Jeremy Denton Adams

Writing Sample

Essay written for a Constitutional Law II class.

Partisan Gerrymandering: A Judiciary Failure of Standards and Scrutiny J. Denton Adams

To a political party that takes control of a state legislature in advance of redistricting, the lure of gerrymandering seems irresistible. It is an opportunity for the controlling party to cement its power, at least from census to census. To the minority party, however, such districts are viewed as unfair abuses of power.1 These aggrieved parties have often turned to the Equal Protection Clause of the Fourteenth Amendment for remedy, alleging that their voting strength has been diluted. However, if their arguments do not include allegations of racial gerrymandering, they usually fail.2 The persistent failure of such claims is not because partisan gerrymandering has been held to be flatly nonjusticiable.3 Rather, it is because no manageable standard has been recognized.4 Part I of this essay gives a brief history of partisan gerrymandering cases and the law that has developed around them. Part II looks at the arguments against justiciability of partisan gerrymandering, focusing particularly on those presented in two prominent cases. It will also point to areas of these arguments that would serve better in discussions of what scrutiny to apply in gerrymandering cases. Part III argues that it is time to revisit the importation of racial gerrymandering standards to partisan gerrymandering cases, using a rational basis evaluation to assess them. Part IV briefly seeks to demonstrate manageability, applying a universal gerrymandering standard to a district that was the subject of a number of racial gerrymandering cases. It then goes on to discuss the practical effects of recognizing a standard for partisan gerrymandering claims.

I. A Brief History

The law surrounding the drawing of district lines has evolved into a complex web, anchored to issues ranging from basic electoral fairness to race. 5 Due in part to their inherent complexity, such cases have in the past been seen as nonjusticiable political questions.6 That view has eroded over time. In
1 2 3 4 5 6 Samuel Issacharoff, Gerrymandering and Political Cartels, 116 HARV. L. REV. 593, 596 (2002). Political Gerrymandering 2000-2008: "A Self-Limiting Enterprise?, 122 Harv. L. Rev. 1467 (2009). Davis v. Bandemer, 478 U.S. 109 (1986). See Id.; Vieth v. Jubelirer, 541 U.S. 267 (2004). E.g. Baker v. Carr, 369 U.S. 186 (1962); Shaw v. Reno, 509 U.S. 630 (1993). See, e.g., Colegrove v. Green, 328 U.S. 549 (1946).

Baker v. Carr, the question of the apportionment of districts was held to be justiciable, and a state's failure to reapportion districts over several decades was found to be a violation of the Fourteenth Amendment's Equal Protection Clause.7 The principle of one person, one vote was subsequently developed in Reynolds v. Sims, protecting against dilution by an imbalanced apportionment scheme.8 [A]n individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State, that court wrote.9 Reynolds also held that the right to vote is a fundamental right and that the debasement or dilution of the weight of a citizen's vote will trigger a strict scrutiny review.10 This prohibition against dilution via imbalanced apportionment, however, does not foreclose all practices that could reduce the voting strength of a group.11 Districts can be painstakingly crafted to give one or several groups substantial voting control, often forging uncannily shaped districts and rendering voters in the minor group effectively powerless. This dilution of voting strength gerrymandering is even embedded in word's definition.12 When race is the predominant factor in such redistricting schemes, they risk of running afoul of the Equal Protection Clause and will face the strict scrutiny of the court.13 Justices have been less enthusiastic about recognizing the justiciability of claims alleging equal protection violations in politically-motivated redistricting schemes14 Several sitting justices still believe that the drawing of district lines without racial components is a political question. The Constitution clearly contemplates districting by political entities ... and unsurprisingly that turns out to be root-and-branch a matter of politics, Justice Scalia wrote in Vieth v. Jubilerer.15 In support of this, they point to language in Baker indicating that nonjusticiable political questions are marked by a lack of judicially discoverable and manageable standards.16 None the less, the court's decision in Davis v. Bandemer that equal protection challenges to the partisan gerrymandering of a district are justiciable remains good law albeit good law on shaky ground.17 This leaves plaintiffs in partisan gerrymandering cases in a significant bind, forced to either argue that judicially discoverable and
7 8 9 369 U.S. 186. Reynolds v. Sims, 377 U.S. 533 (2001). Id. at 568.

10 Reynolds v. Sims, 377 U.S. 533, 556 (1964).

11 Karcher v. Daggett, 462 U.S. 725, 734, n. 6 (1983). 12 BLACK'S LAW DICTIONARY 709-709 (8th ed. 2007) (defining gerrymandering as the practice of dividing a geographical area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition's voting strength). 13 Miller v. Johnson, 515 U.S. 900 (1995). 14 Matthew M. Weiss, Where Do We Draw the Line?: The Justiciability of Political Gerrymandering Claims in Light of League of United Latin American Citizens v. Perry, 41 GA. L. REV. 1053, 1069 (2007). 15 Vieth, 541 U.S. 267 (2004) . 16 Id.; Baker, 369 U.S. 186.. 17 See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 511 (2006); Vieth, 541 U.S. 267; Bandemer, 478 U.S. 109.

manageable standards exist to overcome the political question doctrine or to argue that the Courts substantive notions of manageability and discernibly are mistaken.18

II. Political Questions and Manageable Standards

Under current precedents, the question of justiciability largely hinges on finding standards of adjudication that are discernible and manageable. The major cases in this area Vieth and Bandemer both contain strong arguments that such standards cannot be found. In her opinion concurring in the result in Bandemer, the first decided of the two cases, Justice O'Connor argues that the legislative business of apportionment is fundamentally a political affair.19 In the Vieth plurality opinion, Justice Scalia would hold the same, noting that no manageable standards have developed since Bandemer was decided nearly two decades earlier.20 Though these arguments were so well articulated that they have largely blocked true consideration of political gerrymandering claims since, they are riddled with holes.

