In a previous post I promised a three part series regarding gerrymandering. Once I got into the weeds of drafting the second post, focused on current gerrymandering litigation in Virginia, Wisconsin and North Carolina, it became apparent it was going to be too long to reasonably digest in one web-surfing sitting. So, I’ve revised my plan and will now divide the redistricting litigation posts into 3 separate pieces.

The cases discussed in this and the coming posts arise out of an national Republican strategically to draw maps intending to create durable Republican majorities in state legislatures and the U.S. House of Representatives. This highly successful effort is known as “Project REDMAP.”

The first post in this series provides an overview of how gerrymandering works and the basic legal structure under which it is analyzed. I recommend you read it before digging in here.

On bias: Yeah, I have one.

I understand and even agree with the idea that some political gerrymandering is implicit in redistricting, particularly when state legislators are given the power of the pen. That said, more sophisticated data analytics and mapping technology have allowed legislatures to create voting districts that result in a relatively disproportionate number of “safe” GOP seats. For example, if, say, 45% of state voters are reliably Democrat, you might expect to see about 45% of state seats go to Democrats, give or take a few percentage points to account for geographic distribution of voters.  In many states, in particular in North Carolina, this isn’t true. Using cracking and packing techniques legislatures have drawn maps where the majority party, usually the GOP, artificially guarantees legislatures that do not reflect the political view of the electorate writ large.

In many states, in particular in North Carolina, this isn’t true. Using cracking and packing techniques legislatures have drawn maps where the majority party, usually the GOP, artificially guaranteed legislatures that do not reflect the political view of the electorate writ large

This has implications for the basic democratic idea that political power comes only from The People as expressed by their votes. I don’t think anyone would reasonably argue that our Founder Fathers anticipated that complicated computer models would be used to create uncompetitive voting districts. In extreme cases, racial and political gerrymandering can render it inordinately difficult to defeat an incumbent legislator, destroying the most important check on political power–defeat at the polls.

Redistricting litigation is among the most complex civil litigation in U.S. courts. There are often several cases challenging particular districts pending simultaneously in both state and federal court. Cases are filed, ruled on, appealed, taken up by SCOTUS, remanded by SCOTUS, stays granted, stays denied and maps drawn and redrawn. Rinse. Repeat. My goal in writing these posts is to help people understand the gist of these cases and the basics of redistricting law, as applied by the current courts. Please understand that I’ve tried to be as thorough as possible without losing the forest for the trees. For further, more detailed reading, I recommend checking out Ballotpedia, the Election Law BlogElection Law Center and SCOTUS blog.

What Are These Cases About, Anyway?

Redistricting litigation takes two broad forms. Most cases allege violations of Equal Protection and the Voting Rights Act (VRA) claiming maps were drawn relying to an unconstitutional degree on the race of the voters in the district (Remember: there is always a tension between the VRA’s requirement that rights of minority voters be protected and the constitutional prohibition on over-considering race). A second theory is that the districts are so politically gerrymandered that they violate First Amendment rights relating to political speech and party affiliation. The last theory has been less successful, but Justice Kennedy has hinted that if a sufficiently reliable standard could be created, he would entertain constitutional challenges to purely political gerrymandering.  President-Elect Trump and his majority Republican Senate will likely appoint a conservative SCOTUS justice soon. This means Justice Kennedy will return to his position as the court’s “swing vote” on voting cases. If the right case is heard at the right time, perhaps Justice Kennedy will change how redistricting is done, thereby better protecting the one person=one vote rule. The cases discussed in these next posts will either inform Justice Kennedy and SCOTUS or, in the case of Wisconsin and North Carolina, these cases may present Justice Kennedy the opportunity that some of us believe he has been waiting for.

Wisconsin, Virginia and North Carolina voters have brought several lawsuits alleging that the GOP-drawn maps from the 2010 census violate Equal Protection, the First Amendment, the VRA and various state statutes. Because gerrymandering is likely to be a big issue in upcoming state elections, it is important for voters to understand the impact of these cases both on their own maps and on the conversation I hope we are going to have about how much gerrymandering is too much gerrymandering in a functioning democracy.

Today’s post focuses on Virginia’s congressional districts.

