Alex J. Whitman, Pinpoint Redistricting and the Minimization of Partisan Gerrymandering

• Publication year: 2009

PINPOINT REDISTRICTING AND THE MINIMIZATION OF PARTISAN GERRYMANDERING†

ABSTRACT

For over twenty years, the political gerrymandering claim under the Equal Protection Clause of the Fourteenth Amendment has been mired in ambiguity because the Supreme Court and lower courts have failed to come up with a clear standard to determine whether a redistricting plan is unconstitutional. In 2006, however, a new phenomenon that this Comment terms "pinpoint redistricting" was used by Georgia's Republican-dominated state legislature to alter the boundaries of a small group of districts rather than all of the state's district boundaries, severely weakening the strength of Democratic voters in the affected districts. The pinpoint redistricting changed the affected districts from competitive to strongly Republican, and as a result, the redistricting party's candidates achieved sizable victories in the 2006 elections.

In the context of this novel form of redistricting, this Comment proposes a new approach to the political gerrymandering claim. All of the Supreme Court's previous cases examined political gerrymanders that redrew all of a state's boundaries and addressed the harm to political groups in statewide terms. Pinpoint redistricting's effect on a limited number of districts should allow courts to shift to a district-based approach to judge these gerrymanders. Such an approach would be tailored to the facts of pinpoint redistricting, drawing from Justice Stevens's proposal to adapt the Court's racial gerrymandering jurisprudence from the Shaw v. Reno line of cases to the political gerrymandering claim, elements of the original political gerrymandering standard from Davis v. Bandemer, and Justice Kennedy's elusive view on what would be an applicable standard for certain narrowly defined situations. Under this new standard, an extreme political gerrymander, identifiable by the unusual nature of its implementation, would be unconstitutional if partisan intent guided every major aspect of drawing the new district lines and resulted in active degradation of a political group's electoral strength in a specific district through substantial weakening of the group's political performance in successive elections. While this standard is designed to correct the danger of pinpoint redistricting, it can serve as a model for an effective district-based approach to future political gerrymandering claims.

INTRODUCTION

Over the past decade, partisan gerrymandering has made competitive legislative elections a rarity.¹Only a small fraction of seats have seen meaningful competition in recent elections; the vast majority of elections are decided the day the district maps are drawn.²Partisan gerrymanders, drawn to perfection by state legislators, provide a major advantage to the party controlling the redistricting process as opposition party politicians find themselves running in districts where they could not possibly win,³and friendly incumbents run for reelection in impregnable districts.⁴Across the political spectrum, observers criticize the practice of partisan gerrymandering as a major threat to American democracy,⁵allowing those who draw the district lines to control the electoral system rather than the people themselves.⁶

Despite the widespread harmful effects of partisan gerrymandering, the Supreme Court's attempts to restrain excessive partisanship can only be described as impotent.⁷Since establishing the political gerrymandering claim in Davis v. Bandemer in 1986,⁸the Court has maintained the option of striking down a partisan gerrymander, but it has never exercised that option or even articulated a clear standard to guide courts and litigants.⁹The culmination of the Court's inaction came in the 2006 LULAC v. Perry decision, when the Court declined to strike down an unprecedented and egregiously partisan mid- decade redistricting in Texas.¹⁰This unfortunate demonstration of the Court's unwillingness to intervene opened the door to more frequent and even more partisan gerrymanders.¹¹

A more subtle incident in 2006, however, marked a crucial development in the history of partisan gerrymandering and has the potential to revolutionize the judicial approach to this troubled constitutional claim. Georgia's Senate District 46 was a rare competitive seat in a mostly Republican state;¹²the 2004 election was decided by about 1,800 votes out of over 47,000 cast.¹³The Republican incumbent had announced he would not run for reelection in 2006, and popular Democratic State Representative Jane Kidd announced her candidacy for the open seat.¹⁴Before the 2006 election, however,¹⁵the Republican-dominated state legislature of Georgia implemented what this