A. Justice O'Connor's Argument

To Justice O'Connor, the enterprise of evaluating political gerrymandering claims was an innately flawed process, outside the realm of the judiciary.21 The politically-charged enterprise of drawing electoral boundaries is a critical and traditional part of politics in the United States, she wrote.22 The Framers of the Constitution could not have intended the judicial power to encompass the making of such fundamental choices about how this Nation is to be governed.23 Likewise, Chief Justice Burger, in his opinion concurring in the judgment of the case, believed that the Framers placed responsibility for correction of such flaws in the people rather than the judiciary.24 This originalist argument has its merits. Those drafting the first words of the nation's controlling charter no doubt envisioned and understood that politics would play a role in the process. Relying on this argument, however, pays little heed to the fact that these were the same people who counted each black as three-fifths a person in the line-drawing process.25 This is literally the type of discrepancy which prompted the Fourteenth Amendment. The question, rather, should be whether the drafters of the
18 Joshua S Stillman, The Costs of "Discernible and Manageable Standards" in Vieth and Beyond, 84 N.Y.U. L. REV. 1292, 1320 (2009). 19 Bandemer, 478 U.S. at 145 (O'Connor, J., concurring in result). 20 Vieth, 541 U.S. at 306. 21 Bandemer, 478 U.S. at 147. 22 Id. at 145. 23 Id. 24 Id. at 144. 25 U.S. CONST. art. I, 2.

Fourteenth Amendment intended the judiciary to step in when one group is dominated by another. It is almost unfathomable to argue that they did not, suggesting that the distinction between racial and partisan gerrymandering is an artificial one. Justice O'Connor then turns to the qualities of race and partisan affiliation, stating that: [A] racial minority group is characterized by 'the traditional indicia of suspectness' and is vulnerable to exclusion from the political process. ... In these circumstances, the stronger nexus between individual rights and group interests, and the greater warrant the Equal Protection Clause gives the federal courts to intervene for protection against racial discrimination, suffice to render racial gerrymandering claims justiciable.26 The major political parties, however, are not eligible for such protection, she states, contending that they cannot claim that they are a discrete and insular group vulnerable to exclusion from the political process by some dominant group: these political parties are the dominant groups.27 This argument neglects the obvious effects of partisan gerrymandering the subjugation of one party for the benefit of the other. If district lines are drawn, time and time again, in a way that prohibits a party from mounting a legitimate challenge against the other rendering their participation effectively moot have they not become a discrete and insular group vulnerable to exclusion from the political process by some dominant group? This type of domination is surely rare, but that is no reason to deny a remedy to those injured by it when it does occur. 28 In addition, this attempt to distinguish between race and political affiliation merely demonstrates the need for differing levels of scrutiny when evaluating gerrymandering claims, as opposed to a substantive requirement for differing standards. As another problem with partisan gerrymandering claims, Justice O'Connor suggests the complexities of avoiding vote dilution among parties are far more dramatic than those of race. Designing an apportionment plan that does not impair or degrade the voting strength of several groups is more difficult than designing a plan that does not have such an effect on one group for the simple reason that, as the number of criteria the plan must meet increases, the number of solutions that will satisfy those criteria will decrease, she wrote.29 Further complicating matters, she argued, was that race is an immutable characteristic, but voters can-and often do-move from one party to the other or support candidates from both parties.30 Still, it is unclear whether race, at least for redistricting purposes, is all that immutable. The high court appears to have long evaded a true evaluation of what it means to be a member of a particular
26 Id. at 151. 27 Id. at 152. 28 North Carolina Republicans, though relatively proportional to Democrats, failed to gain control of the North Carolina Senate for more than a century something often attributed to gerrymandering by Democrats. See Republicans Roll, THE INSIDER , Nov. 3, 2010. 29 Id. at 156. 30 Id. at 156.

race.31 That leaves Plessy v. Ferguson's one-drop rule as the most guiding principle, and interpretation of that in light of modern district line-drawing leads to a number of significant problems.
32

