Politics as Usual: the Continuing Debate Over Partisan Gerrymandering Schemes in League of United Latin American Citizens v. Perry - Steve Flynn

• Citation: Vol. 58 No. 3
• Publication year: 2007

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Politics As Usual: The Continuing Debate Over Partisan Gerrymandering Schemes in League of United Latin American Citizens v. Perry

In League of United Latin American Citizens v. Perry,¹ the Supreme Court held that a statewide challenge to the Texas State Legislature's mid-term redistricting plan did not violate Section Two of the Voting Rights Act of 1965,² but that the redrawing of district lines in one particular district (District 23) did violate the Act.³ The case leaves open the ability of the Supreme Court to adjudicate political gerrymandering schemes in cases where equal protection claims are made.

I. Factual Background

In 2003 the Republican Party gained control of the Texas state house, senate, and governorship.⁴ The Republicans "'set out to increase their representation in the congressional delegation,'" and to accomplish this goal, they promulgated a plan known as Plan 1374C.⁵ As a result of Plan 1374C, the 2004 Texas Congressional elections brought the Republicans twenty-one of the state's thirty-two congressional seats while also garnering them fifty-eight percent of the popular vote in statewide elections.⁶

Plan 1374C made changes to districts in south and west Texas, the most significant of which involved District 23 and the newly created District 25.⁷ Changes in these districts were challenged as violations of Section Two of the Voting Rights Act of 1965 and the Equal Protection Clause of the Fourteenth Amendment⁸ insofar as it affected the Latino vote.⁹ After the 2002 election, it became apparent that an increasing Latino population in District 23 was going to oust Henry Bonilla, the incumbent Republican candidate from that district. Through Plan 1374C, the legislature divided up the largely Hispanic district, adding voters from largely white, Republican areas. To avoid retrogression, the legislature also created District 25, forming a majority Latino voting district to replace the divided District 23.¹⁰

Soon after Plan 1374C was enacted, the League of united Latin American Citizens ("The League") challenged the plan as an unconstitutional partisan gerrymander that violated Section Two of the Voting Rights Act of 1965 by splitting up largely Hispanic areas for purely partisan gain.¹¹ The district court "entered judgment against [the plaintiffs] on their claims," and the plaintiffs appealed to the Supreme Court.¹² Before the Court heard the case, however, the Court issued its opinion in Vieth v. Jubelirer,¹³ in which a plurality of the Court held that political gerrymandering schemes presented a nonjusticiable issue.¹⁴ The Court then remanded Perry back to the district court for reconsideration in light of Vieth.¹⁵

On remand, the district court, interpreting its mandate to include only claims of political gerrymandering, again rejected the appellant's claims.¹⁶ The Supreme Court granted certiorari.¹⁷

II. Legal Background

The 1990 census resulted in Texas gaining three additional seats in its congressional delegation, bringing its total delegation to thirty seats.¹⁸ When new district lines were drawn in 1991, the Democratic party had control of "both houses in the state legislature, the governorship, and [nineteen] of[Texas's twenty-seven] seats in Congress."¹⁹ The Democrats in the state legislature, fearful that the Republicans would soon constitute the majority of voters in the state, designed a congressional redistricting plan that would favor Democratic candidates.²⁰ The Democrats used computer technology to draw what has been referred to as the "shrewdest gerrymander of the 1990s."²¹ The 1991 plan packed " 'heavily Republican' suburban areas" into just a small number of districts, while keeping Democratic areas just strong enough to ensure continued election of Democratic candidates.²²

