Back to the Drawing Board: The Future of Partisan Gerrymandering in Redistricting 2020, 0919 SCBJ, SC Lawyer, September 2019, #52

• Author: By Vordman Carlisle Traywick, III
• Position: Vol. 31 Issue 2 Pg. 52

Back to the Drawing Board: The Future of Partisan Gerrymandering in Redistricting 2020

Vol. 31 Issue 2 Pg. 52

South Carolina BAR Journal

September, 2019

By Vordman Carlisle Traywick, III

Courts have struggled with partisan gerrymandering claims for years. Despite several chances, the U.S. Supreme Court was never able to agree upon a workable standard and, therefore, decided the cases primarily on procedural grounds. But the issue finally came to a head this term when the Court considered two cases out of Maryland and North Carolina.¹ In a blockbuster decision issued late this summer, the Court washed its hands of partisan gerrymandering claims once and for all.²

The opinion was quite timely. Indeed, as we approach the end of another decade, lawmakers will soon head back to the drawing board to prepare a new districting plan for South Carolina. Here, as in other states, the General Assembly is responsible for drawing the maps for seats in Congress, the state Senate, and the state House of Representatives.³ And school boards and local governments are tasked with redrawing their districts too.⁴

Redistricting has drawn a lot of attention in recent years—and for good reason. It is very important. These days, however, it is tough to siphon through the gobbledygook in the hyperpartisan environment in which we live to determine how redistricting works and what legal issues are at stake in redistricting litigation. Hopefully, this article will do just that, providing a crash course in redistricting criteria and challenges to redistricting plans, discussing the future of partisan gerrymandering, and outlining issues that may arise in 2020 in light of recent decisions from the U.S. Supreme Court.

Redistricting 101

While a challenge to a redistricting plan is often the only part of the process that makes the headlines, a lot more goes into making the sausage than one might expect. Thus, before diving too deep into gerrymandering, it is necessary to first sketch a brief background of the process and traditional redistricting principles.

Redistricting runs like clockwork. And the impetus for it is the decennial census conducted by the U.S. Department of Commerce.⁵ Once census data becomes available, lawmakers get to work.⁶ In the South Carolina General Assembly, the House and Senate Judiciary Committees take the first stab at drafting a districting plan for state legislative and Congressional seats.⁷ As part of that process, the committees solicit public input and hold numerous hearings to discuss the plans.

Further, both the House and the Senate adopt redistricting guidelines each cycle prior to drawing districts. In 2011, the House Judiciary Committee’s Election Laws Subcommittee adopted the following criteria to consider when crafting a plan: the U.S. Constitution and U.S. Supreme Court precedent, the Voting Rights Act of 1965, the state constitution and statutes, equal population and deviation, contiguity, compactness, communities of interest, incumbency protection, and public input.⁸ For its part, the Senate adopted the following criteria for consideration in 2011: population equality, voting rights, avoidance of racial gerrymandering, contiguity, communities of interest, constituent consistency, not dividing county boundaries, not dividing municipal boundaries, voting precinct boundaries, district compactness, and census data.⁹

Most of the grunt work happens in committee. Throughout the process, members get input into their respective districts, and the map drawers stay busy trying to consider all the criteria. Once a plan is voted out of committee, the House and Senate take floor votes on their respective plans. Sometimes a conference committee is necessary. But when both bodies agree upon a redistricting plan, it heads to the governor’s desk for signature or veto. The bill becomes law upon the governor’s signature or without the governor’s signature if the requisite time passes with no action. If he vetoes the plan, however, the House and Senate must muster up enough votes to override for the plan to become law.

