Race-Based Gerrymandering Comes to the Court

(Photo: AP/Richmond Times-Dispatch/Bob Brown)

A bystander looks at maps as members of the public speak during a meeting about redistricting of the Virginia Legislature in April 2011.

Gerrymandering may be an American political tradition, but there’s one kind of gerrymandering on which the courts have begun to cast a cold eye. A case that the Supreme Court has agreed to hear this session could curtail the Republican practice of creating more districts for themselves by packing racial minorities into a single district.

Fifty years ago, at the height of the civil-rights movement, progressives hoped that the newly enacted Voting Rights Act would not just enable African Americans to vote in the formerly Jim Crow South, but also compel the states to create legislative and congressional districts that would elect African American representatives. The states soon complied, crafting districts with African American supermajorities. The number of African American legislators and members of Congress soared.

In time, however, Republican legislatures learned how to game this system. By packing racial minorities into districts that Democrats would carry with two-thirds of the vote, they were able to create a greater number of just-white-enough districts that GOP candidates could win with smaller, but still safe, margins. 

On November 13, the Supreme Court agreed to hear an appeal of a lower court’s ruling that invalidated Virginia’s congressional district map on the grounds that Republicans had illegally packed a single district with black voters. The case, known as Wittman v. Personhuballah, has potentially far-reaching implications, not just for the question of how minority groups can be best represented in legislatures, but also for the broader question of how fair districts can be drawn and who has the authority to draw them.

The case concerns the fact that Virginia’s Third District had been drawn according to an interpretation of the Voting Rights Act that holds that the minority districts redrawn after the decennial census must have the same racial make-up as they did before, even if that means pulling in minority voters from other districts. In a similar case originating in Alabama, the Supreme Court called this interpretation of the Voting Rights Act “mechanical,” and ruled that it amounted to unconstitutional racial gerrymandering. The court’s decision in the Virginia case could mean a looser interpretation of the Voting Rights Act.

The Voting Rights Act was intended to counter socioeconomic factors that kept minority groups from being as engaged with the political process as white voters. Unless blacks constituted a supermajority, whites would still outvote them and black candidates would go down in defeat. Because black electoral participation was expected to rise, however, the Voting Rights Act was intended only to be a temporary fix, says Michael Li, Senior Legal Counsel at the Brennan Center’s Democracy Program.

“The idea was that at a certain point, people would overcome the need for that and we would no longer have to draw these districts,” says Li.

That is exactly what has happened in Virginia’s African American community. “African Americans are voting more, their registration rates are higher, their turnout rates are higher, and their political cohesiveness is higher,” says Li. “African Americans don’t need a district that is 60 percent African American anymore.” Indeed, the turnout rate for black voters in Virginia in the 2012 election actually exceeded that of white voters by 5.9 percent.

But the rise in black voting rates has coincided with a Republican-led push to pack black voters into a single district in a manner that has diluted their power, and the Democrats’, elsewhere in the state. In October 2014, the U.S. District Court of the Eastern District of Virginia ruled that race played too much of a role in the Virginia General Assembly’s mapping of the state’s Third Congressional District, which stretches across the state to include heavily black areas of Norfolk and Richmond. The Third District, currently represented by Democrat Robert C. Scott, is Virginia’s only black-majority district. The panel of three federal judges ruled that in drawing the district, the state assembly had purposefully consolidated the state’s black vote into a single district to solidify Republican control over the surrounding districts. Because “the constitutional infirmities of the Third Congressional District cannot be remedied in isolation,” the court wrote, “Virginia should act within the next legislative session to draw electoral districts based on permissible criteria.”

By agreeing to hear an appeal of the ruling, however, the Supreme Court froze the redistricting process. Republicans, who had attempted to delay the drawing of a new map and preserve their control of adjacent districts in this year’s elections, applauded the court’s decision. “Today’s order from the Supreme Court validates the Speaker’s position that the defendants should have the opportunity to fully litigate this case before a new congressional map is drawn,” said Matt Moran, spokesperson for Speaker William J. Howell, who had led GOP resistance to redrawing the district lines.

But Republicans may not be celebrating for long. Last March, in Alabama Legislative Black Caucus v. Alabama, the Supreme Court found that similar attempts to pack the black vote into a single district constituted racial gerrymandering. In that case, the Court sent the case back to lower courts with an order to consider how gerrymandering affected the entire state, rather than with the goal of maintaining racial demographics in the single district. The Alabama decision bodes especially poorly for Virginia Republicans, who face the additional problem that the plaintiffs do not live in the Third District and therefore may lack standing to appeal the circuit court’s decision.

The Supreme Court is also hearing another case, Harris v. Arizona Independent Redistricting Committee, which will test the bounds of racial gerrymandering and the Voting Rights Act. This case is in many ways the inverse of Wittman v. Personhuballah, as it was brought by a group of Republican state senators who alleged that Arizona’s districts were drawn to pack Republican voters into districts and thereby give Hispanic voters an outsized presence in several districts where Democratic candidates have prevailed. The Brennan Center’s Michael Li argues that the Hispanic community, in which voter participation is far lower than in the black community, still needs the protections of the Voting Rights Act to ensure it has a voice in legislative bodies.

“In the future,” says Li, “Latinos’ registration rates and turnout may increase, they become better integrated into political life, and no longer need these super packed districts.” That time has not yet come, however, and diminishing the Voting Rights Act’s protection of minority districts in Arizona could lead to the Latino community becoming further marginalized. “You would end up moving adjacent white neighborhoods into Latino Districts, and having those extra white voters could actually harm the ability of Latinos to elect their candidates of choice.” Arizona’s non-partisan redistricting commission forestalled that process, says Li, “by under-populating some of the Latino districts. The question is whether that is permissible.”

The larger question is what parameters legislators must follow in drawing district lines so that voters are represented fairly, and under what conditions should those parameters change. The Third District was, after all, originally drawn in 1992 in compliance with the Voting Rights Act, under the premise that it would give black voters a better chance at fair representation.

The solution for gerrymandering as such, however, is a matter for politics, not law. Redistricting reform groups such Common Cause and New Virginia Majority, which does community organizing in the state’s minority neighborhoods, are pressuring the state legislature to create an independent commission to handle redistricting, as California and Arizona have. Even when gerrymandering isn’t running rampant, though, legislatures are reluctant to hand over the power to reshape their districts to independent commissions: California’s and Arizona’s were created by voters who approved initiatives. Virginia—surely, to the legislator’s relief—doesn’t allow initiatives.

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