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

AuthorBy Vordman Carlisle Traywick, III
PositionVol. 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...

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