For the purposes of racial gerrymandering claims, is a man with a traceable lineage to both black

ancestors and Asian ancestors a black man or an Asian man? Should such a person be considered both? Does his black blood override his Asian blood? Is it to be based on a person's self-identification? The U.S. Census, on which those crafting electoral boundaries must rely, depends on self-identification by those surveyed, and offers no substantive definitions on its face about what constitutes race. 33 Race, in that sense, does not seem as inflexible as Justice O'Connor contends. Her argument also includes an implicit suggestion that racial gerrymandering claims are justiciable because race is somehow controlling in how a person votes. Surely this is a fact that people like former Republican National Committee Chairman Michael Steele would contest. With race being neither immutable nor certain in its voting strength, by what measure is it reasonable to assume that party is? 34 On these points, Justice O'Connor's attempts to distinguish racial and partisan gerrymandering fall flat. The plurality opinion in Bandemer recognized these discrepancies: Justice O'Connor's attempt to distinguish this political gerrymandering claim from the racial gerrymandering claims that we have consistently adjudicated demonstrates the futility of such an effort.35 The court points out that Justice O'Connor neither identifies why racial gerrymandering cases are more manageable than partisan ones or what policy decision she rejects that had not already been made in racial gerrymandering cases.36 This seeming inability to truly distinguish the cases shows the flaw in Justice O'Connor's stance it serves better to demonstrate what level of scrutiny should be applied to gerrymandering cases. These discussions of Fourteenth Amendment implications of race and the complexities of gauging dilution among partisan groups could be readily presented instead as arguments for a varied level scrutiny by which to judge gerrymandering claims. Race, after all, has been subjected to strict scrutiny, while partisan affiliation has not.37

31 See Amos N. Jones, Black Like Obama: What the Junior Illinois Senator's Appearance on the National Scene Reveals About Race in America, and Where We Should Go from Here, 31 T. MARSHALL L. REV. 79, 87 (2005). 32 163 U.S. 537. 33 See U.S. CENSUS BUREAU, THE AMERICAN COMMUNITY SURVEY (2011), available at http://www.census.gov/acs/www/Downloads/questionnaires/2011/Quest11.pdf 34 Reagan Democrats, DINOs and RINOs are all common sobriquets for party members voting against their own party. 35 Bandemer, 478 U.S. at 125. 36 Id. 37 Miller, 515 U.S. 900; c.f. Whitney M. Eaton, Where Do We Draw the Line? Partisan Gerrymandering and the State of Texas, 40 U. Rich. L. Rev. 1193, 1223-24 (2006). See also Stillman, supra note 18.

B. Justice Scalia's Argument

Though Justice O'Conner's opinion in Bandemer opines extensively about the subject of nonjusticiability, it is Justice Scalia's plurality opinion in Vieth that makes the most vicious case against it.38 Justice Scalia would reject Bandemer's holding that partisan gerrymandering claims are justiciable in light of elusive standards in the years since it was decided: Eighteen years of essentially pointless litigation have persuaded us that Bandemer is incapable of principled application. We would therefore overrule that case, and decline to adjudicate these political gerrymandering claims.39 Justice Scalia reiterated this view in an opinion concurring in part and dissenting in part with a plurality opinion authored by Justice Kennedy in League of United Latin Am. Citizens v. Perry. Justice Kennedy's discussion of appellants' political-gerrymandering claims ably demonstrates that, yet again, no party or judge has put forth a judicially discernible standard by which to evaluate them, he wrote.40 This assertion is facially illogical.41 The fact that no manageable standard had yet been proposed, despite innumerable attempts over a span of eighteen years, logically cannot prove that no such standard is possible, one critic wrote.42 Just because no case has come before the court that is so egregious as to inspire the creation of a standard does not mean one never will. Indeed, Justice Souter took it as a good sign that no party had yet come forth with political gerrymandering case with facts so persuasive as to force the court to express a standard. "I take it that the principal reason we have not gone from theoretical justiciability to practical administrability ... is the Davis plurality's specification that any criterion of forbidden gerrymandering must require a showing that members of the plaintiff's group had 'essentially been shut out of the political process.'43 Justice Scalia then seeks to systematically tear down those standards that have been proposed. A plurality in Bandemer would have required a plaintiff to show intentional discrimination against an identifiable political group and an actual discriminatory effect on that group. 44 The legacy of this misguided test is one long record of puzzlement and consternation, Justice Scalia wrote, noting that some commentators had called it largely subjective.45 Justice Powell's proposal in Bandemer also provided little guidance, according to Justice Scalia. Justice Powell would have required a plaintiff to show intent and effect, like that of the plurality in that case, but also that district lines had been drawn
38 541 U.S. 267. 39 Id. at 306. 40 Perry, 548 U.S. at 511. 41 42 43 44 45 Stillman, supra, note 18 at 1318. Id. Vieth, 541 U.S. at 344. 478 U.S. at 127. Vieth, 541 U.S. at 282.