Comment calls a "pinpoint redistricting," a new form of partisan gerrymandering that alters an isolated group of districts rather than the entire state map. The Georgia state legislature's partisan gerrymander affected only District 46 and two of its neighboring districts.¹⁶While political gerrymandering has had a major impact on state and national politics for centuries,¹⁷an isolated gerrymander tailored to affect a political party or candidate in a single district was a new phenomenon. Every previously adjudicated political gerrymandering claim, including all of the Supreme Court's prior decisions, addressed a traditional redistricting plan that redrew all of a state's districts.¹⁸The Georgia state legislature minimized the partisan gerrymander to change the political character of a single competitive seat.¹⁹

The pinpoint redistricting was successful-in a race where Kidd had a good chance to win before the alteration of the district,²⁰she lost to the Republican candidate by a double-digit margin.²¹

Pinpoint redistricting represents a serious threat to what little competitiveness remains in legislative elections²²because it allows partisan actors to thwart any threat to their control of individual seats at any time without the attention or accountability to an entire state's voters, which a statewide gerrymander would have. Despite its devastating potential, however, this new form of partisan gerrymandering is ultimately an opportunity for courts to develop an effective political gerrymandering standard. For over twenty years, the Supreme Court and lower courts have addressed political gerrymandering by looking at the statewide impact of a redistricting plan, but using this approach, they have failed to establish a clear or meaningful standard.²³Pinpoint redistricting, however, only affects distinct and isolated districts rather than the entire state. Therefore, courts should formulate a new, district-based standard based on the factual scenario of pinpoint redistricting, which can then serve as a model for an effective, judicially manageable standard for all political gerrymandering claims. With the round of redistricting following the 2010 census fast approaching, a clear, relevant, and innovative approach to modern pinpoint partisan gerrymanders is necessary to stem the tide of excessive partisan abuses in drawing district lines.

Part I of this Comment traces the development of the political gerrymandering claim and describes the changing nature of political gerrymandering with the appearance of mid-decade redistricting in the 2000s. Part II describes the first appearance of pinpoint redistricting in Georgia and its likely use elsewhere in the future. Part III discusses why the traditional statewide approach to adjudicating political gerrymandering claims should not apply to pinpoint redistricting and argues that a new, district-based standard is needed to address pinpoint redistricting effectively. Part IV draws upon existing sources, including a modification of the framework of Davis v. Bandemer and an adaptation of the Shaw v. Reno line of cases to partisan gerrymandering, to formulate a district-based standard. It ultimately proposes a new standard for political gerrymandering claims based on the facts of pinpoint redistricting and addresses discrimination in an individual district. This new approach can provide a template for an effective district-based standard for all future political gerrymandering claims.

I. BROAD FOUNDATIONS: THE TRADITIONAL STATEWIDE APPROACH TO

POLITICAL GERRYMANDERING CLAIMS

Political gerrymandering is the manipulation of electoral districts by elected officials to give the redistricting party an unfair advantage over the opposition party.²⁴This is done by deliberately drawing districts to dilute the power of the opposing party, often by grouping a large number of members of one political party into a small number of districts to limit their victories (known as "packing") or spreading a political party's members across a number of districts to deny them a chance of winning in as many districts as possible (known as "cracking").²⁵In the landmark 1964 decision of Reynolds

v. Sims, the Supreme Court established the "one-person, one-vote" standard, which prescribes that, under the Equal Protection Clause of the Fourteenth Amendment, all legislative districts are required to represent approximately equal numbers of people to ensure that each person's vote has equal value.²⁶

Reynolds required all state legislatures to redraw congressional and state legislative districts' boundaries upon the release of new census numbers at the beginning of each decade.²⁷During this "Reapportionment Revolution,"²⁸however, state legislators controlling the redistricting process inevitably injected partisan and personal political goals into drawing new district boundaries,²⁹resulting in partisan gerrymanders heavily skewed in favor of the party that created the plan.³⁰

Partisan gerrymandering was criticized for decades after Reynolds,³¹but the round of redistricting after the 2000 census truly demonstrated its detrimental influence on American legislative elections.³²As the partisan bent of the post-

2000 gerrymanders strengthened, the competitiveness of legislative elections declined to...