For years, South Carolina’s districting plans were traditionally subject to preclearance from the Civil Rights Division of the U.S. Department of Justice.^[10] Alternatively, the state could file a declaratory judgment action in the U.S. District Court for the District of Columbia seeking preclearance. But the coverage formula set out in Section 4(b) of the Voting Rights Act was struck down in 2013.¹¹ The U.S. Supreme Court found this was no longer a constitutional remedy.¹² As Justice Ginsburg noted in dissent, Section 5 is now “immobilized” without that formula.^[13] Thus, the effect is that South Carolina is no longer required to send its plan up the flagpole to Washington, D.C. for review prior to implementation. Instead, these plans are only subject to challenges in state and federal court.

Challenges to districting plans

At the outset, it is important to note that voters did not always have the right to challenge redistricting plans. For years, the U.S. Supreme Court stayed out of redistricting altogether, taking the position that “[c]ourts ought not to enter this political thicket.”^[14] As explained below, however, this later changed.

Today, although plaintiffs may file redistricting challenges in state court, the overwhelming majority of these claims are fled in federal court. The state court claims are usually tethered to some provision of state law or a state’s constitution. In League of Women Voters of Florida v. Detzner, for instance, voters challenged the Florida legislature’s redistricting plan on the ground that it violated the fair districts amendment to the Florida constitution.¹⁵ This case was fled in state circuit court and ultimately resolved by the Supreme Court of Florida.¹⁶ In Pennsylvania, however, plaintiffs even fled a challenge to Congressional districts in state court, and the Supreme Court of Pennsylvania struck down the plan on state constitutional grounds.¹⁷ That said, constitutional challenges to Congressional districts are normally heard by three-judge district courts with a right of appeal to the U.S. Supreme Court.¹⁸

The primary line of redistricting challenges has focused on race. In 1960, Alabama voters challenged a racial gerrymander on the ground that lawmakers had drawn African American voters out of the municipal boundary line to prevent them from voting in city council elections.¹⁹ The U.S. Supreme Court struck down the plan on equal protection grounds.²⁰ Shortly thereafter, the Court extended the reasoning of Gomillion v. Lightfoot to Congressional districts.²¹ The Court found these gerrymanders impermissibly discriminated on the basis of race, and therefore, violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.²²

Another major challenge to a redistricting plan came out of Tennessee in 1962. In Baker v. Carr, voters complained that Tennessee’s districting plan was predicated upon census data that was 60 years old and no longer reflective of the state’s population distribution.²³ The plaintiffs’ population inequality claim was likewise rooted in equal protection principles.²⁴ Finding the plaintiffs stated a justiciable claim, the Court reversed the district court and held the districting plan violated their rights under the Equal Protection Clause.^[25] Two years later, the Court extended this reasoning to malapportioned Congressional districts in what is now known as a “one person, one vote” challenge, holding Article I, § 2 of the U.S. Constitution requires that “one man’s vote in a congressional election is to be worth as much as another’s.”²⁶

At a more fundamental level, however, plaintiffs have often struggled to open the federal courthouse doors to pursue constitutional challenges to redistricting plans. And the Court has decided that both voters and governmental entities failed to meet the threshold requirement of standing in these cases. Just this term, the Court foreclosed the Virginia House of Delegates from pursuing a unilateral challenge to a federal court’s ruling on its districting plan.²⁷ The Court held “that the House, as a single chamber of a bicameral legislature, has no standing to appeal the invalidation of a redistricting plan separately from the State of which it is a part.”

Last term, the Court flirted with a partisan gerrymandering claim, but punted on the question of standing.²⁸ The Court found the plaintiffs had no standing to challenge districts in Wisconsin’s redistricting plan other than the districts in which they resided.²⁹ Thus, the question of whether partisan gerrymandering claims are within the ken of the federal judiciary—though not long for this world—would have to wait another day.

History of partisan gerrymandering

Partisan gerrymandering is not a practice solely associated with the Democratic Party or the Republican Party, nor is it isolated to South Carolina. To be clear, both political parties engage in partisan gerrymandering all over the country at each level of government—from seats on the local school board all the way to Congress. The political identity of those who complain about excessive partisan gerrymandering, however, varies greatly among jurisdictions and largely depends upon who is in power.