with no eye toward fairness.46 'Fairness' does not seem to us a judicially manageable standard, Justice Scalia wrote.47 The Bandemer plurality's test -- which some lower courts did attempt, has not withstood the test of time, suggesting it is in fact unmanageable. 48 Further, Justice Powell's fairness test is no doubt too subjective to evade political question status, as noted by Justice Scalia. It is, however, Justice Scalia's rebuttal to efforts by the Vieth plaintiffs to import the standards set forth in a long line racial gerrymandering cases in which he engages in a degree of judicial legerdemain that itself has not withstood the test of time.49 In those cases, the court will seek to determine whether race was the predominant factor in the drawing of district lines, strictly scrutinizing those lines if they find that to be the case.50 Justice Scalia first notes that racial gerrymandering cases have focused on single districts, while the partisan gerrymandering in Vieth would require a statewide evaluation.51 This notion was effectively rejected in Perry, where the court ordered an evaluation of racial gerrymandering in Texas congressional districts on a statewide basis.52 Justice Scalia also wrote in Vieth that the predominant motive test is easier and less disruptive in racial gerrymandering cases, adding that redistricting by political entities is clearly contemplated in the Constitution.53 By contrast, the purpose of segregating voters on the basis of race is not a lawful one, and is much more rarely encountered, he wrote. 54 The Vieth plurality further offers a perplexing statement on judicial manageability: [C]ourts might be justified in accepting a modest degree of unmanageability to enforce a constitutional command which (like the Fourteenth Amendment obligation to refrain from racial discrimination) is clear; whereas they are not justified in inferring a judicially enforceable constitutional obligation (the obligation not to apply too much partisanship in districting) which is both dubious and severely unmanageable.55 This outlook ignores the basic grant of the Fourteenth Amendment: No State shall ... deny to any person within its jurisdiction the equal protection of the laws.56 In both political and racial gerrymandering cases, a class of voters faces the intentional dilution of its voting strength. Just because the class of persons changes does not mean that the basic standard in racial gerrymandering claims is any less applicable. The Fourteenth Amendment does not mandate that its protections are solely to be

46 478 U.S. at 161 (Powell, J., concurring in part and dissenting in part). 47 Vieth, 541 U.S. at 290-91.
48 49 50 51 52 53 54 55 56 Id. at 280-81. Miller, 515 U.S. 900; Reno, 509 U.S. 630. See, e.g., Shaw v. Hunt, 517 U.S. 899 (1996). Vieth, 541 U.S. at 285.. Perry, 548 U.S. at 437. Vieth, 541 U.S. at 285-86. Id. Id. U.S. CONST. amend. XIV.

based on race, though race certainly was on the mind of its authors.57 Again, this distinction between classes truly raises the question of the level of scrutiny a court should apply, rather than whether the standards of a nearly identical line of cases are inapplicable. Further, the Vieth plurality offers no guidance on what standard would be applicable simply stating that there is none.58 Though couched in Scalia's traditional caustic yet persuasive style, his argument for injusticiability is devoid of consistent logic. It ignores the substance of the precepts of equal protection, giving only a conclusory statement that because no standard has been found, no standard exists. It is a sidestep through a prudential doctrine to avoid substantive attempts to apply any of a variety of proposed standards. The rest of the opinion is dedicated to showing that none of the proposed standards are manageable, with no affirmative steps to prove his point.59 The Vieth plurality even acknowledges that partisan gerrymandering could offend the Constitution, but fails to identify which provision.60 To Justice Kennedy, however, it was obvious: The Fourteenth Amendment standard governs; and there is no doubt of that.61

III. The Obvious Standard

It is of little surprise that no standards have developed since Bandemer's tenuous holding that partisan gerrymandering cases were justiciable the most obvious one has repeatedly failed to gain the clear support of the high court.62 It is unclear why this is the case when judicially manageable standards in the racial context have been recognized and modern jurisprudence allows equal protection challenges for reasons other than race.63 In both racial and political gerrymandering, one group's votes are diluted while the strength of the votes of another group is bolstered, yet only one form is recognized. Examining all gerrymandering cases with the same standard is the most logical outcome. Asking for a different standard only confuses the issue, creating an array of flawed suggestions like those Justice Scalia all but eviscerated in Vieth. The court has developed an array of levels of scrutiny to handle such varied circumstances.64
57 See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (striking down a Colorado amendment barring state and local governments from granting certain protections to gays); City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (finding a Texas city's rejection of a permit for a group home for the mentally retarded violated the Equal Protection Clause); Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1985) (rejecting an Alabama statute that the court found discriminated against nonresident competitors). 58 Daniel H. Lowenstein, Vieth's Gap: Has the Supreme Court Gone from Bad to Worse on Partisan Gerrymandering?, 14 CORNELL J.L. & PUB. POL'Y 367, 368-69 (2005). 59 Lowenstein, supra note 58, at 369. 60 Lowenstein, supra note 58. 61 Vieth, 541 U.S. at 313-14 (Kennedy, J., concurring in judgment). 62 Perry, 548 U.S. 399; Vieth, 541 U.S. 267; Bandemer, 478 U.S. 109. 63 Miller, 515 U.S. 900. 64 See United States v. Carolene Products Company, 304 U.S. 144, 155 n. 4 (1938)

