Cooper v. Harris, 581 U.S. (2017).

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1 Cooper v. Harris, 581 U.S. (2017). ELECTIONS AND REDISTRICTING TOP 8 REDISTRICTING CASES SINCE 2010 Plaintiffs alleged that the North Carolina legislature violated the Equal Protection Clause when it increased the percentage of black voters in two of the state s congressional districts: District 1 and District 12. By packing black voters into these two districts, Republicans were able to whiten all of the adjacent districts, altering their partisan makeup in a way that favored Republicans. In North Carolina, race is a better predictor than party affiliation for how a citizen will vote. North Carolina had argued in court that adding black voters to each of the districts was necessary to both comply with Section 2 of the Voting Rights Act and to get preclearance under Section 5 of the Voting Rights Act (which still applied to North Carolina during the 2011 redistricting process). The Supreme Court rejected the state s arguments and ruled that compliance with neither Section 2 nor Section 5 of the Voting Rights act could justify the Republican-dominated legislature s decision to pack black voters into a few districts. The Court noted that Section 2 of the VRA only requires that minority voters be able to elect their candidate of choice, and does not require any specific percentage of minority voters in any one district. The Court went further to note that race could also not be used as a proxy to achieve other goals, including partisan gerrymandering. Cooper v. Harris overturned the central holding of Easley v. Cromartie, a 2001 racial gerrymandering case. Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. (2015). In 2000, Arizona voters adopted an amendment to the Arizona Constitution via ballot initiative that removed the legislature s authority to draw legislative and congressional districts. The amendment vested this power with a newly created Independent Redistricting Commission (IRC). In 2012, the Arizona State legislature challenged the constitutionality of removing what they consider to be their constitutional powers and giving them to another entity. The argument is based on the Elections Clause of the United States Constitution, which gives this power to the legislatures to draw congressional districts. The three-judge federal district court dismissed the plaintiffs challenge. The case was then appealed to the U.S. Supreme Court which affirmed the lower court s ruling. The Court held that redistricting is a legislative function that is left to the laws of the state to determine the process. The Elections Clause does not restrict this particular power of the state. States retain autonomy to establish their own governmental process. If this includes enacting laws via a citizens initiative process, as is true in Arizona and two dozen other states, then the state retains this power to establish an independent redistricting process through a ballot initiative.

2 Evenwel v. Abbott, 578 U.S. (2016). Voters in Texas sought an injunction barring the use of the 2011 state legislative maps. They argued that Texas should adopt a map measured by voter population numbers, not total population numbers. A three-judge federal district court in Texas dismissed the case for failure to state a claim. It was appealed to the U.S. Supreme Court. The U.S. Supreme Court rejected the plaintiffs claim that the Texas plan based upon total population was in violation of the one-person, one-vote principle of the Equal Protection Clause. The plaintiffs alleged that because the maximum population deviation in Texas was 40 percent when taking into consideration the size of districts based upon voting age population, their vote was diluted. The Supreme Court held that centuries of practice and precedent establishes the principle of representation that serves all residents, not just ones that are eligible to vote. Nonvoters have an important stake in many policy decisions and debates, therefore are accorded their fair representation. The Court took previous rulings and interpretations of the Constitution as applied to congressional districts to its logical conclusion. If the 14 th Amendment calls for the apportionment of congressional districts based upon total population, then why should state legislatures be prohibited from doing the same? The court interpreted language from Section 2 of the 14 th Amendment, Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each State, as applying to state legislative districts as well. The court did not determine that a state must use total population numbers, and instead said that a state may use total population numbers. Gill v. Whitford, 218 F.Supp. 3d 837 (Nov. 21, 2016). Potentially the most important redistricting case since Shaw v. Reno or even Reynolds v. Sims, the plaintiffs in Whitford argued that the Wisconsin Legislature s redrawing of district maps was so extremely partisan that it violated the First and Fourteenth Amendments to the U.S. Constitution. To back up their argument, plaintiffs relied on a new way to calculate when a redistricting plan would be so partisan it would violate the constitution: the Efficiency Gap. The theory is novel because it attempts to quantify the effect of partisan gerrymandering to prove the intent to gerrymander for political gain. Under the Efficiency Gap, every vote over or under 50% + 1 (or the bare number of votes necessary to prevail in an election) is a wasted vote. Because gerrymandering involves packing voters into a small number of districts or cracking them across across multiple districts to dilute their voting power, calculating the margins of victory via the Efficiency Gap can indicate an intent to gerrymander. According to the University of Chicago law professor who developed the theory, an efficiency gap score greater than 7% indicates a 95% likelihood that partisan gerrymandering occurred, and any efficiency gap beyond that line should be unconstitutional. In Wisconsin in 2012 and 2014, the efficiency gap was in the teens. The three-judge District Court panel ruled in 2016 that the Efficiency Gap had promise as a theory, and based on that theory (and others presented to the court) struck down the Wisconsin