But as Chief Justice John Roberts recognized, “Partisan gerrymandering is nothing new. Nor is frustration with it. The practice was known in the Colonies prior to Independence, and the Framers were familiar with it at the time of the drafting and ratification of the Constitution.”³⁰ Indeed, partisan gerrymandering was at play in our nation’s first Congressional elections in 1789.³¹

Fast forward almost two centuries, and plaintiffs finally began acting on their frustrations by challenging redistricting plans in federal court in 1973.³² For years, the Court has struggled to come up with a workable standard for deciding partisan gerrymandering claims. Although identifying the presence of partisan gerrymandering was easy, answering the question of when it has gone too far was not. After all, “[p]artisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power or influence,” and they “invariably sound in a desire for proportional representation.”^[33]

Over the years, the Court has heard partisan gerrymandering challenges out of Connecticut, Indiana, Pennsylvania, Texas, and Wisconsin. In Gaffney v. Cummings, the Court “rejected an equal protection challenge to Connecticut’s redistricting plan, which ‘aimed at a rough scheme of proportional representation of the two major political parties’ by ‘wiggl[ing] and joggl[ing] boundary lines’ to create the appropriate number of safe seats for each party.”^[34] The Court upheld the redistricting plan, finding the process “inevitably has and is intended to have substantial political consequences.”³⁵

The Court confronted its first “packing and cracking” challenge 13 years later. In Davis v. Brandemer, the plaintiffs argued “Indiana Republicans had cracked and packed Democrats in violation of the Equal Protection Clause.”³⁶ “Cracking means dividing a party’s supporters among multiple districts so that they fall short of a majority in each one. Packing means concentrating one party’s backers in a few districts so that they win by overwhelming margins.”^[37] Although a majority of the Court found the claim justiciable, the justices were sharply divided over which standard to apply and could not form a majority to adopt one.^[38] In the end, however, the Court concluded the plaintiffs failed to prove the Indiana plan violated the Constitution.³⁹

In Vieth v. Jubelirer, a deeply divided Court was unable to determine whether the political question doctrine prevented courts from hearing partisan gerrymandering claims.⁴⁰ Nevertheless, Justice Anthony Kennedy—the Court’s perennial swing vote—did not foreclose the possibility that a judicially manageable standard could be crafted.⁴¹ Indeed, he left open the question of whether another case may present the right set of facts and a workable standard to remedy this constitutional infirmity. ⁴² But the Court once again was unable to agree upon a standard in League of United Latin American Citizens v. Perry.⁴³

Many Court observers thought the Court would finally address the question and enunciate a standard in Gill v. Whitford.⁴⁴ As noted above, however, the Court unanimously determined the plaintiffs did not have standing to challenge the entire Wisconsin plan.⁴⁵ When Justice Kennedy subsequently retired from the Court, partisan gerrymandering claims faced an uncertain future. Justice Kennedy’s concurrence left a glimmer of hope for opponents to the practice of partisan gerrymandering. Gill proved to be their last chance.

Major recent partisan gerrymandering cases

It did not take long for the issue to return to the U.S. Supreme Court. In 2019, the Court consolidated Rucho v. Common Cause and Lamone v. Benisek for oral argument and consideration. Voters and plaintiffs in those cases challenged North Carolina’s and Maryland’s redistricting plans, arguing they were unconstitutional partisan gerrymanders.⁴⁶ While the North Carolina plaintiffs claimed their state’s plan discriminated against Democrats, the Maryland plaintiffs claimed their state’s plan discriminated against Republicans.⁴⁷

