Redistricting and the Courts

Published date01 April 1995
Date01 April 1995
Subject MatterArticles
Judicial Activism in the 1990s
University of Wisconsin-Milwaukee
This article assesses the impact of three types of change factors—legal, political, and techno-
logical—on increases in litigation and judicial activism in the congressional and state legislative
redistricting arena of the 1990s. Analyzing a data set composed of redistricting outcomes in the
states, the author demonstrates that litigation challenging redistrictings is on the increase and
that judicial activism has also grown. Judicial activism has occurred particularly where the courts
have declared political impasses to exist and have imposed court-drawn plans. The author concludes
by discussing new developments in law coming out of the recent redistricting litigation.
Judicial activism in congressional and state legislative redistricting
occurred at unprecedented levels during the 1990s round of redistrict-
ings by state governments. More states faced litigation than in the
previous decade, more court-drawn plans were implemented, and in
some states the plans were attacked in multiple suits brought by
different parties with different agendas. In the states covered wholly
partly by Section 5 of the U.S. Voting Rights Act, the aggressiveness
of the Voting Rights section of the Department of Justice (DOJ) played
a role in this litigation, sometimes as a party, and other times as an
intervenor or amici curiae. The range of issues raised in each suit was
broader than before, resulting in pressure on the federal court system
to convene a larger than usual number of three-judge panels to handle
Author’s Note: An original version of this article was presented at the 1994 Hendricks Sympo-
sium on Legislative Districting in the 1990s, University of Nebraska, Lincoln. I thank John
Comer and Robert F. Sittig for inviting me to participate in the symposium and Michael W. Combs
for his useful comments on the article. I am particularly grateful also to Emily Van Dunk, my
research assistant at the University of Wisconsin-Milwaukee, who assisted me with data
collection for this article. I also wish to thank Wayne Arden, Kim Brace, and Lisa Handley of
Election Data Systems, Washington, DC, and Tim Storey of the National Conference of State
Legislatures, Denver, CO, for their willingness to keep me up to date on redistricting activities
in the states. Any errors of commission or omission are mine alone.
AMERICAN POLITICS QUARTERLY, Vol 23 No 2, Apnl 1995 204-228
1995 Sage Pubhcations, Inc

the cases. All in all, the decade of the 1990s displayed more judicial
activism than the decade of the 1980s with no promise of an end to
litigation (see Butler and Cain 1992, and Hardy, Heslop, and Blair
1993, for excellent discussions of the congressional and state legisla-
tive redistrictings of the 1980s).
The purposes of this article are to document this increased activism,
to account for the reasons for increased judicial consideration and
intervention in redistricting controversies, and to generalize on the
points of new law established by the appellate courts of the United
States and the states in relationship to redistricting during the early
1990s. The unit of analysis for this article is the state and the amount
of state legislative activity in enacting congressional, state senate, and
state house plans. In addition, the focus is on the cases brought in each
state seeking to influence the outcome of the redistricting process.
Cases are examined to determine the grounds for the suits and whether
the plaintiffs who brought the suits were successful in achieving their
goals through the litigation.
To account for the increased level of litigation and judicial activism
in the redistricting arena, I examine several possible factors. Changes
in the legal environment are considered along with changes in the
political and technical environment in which the redistrictings occur.
Special notice is given the role of the Voting Rights Act and the
national political parties in fostering the increases in litigation. And
special attention is given to the conflict between federal and state
courts in resolving the redistricting controversies.
When the courts first entered the political thicket of redistricting in
the 1962 case of Baker v. Carr (369 U.S. 186), the questions of who
had standing to sue and what grounds needed to be alleged were easy
to answer. At that point in time a potential plaintiff had to live in an
overpopulated district and allege that his or her vote was devalued by
the drawing of the district lines. From a relatively limited definition
of standing and grounds to sue, we have today a circumstance in which
almost anyone has standing to sue and a multiplicity of grounds may