As an initial policy matter, the Framers surely did not leap from underneath a monarchy intending to create an institutionalized oligarchy. That is what invidious gerrymandering allows intractable dominion over the minor voting group, whether a race or party. The American form of democracy envisions a degree of fairness among all parties and persons involved, granting them at least an opportunity to be heard.65 For gerrymandering to run afoul of the Constitution, it must not be merely offensive to a party or race, but to the American notion of democracy. Despite Justice O'Conner's claims to the contrary,66 it is squarely within the domain of the court to safeguard constitutional aims of maintaining a democratic republic.67 Further, it is not even the intent of the Framers the court should look toward when evaluating whether racial gerrymandering standards should be expanded. Rather, it is the intent of those drafting and adopting the Fourteenth Amendment, who expressly showed interest in equal protection under the law.68 The fact that both major parties engage in the crafting of these partisan and maze-like districts makes them no less of an equal protection violation, even if it can be expected that the parties will do so over an extended period of time. This is particularly true when that time could range from a decade to centuries, forcing the minority party to hope only for a wave of success that comes in the year of the U.S. Census. During that span, in what is supposed to be a democratic society, legislators and not voters are deciding the outcome of races through vote dilution. Each election in which this occurs, presents harm to the democratic process, along with the equal protection violation. Irrelevant of whether the balance of power equals out over time, there are clear policy reasons to avoid this outcome.
69

Otherwise, the nation's habit for calling itself democratic is a farce. Plaintiffs in Vieth, Perry, and Bandemer have all unsuccessfully argued for what amounts to

uniform recognition of standards for all gerrymandering cases partisan and racial alike. 70 With the issue being the political thicket that Justice Frankfurter warned against, 71 it is understandable that the court would be reluctant to enter a process that is fundamentally a political affair.72 The court, however, has already waded deeply into that thicket, and, at this point, it requires some judicial
65 BLACK'S LAW DICTIONARY 1339 (8th ed. 2007) (contrasting a republic from the rule of one person (such as a king or dictator) or of an elite group (such as an oligarchy, aristocracy, or junta)). 66 Id. at 145. 67 E.g., Reynolds, 377 U.S. at 555 (recognizing that [t]he right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government). 68 Even this may be too conservative of a statement. In Brown v. Bd. of Educ., 347 U.S. 483, 492-493 (1954), the court stated while assessing an school segregation that we cannot turn the clock back to 1868 when the Amendment was adopted, ... We must consider public education in the light of ... its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. 69 See Reynolds, 377 U.S. at 561-62. 70 Brief for Appellants, Perry, 548 U.S. 399 (No. 05-276); Brief for Appellants, Vieth v. Jubilerer, 541 U.S. 267 (No. 02-1580); Brief of Appellants, Davis v. Bandemer, 478 U.S. 109 (No. 84-1244). 71 Colegrove v. Green, 328 U.S. 549, 556 (1946). 72 Bandemer, 478 U.S. at 145.

chicanery to continue to avoid it when the legitimacy of court evaluations of district lines has been well established in racial gerrymandering and apportionment cases.73 The court's incessant search for a separate partisan gerrymandering standard is an innately self-defeating exercise. Each new proposal will inevitably be compared to the one used in racial gerrymandering cases. Likewise, this new standard would have to be at least as effective as that used for evaluating racial gerrymandering. As it stands, partisan gerrymandering plaintiffs are being asked to engage in a futile effort to reinvent the wheel. An example of this wheel-spinning can be seen in efforts to craft a standard via Bandemer's plurality holding that such plaintiffs must show intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.74 Meeting the intent prong of this test has not been the subject of controversy, particularly since the court in Bandemer acknowledged it is almost always present in partisan gerrymandering.75 At least one commentator has said that the key to finding a judicially manageable standard rests with the discriminatory effect prong of the test: Additionally, an effects' test would have to depart from previous standards that were considered and rejected as vague and unmanageable in Vieth and Perry. This restraint would effectively prohibit the use of standards that assess a political group's vote dilution or potential conflicts of interest from legislators drafting a redistricting plan.76 Gerrymandering is defined by vote dilution.77 If Vieth and Perry do in fact call for standards which do not include considerations of vote dilution the issue at hand in every single gerrymandering case then no standard will ever be found because justices have exempted the consideration of gerrymandering's core offense. The nature of the district line-drawing process entails a variety of considerations, often including partisan affiliations and race, which to some extent are reasonable and founded in the nation's history.78 The considerations, though, are not that dissimilar in either case. Voters of one race are not certain to vote uniformly, though they often have a tendency to vote as a bloc. 79 The same goes for voters of a partisan disposition.80 Even though race may seem to be a clearer delineation than party, lingering ambiguities in the law do not provide any particular clarity. Meanwhile, voters will often cross party lines when voting candidates, but rarely change parties themselves.81
73 Hunt v. Cromartie (Cromartie I), 526 U.S. 541 (1999); Shaw v. Hunt, 517 U.S. 899; Reno, 509 U.S. 630; Miller, 515 U.S. 900. 74 478 U.S. at 127

75 Weiss, supra note 14, at 1095-96.

Id. (emphasis added). Black's Law Dictionary 709-709 (8th ed. 2007) Bandemer, 478 U.S. at 145 (O'Connor, J., concurring in judgment). See, e.g., Thornburg v. Gingles, 478 U.S. 30, 52-53 (1986); c.f. L.A. Holmes, Black Republicans Win First Congress Seats Since 2003, FOX NEWS (Nov. 30, 2010), http://politics.blogs.foxnews.com/2010/11/03/black-republicans-win-first-congress-seats-2003. 80 Tom Curry, How Reagan Hobbled the Democrats, MSNBC, June 7, 2004, http://www.msnbc.msn.com/id/5151912/ns/us_newsthe_legacy_of_ronald_reagan/. 76 77 78 79

