Democrats must understand this issue in order to expand their numbers in Congress.
Racial gerrymandering is a type of gerrymandering in which district lines are redrawn based on racial divisions. Fair representation based on race is considered by some to be a compelling public interest, notably Congress in the passage of the Voting Rights Act (VRA) and some key amendments to the act. A particular race loses its capacity for electing officials in a way such that fair representation is ensured (called diminution in informed parlance) or at least enhanced if district lines are drawn so that voters of that race are highly concentrated in one district or sparsely diffused throughout multiple districts in a way which would dilute their votes. So we should expect challenges to emerge where there exists recognition that minority-controlled districts are inefficiently concentrated or that minority-controlled districts are unformed due to dilution. This is predicated on the assumption that controversy will arise because of race-based differentials in voting preferences, but this assumption may not always hold. This is also predicated on the assumption that voters elected a single at-large representative in each district, which tends to hold in the United States and is supported by the one person, one vote edict of the 1960s.
According to Lani Guinier, the first woman of color to receive tenure at Harvard Law School, the Voting Right Act of 1982 enjoined party leaders to not exclude black-Americans from participation[1]. She says this led to 16 black leaders being elected in 1992 (I might add despite no substantial changes in relative population).
The issue of racial gerrymandering has been heard by the U.S. courts on a number of occasions. It is not insignificant that the responsibility for redistricting formerly resided in the hands of the courts. The following is an interrogation of a sample of court cases on the issue to investigate the relationship of race and gerrymandering. The intent is for there to be a focus on comparing racial gerrymandering in Texas to North Carolina, with North Carolina as a baseline case.
The Shaw v. Reno case originated in North Carolina and was written about by New York University scholar Samuel Issacharoff, who is probably the pre-eminent scholar in the area of gerrymandering. According to NYU School of Law’s Brennan Center for Justice North Carolina’s redistricting process greatly empowers the legislature, who are constrained only by federal and state Constitutional and statutory policy, and does not have any binding rules ensuring minority participation (and by extension racial fairness) (http://www.brennancenter.org/...). Issacharoff says that the Voting Rights Act put minority-controlled districts at issue in decennial redistricting[2].
The facts of the Shaw case were that the 1990 Census created entitlement to an additional seat because of population changes and that same year the state created a redistricting plan with one black-controlled district and then submitted it to Justice Department for evaluation for compliance with the VRA, with the Justice objecting to the plan because of a failure to create a second black-controlled district in a black population center in the southeast portion of the state. This was essentially a case where black votes were diluted by dispersion into majority-controlled districts so that a concentrated black population was not formed as minority-controlled district. The state then attempted to redraw the district map. The new redistricting plan created a second black-dominant district and satisfied Justice but the districts in the plan were drawn so bizarrely in order to patently advantage Democrats that the plan became infamous. The plan was eventually struck down by the Supreme Court. According to Issacharoff the Court’s ruling never satisfactorily resolved the “ultimate issue whether race may ever be justifiably (and affirmatively) relied upon in redistricting”.
According to Issacharoff, “in Shaw, the Court applied strict scrutiny because the shape of the electoral district strongly suggested that the districting plan had relied upon an explicit racial classification”. The application of strict scrutiny requires that the redistricting plan satisfy three properties: 1) it must be a compelling government interest; 2) it must be narrowly tailored; and, 3) it must be the least restrictive means. The strict scrutiny test is a heavy burden and has a history as a tool for striking race-conscious governance policies, though historically these policies were discriminatory rather than affirmative actions for ameliorating historical disadvantage due to institutionalized racism. Less strict tests were applied to “benign” uses of racial classification as in the latter circumstance. However rights-based individualism prevailed as a Constitutional matter over efforts to loosen the stringency of tests which were necessary conditions for race-based policy challenges, though not to the extent preferred by arch-conservatives Rehnquist and Scalia, that is “the rejection of all group-based classifications” based on their reading of the equal rights clause. However, by the time of the Shaw case the law had evolved to a tipping point of the balance of equal protections and VRA and rendered the Court, predominantly, of the impression that all race-based policies must pass the strict scrutiny test. Issacharoff seems concerned about the Court’s “indifference” to the fact that the race-conscious redistricting plan in Shaw was to achieve by positive measure the good represented by ensuring fair electoral representation of minority voters.
Now, moving from N. Carolina in the 1990s to Texas in 2000s an even more egregious rightist abuse of law and politics emerges in historical example. According to the Brennan Center, the LULAC case was about a practice known as re-redistricting, which is a token of partisan gerrymandering and which was used by the Texas legislature under the de facto command of (now disgraced) Tom Delay to ensure Republicans maintained control of the state legislature and was apparently the first example of mid-decade redistricting since the Supreme Court’s one person, one vote proclamation (http://www.brennancenter.org/...). The redistricting plan was challenged in federal district court with the state as the counter-party, and eventually went to the nation’s high Court. According to the Brennan Center, “While the Court failed to conclude that the mid-decade redistricting is unconstitutional, it did find that the redrawing of the boundary lines for one of the districts constituted impermissible vote dilution under the Voting Rights Act.”