The plaintiffs raised a number of federal constitutional claims, arguing the plans violated (1) the Equal Protection Clause of the Fourteenth Amendment by intentionally diluting the voting strength of the minority party’s voters; (2) the First Amendment by retaliating against supporters of the minority party’s candidates based upon their political beliefs; (3) Article I, § 2 of the U.S. Constitution by not allowing the people to choose their elected representatives in Congress, not the other way around; and (4) the Elections Clause in Article I, § 4 of the U.S. Constitution by exceeding the authority delegated to the states to prescribe the time, place and manner of Congressional elections.⁴⁸

Tracing the history of partisan gerrymandering back to the nascent days of our republic, the Court first recognized that the practice has been among us for quite some time.^[49] But plaintiffs did not begin formally challenging partisan gerrymandering until the early 1970s.⁵⁰ In the 45 years that followed, the Court’s “considerable efforts in Gaffney, Bandemer, Vieth, and LULAC [left] unresolved whether claims [of legal right] may be brought in cases involving allegations of partisan gerrymandering.”⁵¹ As Justice Kennedy had cautioned in Vieth, though, any standard governing such claims would have to be “clear, manageable, and politically neutral.”⁵² In other words, the Court would have to develop a standard by which it could decide “how much partisan dominance is too much.”⁵³

A majority of the Court found it impossible to craft a judicially manageable standard governing whether to strike down a redistricting plan as an unconstitutional partisan gerrymander.⁵⁴ In the majority’s view, determining how much is too much would require federal courts to answer a non-justiciable political question that is outside the competence of the judiciary.⁵⁵ At bottom, the majority reasoned, the plaintiffs were complaining the redistricting plans were unconstitutional because they made “it too difficult for one party to translate statewide support into seats in the legislature.”^[56]

Noting that its jurisprudence had “foreclose[d] any claim that the Constitution requires proportional representation,” the Court found the plaintiffs were therefore asking “the courts to make their own political judgment about how much representation particular political parties deserve—based on the votes of their supporters—and to rearrange the challenged districts to achieve that end.”⁵⁷ The Court rejected this claim, holding that “federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so.”⁵⁸ The Court observed that deciding among competing visions of fairness created political questions, not legal ones.⁵⁹ Because partisan gerrymandering claims raise political questions beyond the competence of the federal courts, the Court held they are nonjusticiable and foreclosed any such claims in the future.⁶⁰

Justice Elena Kagan dissented, acknowledging that “partisan gerrymandering goes back to the Republic’s earliest days,” but arguing that “big data and modern technology” have made “today’s gerrymandering altogether different from the crude map drawing of the past.”⁶¹ According to Justice Kagan, as a result, gerrymanders are “far more effective and durable than before, insulating politicians against all but the most titanic shifts in the political tides.”⁶² Justice Kagan argued partisan gerrymandering amounts to rigging elections.^[63] In her view, the Court was abdicating its responsibility to say w hat the law is by finding partisan gerrymandering claims present nonjusticiable political questions, ignoring “grievous constitutional harms” in the process.⁶⁴

But a majority of the Court disagreed. The Court held that “[f]ederal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”⁶⁵ After all, the Court reasoned, where would it end?⁶⁶ The parties were asking the Court to expand judicial authority “into one of the most intensely partisan aspects of American political life.”⁶⁷ And the Court noted this “intervention would be unlimited in scope and duration—it would recur over and over again around the country with each new round of districting, for state as well as federal representatives.”⁶⁸ This proved too much for the Court.

Taking an introspective look at its role within our constitutional framework, the Court felt it was particularly inappropriate for the federal judiciary—the only unelected and politically unaccountable branch of government—to take on “such an extraordinary and unprecedented role.”⁶⁹ The Court declined to do so. And thus, partisan gerrymandering claims are no longer with us—at least in federal court.

What this means for South Carolina in 2020

The Court did not shelter all re-districting plans from constitutional scrutiny. To be sure, the Court still has the authority—indeed the duty—to ensure states’ redistricting plans comply with racial gerrymandering principles and the fundamental tenet of one man, one vote.⁷⁰ But absent some textual basis, whether it be in a state or federal statute or constitution, the federal courts are without jurisdiction to consider partisan gerrymandering challenges.⁷¹ So what does that mean for South Carolina?