81 Michael Barone, The Story Behind the Polls, REAL CLEAR POLITICS (Oct. 30, 2006),

The Vieth plurality even provides a clue supporting this stance one that remained latent until Perry was decided. In Vieth, to justify his opposition to importing racial gerrymandering standards for political gerrymandering cases, Justice Scalia stated that [i]n the racial gerrymandering context, the predominant intent test has been applied to the challenged district in which the plaintiffs voted. Vague as the 'predominant motivation' test might be when used to evaluate single districts, it all but evaporates when applied statewide.82 But in his dissent in Perry, Justice Scalia appears to have no qualms with statewide evaluations in gerrymandering claims: [W]e have emphasized that, in determining whether a State has impaired a minority's 'effective exercise of the electoral franchise,' a court should look to the totality of the circumstances statewide.83 The problem with statewide evaluations in gerrymandering cases was one of Justice Scalia's few direct criticisms of the importation of racial gerrymandering standards for partisan gerrymandering cases.84 It seems that concern has evaporated with time. Justices critical of applying this established gerrymandering standard to partisan line-drawing cases have mired the discussion with comments on judicially manageable standards and the differences between race and party affiliation. However, the language of these arguments raises the specter of what scrutiny the court should apply rather than the standards it should use. Determining whether the shape of a particular district is so substantially affected by the presence of a rare and constitutionally suspect motive as to invalidate it is quite different from determining whether it is so substantially affected by the excess of an ordinary and lawful motive as to invalidate it, Justice Scalia wrote in Vieth.85 Justice O'Connor, seeking to distinguish the forms of gerrymandering, states in Bandemer: Where a racial minority group is characterized by 'the traditional indicia of suspectness' and is vulnerable to exclusion from the political process, ... individual voters who belong to that group enjoy some measure of protection against intentional dilution of their group voting strength by means of racial gerrymandering.86 These arguments speak to the degree of deference a court should give show toward electoral boundaries, with language clearly supporting the strict scrutiny offered in racial gerrymandering cases. By seeking to distinguish the partisan gerrymandering from racial gerrymandering, these justices fail to point to why the standards fail in the political context. Instead they crafty arguments that something less than strict scrutiny should be used in partisan gerrymandering cases.
http://www.realclearpolitics.com/articles/2006/10/the_story_behind_the_polls.html
82 83 84 85 86 Vieth, 541 U.S. at 285. Perry, 548 U.S. at 520 (Scalia, J., concurring in judgment and dissenting in part.). Vieth, 541 U.S. at 285. Vieth 541 U.S. at 286 (emphasis added). Bandemer, 478 U.S. at 151 (emphasis added).

The court in Shaw v. Hunt stated the standard for gauging vote dilution in racial gerrymandering cases as follows: strict scrutiny applies when race is the predominant consideration in drawing the district lines such that the legislature subordinate[s] traditional race-neutral districting principles ... to racial considerations.87 Much like the court's discussions of partisan gerrymandering cases, this statement imposes upon the standard a level of scrutiny, confusing the issue. Without racial considerations and the implicit level of scrutiny that goes with them the standard could be restated as follows: Electoral boundaries violate the Equal Protection Clause when the predominant consideration in drawing those boundaries is dilution of a particular group's overall voting strength. Under this restatement, established notions of scrutiny would still apply. Excessively raceconscious districting would be subject to strict scrutiny, as it is now. An attempt to draw district lines in a way that is aimed at diluting the voting strength of women, for example, would face intermediate scrutiny.88 For most cases, however, that would leave rational basis evaluations. Partisan gerrymandering claims would fall in the final category, something as much acknowledged in the appellant's brief in Perry.89 The practical effect of this would be to allow gerrymandering cases to go forward on a basis other than race, requiring most plaintiffs to make a significant showing of discrimination.

IV. Application

To show how this would work in reality, it is first necessary to get into the nuts and bolts of gerrymandering, which so far has been outside of the scope of this essay. Traditional districting principles include contiguity, compactness, respect for political subdivisions, and conformity with geographic features like rivers and mountains.90 The voting strength of a particular group can be attacked in three basic ways. In a technique called packing, a voting minority may be concentrated into as few districts as possible, all but ensuring that they elect a member of their choosing in those districts while diminishing their influence in others.91 A second method, known as cracking, calls for the dispersion of a geographically concentrated voting group that could otherwise constitute a district's dominant voting force among other districts, again diminishing their overall influence.92 Lastly, a large voting group can be stacked with a larger and opposing group, again reducing the minority group's
87 88 89 90 91 92 Hunt, 517 U.S. at 907 (internal quotations omitted; emphasis added). See, e.g., Craig v. Boren, 429 U.S. 190 (1976). Brief for Appellants, Perry, 548 U.S. 399 (No. 05-276). Vieth, 541 U.S. at 347-48. BLACK'S LAW DICTIONARY 1140 (8th ed. 2007). BLACK'S LAW DICTIONARY 395 (8th ed. 2007).