Douglas Calidas wrote about the LULAC case in the context of partisan gerrymandering, which was the primary intent of the Texas plan. However, racial gerrymandering was a secondary effect and represented a weak point in the Republicans’ plan. According to Calidas, the judiciary, led by the Supreme Court, determined that partisan gerrymandering court challenges are non-justiciable because there does not exist a “workable judicial standard”[3].
The facts of the case were that, like N. Carolina in 1990, the 2000 Census has entitled Texas to additional Congressional seats due to population changes, and the Texas state Republicans decided to re-redistrict in 2003 in an obvious case of partisan gerrymandering and no less than the lieutenant governor, who was also a state Republican senator, candidly admitted that this was the case. This led to the downfall of six state Democrats and increased margins in the U.S. House for Republicans. The League of United Latin American Citizens (LULAC) was one of many parties who challenged the redistricting plan in court, and the case which eventually reached the Supreme Court. The Court cited the Vieth v. Jubelirer case in which the Court decided that partisan gerrymandering challenges were non-justiciable due to lack of a judicial standard to judge the case on the merits, refused to revisit the Vieth precedent, and therefore upheld the non-justiciability because no sufficient legal standard had emerged.
Calidas states that “the strength of the arguments lodged against judicial review of partisan gerrymandering is overstated.” The LULAC Court refused to draw an obvious distinction between the subject matter of the Vieth case, which involved a one man, one vote compliant decennial Census redistricting plan and an egregious mid-decade re-redistricting plan without epochal precedent under the law. However, the Court did hear the LULAC petitioners’ challenge, under the VRA, that the Texas 2003 redistricting plan effected vote dilution. The Court rendered a partial decision against the state on the matter, signaling its sensitivity to race-conscious political policy.
The primary salient categorical difference between the Shaw case and the LULAC case was in N. Carolina in the 1990s the state essentially effectuated Justice policy which was intentionally in pursuit of a race-conscious outcome, though a positive good was pursued, and in the 2000s in Texas the race-based harm was an unintentional consequence of an extreme, egregious, and inexplicably legally-defensible partisan gerrymander. The insight which is derivable from the comparative analysis of these two cases is two-fold: 1) racial gerrymandering may be the only type of gerrymandering which permits of judicial review in the current legal milieu; and, 2) in both Texas and N. Carolina the power of state legislatures over the redistricting process is, with the exception of racial questions, virtually absolute. In the area of redistricting, and perhaps any other area, racial goods cannot be pursued without passing the trying strict scrutiny test and invidious racial harms cannot be visited upon any party representing a “discrete and insular group”.
A big idea at work here (and one which is per Lani Guinier) is that the application of the VRA put liberal Justice Department officials and Republicans together in an alliance which led to “greater political influence for Republicans” and may have been a fulfillment of President Johnson’s prediction that civil rights legislation would give the South to Republicans[4]. But while the strange bedfellows were made in the 1990s, minorities and Republicans became enemies again over the issue of redistricting in the 2000s, as had been the case in the breakup of the rural legislator monopolies in the 1960s. The epicenter of this was in Texas, and with the 2010 Census showing greater population growth in Texas the mother of all American political wars, at least of the pure political variety, may continue with another battle. The key to victory for minorities and Democrats alike is for a legal principle to emerge from a metastasized corpus of law on the subject matter which will allow the adjudication of partisan redistricting on the merits, which will kill two birds with one stone as instances of racial gerrymandering are subsumed under programs of partisan gerrymandering by the Republicans. Judicial review in America has been a harsh mistress over the years for those who seek human justice through civil rights.
Publications retrieved online:
Guinier, L. (1995, January 8). Don’t Scapegoat the Gerrymander. Retrieved October 30, 2011, from Harvard Law School: http://www.law.harvard.edu/...
Legal Journal Citations in Shorthand Notation:
Calidas, 57 Duke L.J. 1413 *1447
Aleinikoff and Issacharoff, 92 Mich. L. Rev. 588 *588
Web Citations:
http://www.brennancenter.org/...
http://www.brennancenter.org/...
Redistricting map of the infamous “I-85 district” at the time of the Shaw v. Reno filing:
http://en.wikipedia.org/...
[1] (Guinier, 1995)
[2] 92 Mich. L. Rev. 588
[3] 57 Duke L.J. 1413
[4] (Guinier 1995)