Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Free Newsletter Sign Up

INSIGHT: SCOTUS Sets Stage for Next Decade’s Redistricting Fights Over Four Key Issues

July 10, 2019, 8:00 AM

The U.S. Supreme Court in Rucho v. Common Cause just rejected partisan-gerrymandering claims, ending a decades-long debate about whether the U.S. Constitution gives courts the power to invalidate redistricting maps on the basis of excessive partisanship. But this will only intensify federal redistricting litigation after next decade’s census.

As Rucho confirmed, the court will continue to resolve “one-person, one-vote and racial gerrymandering” claims. So next decade’s redistricting fights will refocus on these claims, including issues over Section 2 of the Voting Rights Act (VRA).

In Rucho, the Supreme Court held that courts cannot invalidate redistricting maps on the basis that they excessively favor a particular political party. The court reasoned that “determining that lines were drawn on the basis of partisanship does not indicate that the districting was improper,” ultimately holding that partisan-gerrymandering claims “present political questions beyond the reach of the federal courts.”

As a practical matter, however, Rucho essentially just preserved the legal regime that had existed for decades. As Rucho noted, the Supreme Court “ha[d] not previously struck down a districting plan as an unconstitutional partisan gerrymander.”

Battles Expected on Four Key Issues

Now that it’s clear that partisan-gerrymandering claims cannot be raised under the U.S. Constitution, next decade’s redistricting fights will center on four key issues raised—but not resolved—during this decade’s litigation:

  • When does race “predominate” in redistricting under the racial-gerrymandering doctrine?

This decade, the Supreme Court issued a series of decisions on the “racial gerrymandering” doctrine, which prohibits states from using race as the predominant criterion in drawing a district—unless the state has a sufficient justification. The court held, for example, (1) that race could possibly predominate even if a district did not conflict with traditional redistricting criteria, (2) courts must look at the entire challenged district instead of just a portion, and (3) public statements made by legislators could suffice to show race was the predominant factor.

Lower courts routinely grapple with the proper test for when race “predominates,” and this term’s Virginia House of Delegates v. Bethune-Hill case presented another opportunity for Supreme Court guidance on the issue. But the court never reached the racial-gerrymandering issue in this decision, holding instead that the Virginia House lacked standing to appeal the invalidation of the state’s redistricting plan. (Moreover, the Supreme Court expressly left open another issue for further litigation: whether individual legislators could have standing in redistricting cases if they had to run “costlier or more difficult election campaigns.”)

Without additional guidance on the frequently litigated issue of when race predominates in redistricting, fights over the racial-gerrymandering doctrine are bound to continue next decade.

  • When do states have “good reasons” to believe that VRA §2 required a race-based district—and thus a defense to racial-gerrymandering claims?

The Supreme Court has interpreted VRA §2 to generally require “majority-minority” opportunity districts when a sufficiently compact district could be drawn with a racial minority group making up at least 50% of the district’s voting population. The court has thus recognized states have a defense to racial-gerrymandering claims when they have “good reasons”—even if incorrect in perfect hindsight—to believe VRA §2 required a “majority-minority” district with a certain population target based on race.

This decade’s Supreme Court redistricting cases expounded on a context-specific test for what qualifies as “good reasons.” Two years ago in the same term, the court upheld a 55% black-voting-age-population requirement in a Virginia district, but it invalidated a 50% target in a North Carolina district where historical election data showed minority-preferred candidates could be elected without the target.

Just last term, Abbott v. Perez invalidated a similar 50% Latino-voting-age-population target—even when that Texas district was drawn at the request of minority groups. The court held that a state legislature must actually undertake a “pre-enactment analysis” during the map-drawing process to invoke this VRA §2 defense.

What constitutes sufficient “pre-enactment analysis” will certainly be litigated next decade.

  • Are “coalition” districts required by VRA §2?

The Supreme Court has expressly left open whether VRA §2 requires the drawing of “coalition” districts, and this issue has produced a conflict of authority in lower courts. As the court has explained, a coalition district is one where multiple racial groups— combined—comprise the majority of the district, even though no single racial group alone reaches the 50% threshold to qualify as a VRA §2 “majority-minority” opportunity district.

Language from this decade’s Perry v. Perez and last decade’s Bartlett v. Strickland opinions strongly suggests that the VRA does not require the drawing of coalition districts. Regardless, even if VRA §2 could require coalition districts, courts would then have to confront the additional question whether primary versus general election data should be examined in assessing whether a coalition exists. LULAC v. Perry last decade strongly suggested that “contested primary” data is the relevant VRA §2 benchmark.

  • Can states use eligible voter—rather than total—population to comply with the one-person, one-vote doctrine’s requirement that districts have roughly equal population?

This decade’s Evenwel v. Abbott decision expressly left this issue open. The Supreme Court in Rucho just stated that “‘vote dilution’ in the one-person, one-vote cases refers to the idea that each vote must carry equal weight,” suggesting that eligible voter population could be a proper metric.

Regardless of what happens next in the Department of Commerce v. New York census case that the court just remanded, states will have eligible-voter population data available for next decade’s redistricting. As Justice Breyer’s partial dissent pointed out, VRA litigation has “always used citizenship data derived from sampling,” and the “Census Bureau offered to provide [citizenship] data at the census block level.”

In short, redistricting litigation will only intensify after the 2020 census. After Rucho, next decade’s redistricting litigation will not have federal partisan-gerrymandering claims. But that only raises the stakes on racial-gerrymandering, VRA §2, and one-person, one-vote litigation.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Scott Keller is chair of Baker Botts’ Supreme Court and Constitutional Law Practice, and he has briefed and argued numerous appeals nationwide. Scott has argued 11 cases in the U.S. Supreme Court, including two recent redistricting cases: Abbott v. Perez and Evenwel v. Abbott; additionally he has been counsel of record on more than 80 U.S. Supreme Court briefs.