voting strength.93 The call-signs of these efforts can in many ways be seen simply by looking at a district's shape. Those that do not comport with the traditional principles will appear clearly irregular. In addition to basic Fourteenth Amendment hurdles regarding equal protection, districts must also comply with the complexities of the Voting Rights Act of 1965, which includes its own protections against the dilution of votes among racial minorities.94 Numerous gerrymandering cases have been litigated over the provisions of that act, creating a web of rules that are often entwined with the equal protection considerations.95 Race can be a consideration in district line-drawing, but it cannot be the predominant one.96 Further, compliance with the Voting Rights Act can be a compelling state interest. 97 It is worth noting that these numerous complications for racial gerrymandering cases tend to suggest that they may be even less judicially manageable than other forms of gerrymandering. With that in mind, it is now time to enter the political thicket. A. North Carolina's 12th Congressional District

North Carolina may be the gerrymandering capital of the nation. When Slate.com produced a top 20 list in 2010 of the most gerrymandered districts, four of North Carolina's current thirteen districts made the list more than any other state. 98 Its congressional districts have been the subject of a parade of the lawsuits that make up the predominant gerrymandering cases. 99 In addition, no other district in the state has quite a storied history of gerrymandering as the 12th Congressional District. It is so much the poster-child of boundary-drawing abuse that it has been called political pornography.100 As a breeding ground for some of the most prominent gerrymandering lawsuits, it is an ideal subject for hypothetical tests of judicial gerrymandering standards. Justice Stewart once wrote in a case about actual pornography that he knew it when he saw it.101 Likewise, images of the 12th Congressional District will explain its dubious distinction far better than words can:102
93 BLACK'S LAW DICTIONARY 1446 (8th ed. 2007). 94 42 U.S.C.A. 1973-1973aa-6 (West 2011). 95 See, e.g., Holder v. Hall, 512 U.S. 874 (1994); Johnson v. De Grandy, 512 U.S. 997 (1994); Chisom v. Roemer, 501 U.S. 380 (1991); Thornburg, 478 U.S. 30; Whitcomb v. Chavis, 403 U.S. 124 (1971). 96 See Hunt, 517 U.S. 899. But cf. Cromartie I, 526 U.S. 541. 97 Hunt, 517 U.S. 899 98 The Most Gerrymandered Congressional Districts, SLATE.COM, http://www.slate.com/id/2208216/slideshow/2208554/fs/0//entry/2208555/ (last visited April 6, 2011). 99 Hunt v. Cromartie (Cromartie II), 532 U.S. 234 (2001); Cromartie I, 526 U.S. 541; Hunt, 517 U.S. 899; Reno, 509 U.S. 630. 100 Editorial, Political Pornography, WALL ST. J., Sept. 9, 1991, at A10.

101 Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964). 102 North Carolina Redistricting Cases: the 1990s, MINNESOTA SENATE, http://www.senate.leg.state.mn.us/departments/scr/redist/redsum/NCSUM.HTM (last visited April 6, 2011); NATIONAL ATLAS, N.C. CONGRESSIONAL DISTRICT 12 (2011), available at http://www.nationalatlas.gov/printable/printableViewercd.html?imgF=images/preview/congdist/NC12_110.gif&imgW=750&imgH=452

The 1992 plan for the district was adopted after the U.S. Department of Justice rejected a North Carolina plan with only one minority-majority district, pursuant to 5 of the Voting Rights Act.103 The Justice Department took issue with the fact that under the single minority-majority district plan, it was likely that only 8 percent of the state's congressional districts would have black representation when more than 20 percent of the state's population was black. 104 The new district, an example of packing, snaked 160 miles from Charlotte to Durham, largely following Interstate 85 with a width no wider than a freeway right-of-way.105 In Shaw v. Reno, the court held that the redistricting would face strict scrutiny if it was so bizarre on its face that it is unexplainable on grounds other than race.106 In Shaw v. Hunt, the court found that the 12th District was in fact so bizarre as to be unconstitutional, at least when subjected to strict scrutiny.107 Now, to alter the facts a bit, withdrawing race and injecting partisanship. Assume North
103 Id. 104 Id. 105 Id.
106 Reno, 509 U.S. at 644. 107 Hunt, 517 U.S. 899.

Carolina's voting population is 10 million and its party makeup is 60 percent Democratic, 30 percent Republican and 10 percent unaffiliated.108 Ideally, that would mean that the state's twelve districts should each include about 833,000 people. Further, assume that District 12 is drawn in a way that 72 percent of its population 600,000 is Republican, meaning that one-fifth of the state's entire Republican population has been contained to just one of the twelve districts. Like the real district, this one would be packed. With race out of the equation, this monstrosity would not have been drawn in a way to comply with the Voting Rights Act, so there is no argument of a state interest to stand on in that context. The district is compact in no sense, apparently does not conform with any feature other than Interstate 85, and is kept contiguous only due to the occasional three-foot strip binding together its larger sections. Determining whether it pays any heed to political subdivisions would require more depth than this essay necessitates. Still, the district's demonstrable failings to comply with at least three standard district drawing conventions suggest the lines were not drawn with rational relation to anything but single-party dominance, a state interest that is extremely difficult to defend as legitimate in a democracy. The existence of a second district of similarly unusual stature would only add additional support to this, suggesting an intent to reduce voting power exists on a statewide basis. A showing that party strength had been cut up across the state elsewhere through cracking would also indicate an intentional discrimination against a single party. It does not take much to pass rational-basis