be alleged. To understand how the law and politics of redistricting has
shifted over the past 30 or so years, I examine changes in the legal,
political, and technical environment surrounding congressional and
state legislative redistricting.
Very near the end of the 1980s round of the congressional and
legislative redistricting, Section 2 of the Voting Rights Act was
amended and strengthened in 1982 to create a &dquo;results&dquo; test. This
amendment was the reaction of the U.S. Congress to the U.S. Supreme
Court’s decision in Bolden v. City ofMobile (446 U.S. 55,1980), which
held that to win a voting rights suit plaintiffs had to prove intentional
discrimination in a constitutional challenge. Although the Section 2
took effect in late 1982, congressional and state legislative
redistrictings in the 1980s were mostly unaffected. Notable exceptions
in the congressional arena were the Major v. Treen (574 F. Supp. 325,
E.D. La., 1983) case in Louisiana and the Jordan v. Winter (604 F.
Supp. 807, N.D. Miss., 1984) case in Mississippi. In both states the
federal courts overturned state-adopted plans and ordered the state
legislatures to redraw the lines to create districts to strengthen the
electoral power and representation of Black individuals.
Amended Section 2 of the Voting Rights Act did not have much
impact on the state legislative redistrictings of the 1980s until the
Thornburg v. Gingles (478 U.S. 30, 1986) decision of the U.S. Su-
preme Court, setting out the standards for proving a violation of
Section 2 in federal court. The Gingles decision resulted in the redraw-
ing of state senate and state house lines in parts of North Carolina.
Following on the Gingles decision of the U.S. Supreme Court, suc-
cessful challenges occurred under Section 2 in Arkansas (Smith u Clinton
678 F. Supp. 1310, E.D. Ark., 1988, and Jeffers v. Clinton 730 F. Supp.
196, E.D. Ark., 1989).
In addition to the changes in the legal environment promoted by the
congressional adoption of amended Section 2 and the Supreme Court
interpretation in Gingles of the legal meaning of Section 2, a contro-
versy within the DOJ in the mid-1980s over how to relate amended
Section 2 to extended Section 5 resulted in the adoption in 1987 of a
revised set DOJ regulations governing the submission and handling

of Section 5 submissions from covered jurisdictions. Under the Beer
v. U.S. (425 U.S. 130, 1N76) decision of the U.S. Supreme Court, the
standard to be applied by the U.S. DOJ in reviewing Section 5
submissions was limited to questions of retrogressive effect or inten-
tiunal discrimination. Thus, if a sublnitted electoral change made the
minority community no worse off, the DOJ had to give preclearance
(see Themstrom 1987, for an extensive discussion of Beer). But under
the revised administrative regulations of 1987, the DOJ obligated itself
to determine whether or nut a submitted electoral change would violate
Section 2. The DOJ determined that wherever voting was racially
polarized, a covered state would be required to draw minority-majority
districts This suspect change in the legal environment dictated by a
circumscribed reading ot the 1982 amendments’ legislative history
became the legal doctrine under which the U.S. DOJ would consider
congressional and state legislative plans submitted by covered juris-
dictiulls during the 1990s round of redistrictings. (See Boyd and
Markman r 1983 J for an objective recitation of the legislative history
of the 1982 amendments to the Voting Rights Act.)
Anothei change in the legal environment affecting congressional
and state legislative redistricting occurred in 1986 when the U.S.
Supreme Court decided the Davis v Bandemer (478 U.S. 109, 1986)
case from Indiana. In this case the Supreme Court made partisan
gerrymandering claims justiciable by ruling that the equal protection
clause of the U.S. Coustitution applies to partisan cases. However, the
Supreme Court dismissed the Indiana plaintiffs’ appeal, ruling that
evidence was lacking to support the claim of partisan gerrymandering.
Subsequently, in Badham v Eu (109 U.S. 829, 1989) the Supreme
Court aftlrmed a lower court decision throwing out a partisan gerry-
mandering claim from California that the Democrats in the state had
unfairly drawn the state’s congressional districts to minimize Repub-
lican success under the plan. Although no plaintiff has sustained a
partisan gerryrnandering claim in federal court against a congressional
or state legislative plan, the Bandemer decision made clear that
partisan gerrymandering claims are justiciable, an addition to the legal
envirunment affecting the 1990s round of congressional and state

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