As a practical matter, lawmakers no longer have to rely upon other criteria to shield the fact that partisanship factored into the redistricting process. The Court basically accepted that it always had been, and picking political winners was not within the competence of the federal courts. Therefore, lawmakers will likely be much more open about the political considerations that went into each redistricting plan.

Presumably, we will continue to see challenges to redistricting plans at both the state and local level. With partisan gerrymandering challenges no longer in the mix, though, expect to see more racial gerrymandering challenges fled. Folks will likely attempt to blend these two challenges. In other words, a partisan gerrymandering challenge could appear in federal court under the guise of a racial gerrymandering challenge—a Trojan horse of sorts. After all, while we may not like to admit it, the line between race and politics can become blurry when it comes time to draw districts.

When looking at a “majority– minority district,”⁷² for example, who’s to say a given district is not a mere product of geography, population makeup, an attempt to maintain communities of interest, or some other enumerated race-neutral criterion? The Voting Rights Act gives states some breathing room to draw race-based districts, so long as they meet the “narrow tailoring” requirement and show “a strong basis in evidence” for concluding they would transgress the Act if they did not draw race-based district lines.⁷³ But when, despite race-neutral factors, does a majority–minority district in the Pee Dee drawn to favor the Democratic Party give rise to an unconstitutional racial gerrymander? Likewise, when does a predominately white district in the Upstate drawn to favor the Republican Party cross the line? These difficult questions are still very much in play, but partisan gerrymandering is not.

In Rucho, the Court noted it was not condoning “excessive partisan gerrymandering” or “condemn[ing] complaints about districting to echo into a void.”⁷⁴ Indeed, several states have taken creative measures to combat partisan gerrymandering.⁷⁵ Some have formed independent redistricting commissions.⁷⁶ Others have appointed a state demographer or passed state constitutional amendments to expressly forbid the process.⁷⁷ While these are certainly potential options, it is unclear whether they will gain much traction in South Carolina.

Partisan gerrymandering aside, given the hyperpartisan environment mentioned above, we can expect to see increased voter turnout in the 2020 elections because grassroots organizations are laser-focused on redistricting and realize the importance of who is in office when these plans get drawn in 2021. Likewise, when it comes time for citizen participation in the map drawing process, we can expect greater involvement on that front as well.

Another major challenge our map drawers will face this cycle is the significant population increase and shift in South Carolina. The coast and suburbs of Charlotte have experienced rapid growth in the last decade. This will have an appreciable impact on how districts are drawn in these areas and surrounding counties. Further, some have rumored South Carolina to be in contention for gaining yet another seat in Congress, which would have a huge bearing on Congressional redistricting. And don’t forget about seats in the General Assembly, municipal and county councils, and local school boards—these will face significant changes too.

So get your popcorn ready, folks. While partisan gerrymandering claims may be off the table in federal court, this next round of redistricting—as well as the inevitable ensuing litigation—promises to be quite interesting.

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Notes:

[1] See Rucho v. Common Cause, No. 18-422 (Sup.Ct. June 27, 2019); Lamone v. Benisek, No. 18-726 (Sup.Ct. June 27, 2019).

[2] Rucho, slip. op. at 33–34.

[3] S.C. con St. art. III, §§ 3, 4.

[4] S.C. Code Ann. § 4-9-90 (Supp. 2017).

[5] See generally U.S. Census Bureau, Decennial Census of Population and Housing, https://www.census.gov/programs-surveys/decennial-census/about.html (last visited July 24, 2019).

[6] See 13 U.S.C. § 141(c) (2012).

[7] S.C. CONST. art. III, §§ 3, 4.

[8] S.C. H. of Reps., Judiciary Comm., Election Laws Subcomm., GuideLines and criteria for Cong. and Legis. Redistricting (2011).