Voters who sought to invalidate the plan criticized the 1991 redistrict-ing scheme, claiming that the plan was nothing more than a simple partisan gerrymander, but each of the claims brought by the voters were rejected by the courts.²³ As a result of the 1991 gerrymandering scheme, the Republican Party, despite garnering fifty-nine percent of the vote in the 2000 statewide elections, won only thirteen of the state's thirty congressional seats.²⁴ When it came time to incorporate two additional congressional seats as a result of the 2000 Census, the Republican Party controlled the governorship and the state senate, but not the state house of representatives.²⁵ Due to this division in the legislature, the Texas Legislature was unable to agree on a new redistricting plan that would incorporate the two new seats.²⁶ The courts were brought in to provide a plan, and the litigation resulted in a plan known as Plan 1151C.²⁷ The court in Balderas, which drew the plan, sought to apply "only 'neutral' redistricting standards" in drawing its plan, meaning that no party was to be favored over another, and the court explained that it did not wish to "'und[o] the work of one political party for the benefit of another,'" realizing that the primary authority for the drawing of district lines rested with the legislative branch.²⁸ Plan 1151C resulted in the Democrats retaining a slim majority in the Texas delegation, despite the fact that in the previous election Republicans had gained almost sixty percent of the popular vote.²⁹ Plan 1374C, which scrapped the Balderas plan, is the subject of this case.

A. Introduction: The Voting Rights Act of 1965

Section Two of the Voting Rights Act now states that:

No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees [set forth in this Act].³⁰

A State violates Section Two of the Voting Rights Act if:

[B]ased on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of [a racial or ethnic group] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.³¹

Article I, section 4, of the United States Constitution delegates the duty of reapportionment of districts to the state legislatures.³²

The Voting Rights Act of 1965 was passed "primarily to enforce the [Fifteenth] [A]mendment to the Constitution of the United States and . . . to enforce the [Fourteenth] [A]mendment and [A]rticle I, [S]ection 4."³³ Barriers to voting such as literacy tests and poll taxes had for years been used in a number of states to deny the right to vote to many people because of their race.³⁴ The Act was amended in 1982³⁵ dispos- itively rejecting the position of the Court in Mobile v. Bolden,³⁶ which stated, in a plurality opinion, that proof that a contested electoral practice or mechanism was adopted with the intent to discriminate was necessary in order to establish a Section Two violation.³⁷ The Senate Report that accompanied the 1982 amendments emphasized that the proper inquiry, when examining voter discrimination, was whether the contested electoral practice resulted in a situation that denied a particular group "equal opportunity to participate in the political processes and to elect candidates of their choice."³⁸ After the 1982 amendments, the Act required only a showing that a particular electoral practice or mechanism had a discriminatory effect or result on a particular group in order to establish a Section Two violation.³⁹

B. Development of Political Gerrymandering Jurisprudence Under Section Two Following the 1982 Amendments

The Supreme Court construed Section Two of the Voting Rights Act, as amended June 29, 1982 (the Act's current form), for the first time in Thornburg v. Gingles,⁴⁰ a case in which black voters challenged several North Carolina voting districts, claiming that the districts impaired black voters' "ability to elect representatives of their choice."⁴¹ In Gingles the Court identified three factors that must be present in order for a minority group to bring a cognizable claim of vote dilution of a minority bloc.⁴² Initially, "the minority group must be able demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district."⁴³ If this were not true, as would be the case in a "substantially integrated" district, then the makeup of the district cannot be necessarily shown to be the cause of the inability of minority voters to elect their preferred candidates.⁴⁴ Second, the minority group must be shown to be "politically cohesive," meaning that the majority of minority members in the district tend to vote for candidates of a particular political affiliation.⁴⁵ Third, "the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it—in the absence of special circumstances, such as the minority candidate running unopposed—usually to defeat the minority's preferred candidate."⁴⁶

Eight years later, in Johnson v. De Grandy,⁴⁷ the Court rejected a so-called "safe harbor" rule that would have precluded challenges to state gerrymandering schemes where the percentage of single-member districts in which minority voters formed an effective voting bloc mirrored the minority voters' percentage of the relevant population.⁴⁸ In addition, the Court concluded that "the rights of some minority voters . . . may [not] be traded off against the rights of other members of the same minority class," meaning that Section Two violations in one district could not be remedied by the creation of another majority-minority district.⁴⁹ Finally, the Court held that proportionality is not an affirmative defense to a Section Two challenge because "[n]o single statistic provides courts with a...