evaluation, and a politically-drawn District 12 in 1992 would not even pass under these facts. The 1997 incarnation of the 12th District also demonstrates another nuance relevant to partisan gerrymandering claims. Under the standard offered above, the Fourteenth Amendment is only violated when the dilution of a group is the predominant motive for the drawing of those lines. If it is not the predominant motive, existing as a secondary motive or just one of several primary motives, there is no constitutional violation. This would be consistent with the outcome of litigation over the 1997 map of the district, though not for the same reasons. After evidence had been presented that partisan considerations were at hand in Easley v. Cromartie, the court held that the evidence does not show that racial considerations predominated in the drawing of District 12's boundaries. That is because race in this case correlates closely with political behavior.109 If the district had been drawn with balanced concerns about protecting a race's voting strength along with partisan considerations, it would just as readily survive the generic gerrymandering test set forth above. This could be accomplished, for example, by grouping a racial minority that has a tendency to vote with one party with voters of that
108 The real numbers are closer to 44 percent Democratic, 31.5 percent Republican, and the remainder almost entirely unaffiliated. NORTH CAROLINA STATE BOARD OF ELECTIONS, http://sboe.state.nc.us (last visited April 6, 2001). 109 Easley v. Cromartie, 532 U.S. 234 ( 2001).

same partisan disposition. Further, as shown by the extensive discussion on race in Easley, the strict scrutiny that issues of race command quickly subsumes any concerns of dilution of partisan votes.110

B. Practical Effect

In reality, the adoption of a universal standard would have little practical effect. A remedy would only be available in extreme cases of abuse those intended primarily to reduce the voting strength of a particular group. Rational basis scrutiny would provide ample cover to defend from allegations of gerrymandering on purely partisan grounds. If minorities are in the district, but are not a majority of voters, combining a sizable group of them with a like-minded party ensuring the minority race's voting strength would be sufficient to overcome any diluting effects.111 The same could be done by showing a district generally conforms to common line-drawing standards.112 On a statewide level, complaints alleging discrimination against a party would still require a significant showing that district lines were unconstitutionally abusive. Had the court managed to reach the question of partisan gerrymandering in Perry, it may well have found such a violation. In that case, an unusual mid-decade redistricting allowed GOP congressional candidates to go from fifteen of the state's thirty-two seats to twenty-one, despite winning a smaller percentage of the popular vote than they had received in previous election cycles.113 Racial gerrymandering cases are no less manageable than partisan ones, they are just far more likely to succeed. This is a function of the strict scrutiny such cases call for not the manageability of the standard for judging them. In practice, even if a universal gerrymandering standard were adopted, plaintiffs would almost always be better off trying to find a violation on the basis of race because of this distinction. There would be no flood of gerrymandering lawsuits because the chances of success in a partisan gerrymandering cases is still close to zero. That, however, is better than nothing.

Conclusion

Underpinning many apportionment cases is a concern that the manipulation of the districting

110 The 1998 map was used for a stand-in during litigation over district lines. The 2010 map would likely survive an equal protection challenge for the same reasons the 1997 map did. They are included merely to illustrate that appearances do in fact matter in gerrymandering cases. 111 Ironically this does not work in North Carolina due to reasons stemming from the state constitution. See Bartlett v. Strickland, 129 S. Ct. 1231 (2009). 112 Vieth, 541 U.S. at 347-48.

113Weiss, supra note 14, at 1084-85.

agenda could cause systemic harms to the political process.114 The court's willingness to address racial gerrymandering cases is as much an admission of this fact, particularly because a suspect class is involved. In crafting its opinions, though, the court has long mixed talk of standards with talk of scrutiny, confusing what should be a clear: A minor group's participation should not be intentionally rendered moot by a majority. This is in line with the Framers' intent and American notions of liberty following the adoption of the Fourteenth Amendment. Many of the arguments against justiciability have only served to confuse the matter, leaving minor voting groups in the lurch as courts talk of standards when they instead mean scrutiny. Still, the practical effect of recognition of a partisan gerrymandering standard would be minimal. Such cases would not be likely to succeed because they most likely fall under rational basis scrutiny. As for long-term solutions, non-partisan districting commissions have been created in several states in an effort to take politics out of the process.115 There is also a very simple and mundane way party leaders can seek redress over troublesome boundaries mobilizing their base, attracting new members and winning elections. As for those drawing district lines for 2012, they should take the court's consternation with partisan district lines as justification to ignore all traditional standards of redistricting until something so nonsensical reaches the court to inspire it to change its stance.

114 Issacharoff, supra note 1, at 596. 115 2009 Redistricting Commissions Table, NATIONAL CONFERENCE OF STATE LEGISLATURES , http://www.ncsl.org/?tabid=16617 (last visited April 6, 2011).