[9] S.C. Sen. Judiciary Comm., Redistricting GuideLineS (2011).

[10] See 42 U.S.C. § 1973c; 28 C.F.R. § 51.27.

[11] See Shelby County v. Holder, 133 S.Ct. 2612 (2013). For a more detailed discussion of preclearance under the Voting Rights Act, see John G. Tamasitis, “Things Have Changed in the South”: How Preclearance of South Carolina’s Voter Photo ID Law Demonstrates that Section 5 of the Voting Rights Act is No Longer a Constitutional Remedy, 64 S.C.L. REV. 959 (2013).

[12] Holder, 133 S.Ct. at 2622–28.

[13] Id. at 2632 n.1.

[14] Colegrove v. Green, 328 U.S. 549, 556 (1946).

[15] 172 So.3d 363, 415–16 (Fla. 2015).

[16] See id.

[17] See, e.g., League of Women Voters of Pa. v. Pennsylvania, 181 A.3d 1083, 1084 (Pa. 2018).

[18] See 28 U.S.C. §§ 2284(a) & 1253.

[19] Gomillion v. Lightfoot, 364 U.S. 339, 340 (1960).

[20] Id. at 348.

[21] Wesberry v. Sanders, 376 U.S. 1, 18 (1964).

[22] Id.

[23] Baker v. Carr, 369 U.S. 186, 192 (1962).

[24] Id. at 193–94.

[25] Id. at 237.

[26] Wesberry, 376 U.S. at 18.

[27] Va. House of Delegates v. Bethune-Hill, 139 S.Ct. 1945 (2019).

[28] Gill v. Whitford, 138 S.Ct. 1916, 1933–34 (2018).

[29] Id. at 1930.

[30] Rucho, slip op. at 8.

[31] Id.

[32] Id. at 13.

[33] Id. at 3.

[34] Id. at 13.

[35] Id.

[36] Davis v. Bandemer, 478 U.S. 109, 116–17 (1986).

[37] Gill, 138 S.Ct. at 1924.

[38] Rucho, slip op. at 13.

[39] Id. at 14.

[40] Vieth v. Jubelirer, 541 U.S. 267, 272–73 (2004).

[41] Rucho, slip op. at 14.

[42] Id.

[43] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 414 (2006).

[44] See, e.g., Scott Bomboy, A Landmark Gerrymandering Case Heading Toward the Court’s Next Term, constitution daily, https:// constitutioncenter.org/blog/a-landmark-gerrymandering-case-heading-toward-the-courts-next-term (last visited July 24, 2019).

[45] Gill, 138 S.Ct. at 1930.

[46] Rucho, slip op. at 1.

[47] Id.

[48] Id.

[49] Id. at 8.

[50] Id. at 13.

[51] Id. at 14.

[52] Id. at 15 (citing Vieth, 541 U.S. at 306–08).

[53] Id. (citing Perry, 548 U.S. at 420).

[54] Id.

[55] Id.

[56] Id. at 16.

[57] Id.

[58] Id. at 17.

[59] Id. at 19.

[60] Id. at 7.

[61] Id. at 9 (Kagan, J., dissenting).

[62] Id. at 10 (Kagan, J., dissenting).

[63] Id. at 8 (Kagan, J., dissenting).

[64] Id. at 13–14 (Kagan, J., dissenting).

[65] Id. at 30.

[66] Id.

[67] Id. at 31.

[68] Id.

[69] Id.

[70] Id. at 33–34.

[71] Id.

[72] See Perry, 548 U.S. at 430.

[73] Cooper v. Harris, 137 S.Ct. 1455, 1464 (2017).

[74] Rucho, slip op. at 31.

[75] Id. at 32.

[76] See, e.g., Colo. Const. art. V, §§ 44 & 46; Mich. Const. art. I V, § 6.

[77] See, e.g., Mo. Const., art. III, § 3; Fla. Const. art. III, § 20(a).

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