Redistricting is the most nakedly partisan activity in American politics. The decennial activity of allocating political power results in conflict among regional, partisan, racial, and ethnic communities of interest. (1) Political science research generally acknowledges that when one party completely controls the redistricting process it will perpetuate its majority even if doing so unfairly disadvantages the minority party. (2) Tendencies toward political excess are most likely to be deterred when redistricting is done by (1) a non-partisan commission; (2) a divided government, forcing bipartisan cooperation; or (3) the judiciary, working with third-party, neutral mapmakers to check majority excesses. (3)
The 2001 Georgia redistricting was a blatant exercise of power by a political majority bent on self-perpetuation. (4) By the mid-1990s, Democrats had ceased to attract a majority of the votes for state legislators, yet they continued to win a majority of seats in both chambers. (5) When confronted with the need to redistrict, Democrats sought not simply to hold their own but to increase their share of the seats. The redistricting led to two judicial challenges, two trips to the U.S. Supreme Court, (6) a modification of the non-retrogression standard of Section 5 of the Voting Rights Act by the United States Supreme Court, (7) and, ultimately, invalidation of the districts for violating the one-person, one-vote principle. (8)
In Larios v. Cox, the court implemented a replacement map crafted by a special master named by the three-judge panel. (9) The court largely ignored political factors in deference to traditional redistricting principles and on April 14, 2004, produced a map with population deviations of less than +/-1%. (10) After the implementation of this politically-neutral plan, the Democratic party lost control of the Georgia House of Representatives for the first time since Reconstruction. (11) Statistical patterns present in the 2002 legislative elections, when applied to the demographic and structural changes in the new districts, projected a Republican majority with a shift in the expected partisan majority between ten and thirteen districts. (12) In actuality Republicans gained far more seats, and only about half of the seats changing hands can be attributed to the remap. (13) The remap demonstrates the potential consequences of undoing a partisan gerrymander and helps define the limitations enunciated by the courts regarding their ability to recognize and undo partisan gerrymanders.
In this Article, we explore the impact of a court-ordered and implemented re-crafting of state legislative districts in the state of Georgia. First, we explore the notion of "fairness" in legislative redistricting and identify the factors associated with a "fair" map. We then describe the partisan nature of the 2001 Georgia state legislative redistricting and the political consequences of this most effective gerrymander. We also describe the two legal challenges to the Georgia maps--Georgia v. Ashcroft and Larios v. Cox--and discuss the path of both cases to the U.S. Supreme Court. We then explore the expected and observed consequences of the Court-ordered and implemented redistricting that undid the unconstitutional Georgia gerrymander, and draw conclusions regarding the prospect for how court remedies can affect partisan bias in redistricting plans.
WHAT ARE "FAIR" LEGISLATIVE MAPS?
The controversies arising in redistricting relate to a pair of primary questions: what are the motives of the map-maker, and how do these motives affect the "fairness" of a map? These questions are difficult to address because the notion of fairness is arbitrary and relative. (14) The term "gerrymander" means to craft legislative boundaries for political advantage. (15) In popular parlance, contorted, oddly-shaped districts resembling mythical beasts, windshield-splattered bugs, or elongated barbells are considered to indicate something facially "unfair." (16) Districts of conventional geometric shape, such as squares, rectangles, and hexagons, are less questionable. (17) It is also possible to gerrymander for advantage without violating compactness and using normal shapes, but to do so is far from easy and likely leads to some waste relative to the goals of those who gerrymander. (18) The Georgia redistricting of 2001 raised all of these questions, as legislative districts became less compact, less respectful of political subdivisions, stretched notions of contiguity, and tested the limits of population inequality. (19)
Once the judiciary decided to ignore Justice Frankfurter's admonition to avoid the political thicket and not interfere with legislative decisions allocation, (20) the courts' initial concern focused on differences in the numbers of residents per district. (21) Courts interpreted the Equal Protection Clause and Article I of the U.S. Constitution to require that all collegial bodies that chose representatives from districts equalize the population among their districts. (22) Karcher v. Daggett reiterated the standard for population variations in congressional districts, stating, "absolute population equality [must] be the paramount objective of apportionment [because] the command of Art. I, [section] 2 as regards the national legislature outweighs the local interests that a State may deem relevant in apportioning districts for representatives to state and local legislatures." (23) Ultimately, the Supreme Court signaled that state legislative plans that limited the range in population across their districts to no more than 10% were presumed to comply with the equal population requirement. (24)
Dilution of Minority Political Influence
After population equality, the second most important requirement when assessing districting plans is that they not dilute minority political influence. Georgia, along with Alabama, Louisiana, Mississippi, South Carolina, Virginia, about half of North Carolina, and parts of eight other states must prove the racial fairness of their districting plans as a result of being subject to Section 5 of the 1965 Voting Rights Act. (25) This legislation and its subsequent amendments require jurisdictions with low levels of participation in the 1960s and 1970s to submit all legislation that changes election laws or procedures to either the Attorney General of the United States or the district court of the District of Columbia for review and approval before implementation ("preclearance"). (26) Districting plans are among the types of legislative changes requiring federal approval. (27) The initial legislation sought to protect African-Americans, but the 1975 amendments expanded preclearance requirements to linguistic minorities such as Latinos, Native Americans, and Asian Americans. (28)
Districting plans in jurisdictions not subject to the preclearance provision of the Voting Rights Act may be challenged by minorities who believe that their political influence has been diluted, or by the U.S. Attorney General. (29) The preclearance provision of Section 5 applies to only 16 states; the entire nation is subject to Section 2 of the Voting Rights Act as amended in 1982. (30)
The standard applied by federal authorities in the course of preclearance has been non-retrogression. (31) For most of the time since its inception, non-retrogression has barred new maps that reduce the number of districts in which a protected minority constituted a majority of the population. A second application forbade reducing the minority population percentage in districts in which they constituted a majority. (32) This has allowed federal authorities to ensure that concentrations of minority group members not be dispersed in the course of redistricting. (33)
Continuity of Representation
Several additional factors may be considered in the course of drawing new districts, although these are afforded less significance than equal population and the fair treatment of minorities. (34) An additional consideration has been the treatment of incumbents and their constituencies, with attention specifically on questions of political or partisan fairness. (35) The treatment of incumbents usually focuses on three aspects:
(1) Continuity of representation: what proportion of an incumbent's new constituency comes from the old constituency, i.e. does the new map retain the core of the old district? (36)
(2) Political balance and continuity of the reelection constituency: how does the partisanship of the new district compare to the old district? (37)
(3) Pairings: are incumbents paired so they must run against each other? Are the pairings competitive? Are they party-neutral or do the pairings advantage one party over the other? (38)
On the other hand, protection of incumbents is a traditional districting principle that a legislature may consider. (39) Incumbent protection is limited to the extent that it must give way in the face of higher priorities that have been recognized by courts--equal population and equitable treatment of minorities. (40) In assessing the fairness of maps, biased treatment of incumbents by region or party can be important. Treatment of incumbents may indicate a general partisan bias in map design. When changes in party competitiveness, core retention, and incumbent pairing fall disproportionately and detrimentally on incumbents of one party, and are not a product of the pursuit of population equality, racial fairness, or other traditional redistricting principles, this can constitute evidence of partisan gerrymandering. (41) Thus, incumbency may be subordinated to other redistricting principles.
Of all the fairness concerns in redistricting, none has proven more elusive than partisan fairness. Representative political systems rest on a presumption that preferences will be efficiently translated into government, and, more specifically, that majority preferences will...