The court's missed opportunity to draw the line on partisan gerrymandering: Lulac v. Perry.

• Author: Brooks, Aaron

Over the past decade, the growing polarization of the American electorate has led state political parties to redouble efforts to implement politically advantageous electoral maps. (1) Majority parties regularly adopt irregularly shaped districts in an attempt to pack opposition voters into a few districts while setting up their own "safe" legislative seats--a process popularly known as "gerrymandering." (2) The Supreme Court has addressed the practice twice. In Davis v. Bandemer, (3) the Court established that partisan gerrymandering presents a justiciable controversy, but it failed to settle on a test or standard to determine the constitutionality of any given plan. (4) After Bandemer, emboldened state legislatures created increasingly extreme districting maps with the purpose of entrenching the favored political party. The practice has escalated to the point that one commentator now believes that there are as many as four hundred safe congressional seats. (5) Eighteen years after Bandemer, the Court dismissed a similar case, Vieth v. Jubelirer, (6) because it was not able to agree on a workable standard to apply. (7) Vieth did not leave much hope of resolution, as four Justices advocated three separate approaches for adjudicating partisan gerrymandering claims, (8) four other Justices concluded that these claims presented a nonjusticiable controversy, (9) and one Justice found Vieth itself to be nonjusticiable, but hesitated to declare justiciability for all such suits. (10)

Last Term, in League of United Latin American Citizens v. Perry (LULAC), (11) the Supreme Court attempted for the third time to create a reliable standard for adjudicating claims of political gerrymandering. Although the Court held that a redistricting plan violated section 2 of the Voting Rights Act with respect to a specific district, it once again dismissed appellants' claims of statewide partisan gerrymandering because of the absence of a workable standard. (12) It seemed plausible that the Court's new composition would lead to the resolution and consensus lacking in Bandemer and Vieth, but that hope proved to be misplaced; instead, the present Court gave no new direction for the political branches or lower courts. If anything, LULAC's limited majority opinion and six separate concurrences plunged partisan gerrymander jurisprudence deeper into confusion. The third failure to delineate a workable framework, along with the constitutional delegation of districting to Congress and the States, should have led the Court to rule partisan gerrymandering nonjusticiable as a "political question."

In 1990, Texas Democrats capitalized on their control of the state legislature by enacting a redistricting plan designed to favor Democratic candidates. (13) The move effectively neutralized Republicans' growing success in statewide elections; in 2000, Republicans carried 59% of the statewide vote but won just 13 of the 30 House seats. (14) After the 2000 census, a split legislature forced the implementation of a court-ordered plan (Plan 1151C) to comply with the one-person, one-vote requirement. (15) Hesitant to be seen as politically motivated, the architects of Plan 1151C left the 1991 Democrat-drawn map largely in place, which culminated in a 17-15 Democratic advantage in House seats after the 2002 elections. (16)

Republicans gained control of both houses of the state legislature in 2003 and immediately set out to address their electoral disadvantage. (17) After a lengthy and infamous partisan struggle, the legislature enacted a new map (Plan 1374C) which enabled Republicans to parlay 58% of the 2004 statewide vote into a 21-11 advantage in House seats. (18) Opponents of the plan brought suit, alleging that the plan, both generally and with respect to two specific districts, violated the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and section 2 of the Voting Rights Act of 1965. (19)

A three-judge panel of the district court rejected the plaintiffs' claims that the plan should be invalidated as an unconstitutional partisan gerrymander. (20) With appeal pending, the Supreme Court vacated the district court's judgment and remanded the case for further consideration in light of the Court's ruling in Vieth. (21) The district court again entered judgment for the defendants, (22) and the Supreme Court took the case on appeal.

The Supreme Court affirmed in part, reversed in part, vacated in part, and remanded. (23) Writing in part for a Court majority, (24) in part for a plurality, (25) and in part for himself, (26) Justice Kennedy relied on Bandemer to rule that an equal protection challenge to a political gerrymander presented a justiciable case or controversy, although he conceded that the Court could not agree on a substantive standard. (27) Justice Kennedy defined the key inquiry as "whether appellants' claims offer the Court a manageable, reliable measure of fairness for determining whether a partisan gerrymander violates the Constitution." (28) Justice Kennedy considered and rejected appellants' proposed "sole-intent" (29) and "symmetry" (30) standards. Appellants' argument, at its core, was "that a legislature's decision to override a valid, court-drawn plan mid-decade is sufficiently suspect to give shape to a reliable standard for identifying unconstitutional political gerrymanders;" (31) Justice Kennedy disagreed and thus refused to uphold appellants' statewide gerrymander claims.

Moving to the district-specific gerrymander claims, the Court held that the Texas legislature's redrawing of District 23 violated section 2 of the Voting Rights Act. (32) The Court held that all three preconditions of vote dilution were present to support a section 2 violation, and the totality of the circumstances established a denial of opportunity. (33) By finding a section 2 violation, the Court failed to reach appellants' First Amendment and Equal Protection claims with respect to District 23. (34) The Court rejected the section 2 claim with regard to District 24 because the minority group could not meet the requirement of demonstrating an ability to elect a candidate of its choice...