Virginia: Page v. Virginia State Board of Elections; Bethune-Hill v. Virginia State Board of Elections

In 2013, Virginia voters challenged twelve U.S. congressional districts. In Page v. Virginia Board of Elections,  voters claimed that that the congressional map constituted an unconstitutional racial gerrymander. Specifically, the voters alleged that the legislature unconstitutionally sorted black voters into districts based predominately because of race.

In a racial sorting case, voters must prove race was the predominant factor by proving that the 3 “traditional redistricting” principles discussed in the last post–compactness, contiguity and community– took a back seat to race.  If a court finds that race predominated the district mapping, the legislature must then prove that it had a “compelling state interest” in using race as a predominating factor.

The Virginia legislature used a somewhat arbitrary floor of 55% BVAP (black voting age population) to draw the challenged districts–meaning each district was supposed to be at least 55% black. This was intended to ensure that black voters could elect the candidate of their choice, but also “wasted” 4.9% of the black vote (which in Virginia is also Democratic vote). In Virginia, the challenged maps were intended to result in 8 Republican and 3 Democratic congressional seats even though the voting population that state is pretty near 50/50 Republican/Democrat. Many incumbent Democrats supported this plan because it protected their individual seats. This is not uncommon with personal interests trumping larger political goals.

On October 7, 2014, a Virginia federal court struck down the congressional map finding that “the legislature’s use of broad demographic target percentages, without accounting for the political reality on the ground, left its plan insufficiently tailored [for VRA] compliance.” The unconstitutional maps were permitted to stand for the November 2014 election due to time constraints, but then were ordered to be redrawn.

Also in October 2014, SCOTUS decided Alabama and it ordered the courts to reexamine the Virginia congressional districts under the standard described in the new case.

On June 5, 2015, a federal court in Virginia again found an unconstitutional racial gerrymander applying the standard established in Alabama, and it ordered the Virginia legislature to re-draw Virginia District 3. A special session of the legislature abruptly adjourned in August 2015 without adopting a new congressional map. The failure of the legislature meant that a panel of federal judges had to redraw the map, which was published in January 2016. A group of Republican lawmakers who opposed this map attempted to challenge it (again) to SCOTUS.On May 23, 2016, SCOTUS held that the challengers lacked standing, which resulted in the de facto approval of the newly drawn map.

In addition to the litigation about the Virginia  U.S. congressional districts, there is a case, which was argued to SCOTUS this past December, challenging state legislative districts on similar grounds–that they are an unconstitutional racial gerrymander. In Bethune-Hill, the district court held that race predominated the drawing of 1 of 12 challenged districts. It further held, however, that although race was the predominant factor in the creation of this district, the Virginia legislature was pursuing “a compelling state interest” and its use of race was narrowly tailored to serve that interest. The Bethune-Hill case is extremely similar to McCrory v. Harris, which will be discussed in a coming post. Both Bethune-Hill and Harris were argued to SCOTUS in December 2016 and a decision is expected before summer.

So what?

If I’m you, and assuming I’m not the mega-law-nerd I am, I’m wondering why I just read this whole thing about a case in Virginia. Two reasons: First, past is present, right? The excellent Republican propaganda machine will almost certainly claim their REDMAP strategy is legal–right as rain– and Democrats, in bringing these cases, are litigious sore losers. The only effective means of combatting propaganda is accurate information. I am hesitant to ever quote a Nazi. It is almost always hyperbole. But the recent increase in the volume of the Right’s propaganda machine warrants it. Per Nazi propagandist Joseph Goebbels:

The most brilliant propagandist technique will yield no success unless one fundamental principle is borne in mind constantly – it must confine itself to a few points and repeat them over and over.

The response to the “sore loser” refrain is simple. At least in the context of the Virginia congressional delegation the GOP gerrymander was found to be unconstitutional not once, but two different times, both before and after Alabama.

Second, I believe Democrats need to make gerrymandering an election issue in 2017, 2018 and beyond. The electorate must begin to understand this complex Wizard of Oz process if we are to lift the veil on the “man behind the curtain.” You should care about Virginia redistricting litigation because this esoteric legal world will directly impact the proportional impact of very person’s next vote, as it contributes to the law of redistricting.