. The advent of computerized districting has made manipulation of districts easier, but it has also made it possible for judges, clerks, or staff to draw their own maps. Second, courts can rely on special masters to draw maps. Special masters have recently drawn maps in New York, Connecticut, North Carolina, and Virginia. These are powerful threats if courts are willing to use them, but they involve considerable effort on the part of the courts.
Their effectiveness, however, may lie not in the courts actually drawing a new map, but in the threat of court intervention. The possibility of losing control of the districting process might be enough to force legislatures to respect equal protection, just as the prospect of at-large elections forced the legislatures in the 1960s to draw equal population districts.
As the Supreme Court takes on the partisan gerrymandering issue and revisits the problem of race and representation, it will need to be clear both on the standard and the potential remedy.