3 Legislative map as an unconstitutional gerrymander. This was the first district court to find an unconstitutional partisan gerrymander in a generation. Wisconsin appealed the decision to the Supreme Court earlier this year, and the Court will hear oral arguments this fall. If affirmed by the Supreme Court, it would be the first time the Supreme Court has adopted a legal standard against which redistricting plans can be adjudged for their partisanship. Shelby County v. Holder, 570 U.S. (2013). Shelby County, Alabama was covered by sections 4(b) and 5 of the Voting Rights Act of 1965 (VRA). Section 4(b) of the VRA identifies data that shows the cause and effect of statewide practices in the past that led to discrimination in voting. Using this data, certain states and jurisdictions were defined as covered jurisdictions, which meant that any changes in their voting procedures had to be approved, either by the Department of Justice or by the U.S. District Court for the District of Columbia, before they were implemented. When they were enacted in 1965, the coverage formula and preclearance requirements were set to expire after five years. Congress extended them several times, most recently in 2006 for 25 more years. In 2011, Shelby County sued the U.S. attorney general, challenging the constitutionality of both section 4(b) and section 5. The primary contention was that the coverage formula in section 4(b) had not changed since the VRA was initially enacted in Plaintiffs claimed that things have drastically changed since then in Shelby County and that the standards based on old data should no longer apply. At the trial level, a federal district court in Washington, D.C. upheld both section 4(b) and section 5. The D.C Circuit court affirmed the lower court s holding. Shelby County appealed to the U.S. Supreme Court. The U.S. Supreme Court ruled in favor of Shelby County in a 5-4 holding with Chief Justice Roberts writing the majority opinion, ruling that section 4 of the Voting Rights Act is unconstitutional. The court had to balance exceptional conditions surrounding the implementation of the Voting Rights Act with the basic principles of the 10 th Amendment and equal sovereignty among the states. The Tenth Amendment reserves to the states all powers not specifically granted to the federal government. This includes the power to regulate elections. In addition, there is also a fundamental principle of equal sovereignty among the states, which in essence frowns upon disparate treatment of states. The court found that because voter registration rates have increased in minority communities, and minority candidates today hold office in unprecedented numbersm the coverage formula is no longer sufficiently related to the problem it targets and the current burdens of the VRA are not justified by current means. Due to the court s ruling in Shelby County v. Holder, states and jurisdictions previously covered under section 4 do not need to be precleared under the requirements of section 5. It is still possible that states or jurisdictions could be bailed in again for preclearance under the VRA, if a pattern of current discrimination is found.

4 Harris v. Arizona Independent Redistricting Commission, 578 U.S. (2016). Voters in Arizona challenged the independent commission s state legislative redistricting plan based on a wider population deviation among districts, alleging that the plan violated the Equal Protection Clause of the 14 th Amendment which requires states to make an honest and good faith effort to construct districts as nearly of equal population as is practicable. Reynolds v. Sims, 377 U.S. 533, 577 (1964) (otherwise known as one person, one vote ). Plaintiffs argued that the increase in deviation in district populations in the 2010 cycle redistricting plan stemmed from illegitimate considerations, especially partisanship. Plaintiffs noted that that the maximum population deviation of the 2010 plan was twice as much as the 2000 plan (8.8 percent deviation for the 2010 maps, compared to 4.07 percent for the 2000 maps). A three judge federal district court ruled in favor of the Commission. The Supreme Court affirmed the district court s decision, with Justice Breyer writing for a unanimous court. The Supreme Court held that deviations are justified by legitimate considerations incident to the effectuation of a rational state policy. These legitimate factors include traditional redistricting principles such as: compactness, contiguity, integrity of political subdivisions, competitive balance of political parties, and Section 5 of the Voting Rights Act. In addition, in order to prevail in future cases, plaintiffs must show that it is more probable than not that a deviation of less than 10% reflects the predominance of illegitimate reapportionment factors. Alabama Legislative Black Caucus v. Alabama, 575 U.S. (2015). The Alabama Legislative Black Caucus and others filed suit claiming that the Alabama Legislature violated the Equal Protection Clause of the 14th Amendment by drawing the 2012 state legislative map with race as their predominant motivation. The State sought to redistrict to achieve two main goals: minimizing the extent to which a district may deviate from precisely equal population by setting for itself a one percent population deviation (so no district population would be more than one percent larger or smaller than the ideal ), and compliance with the Voting Rights Act. The legislature argued that its goal was to faithfully comply with the Voting Rights Act, which requires the state to draw districts the preserve the minority community s ability to elect the candidate of its choice. The resulting maps added many new minority voters to majority-minority districts. The three-judge federal district court ruled in favor of the State. The Supreme Court reversed and remanded the case to the three-judge federal district court. The Supreme Court declared that to prove that racial considerations predominated, the plaintiffs needed to prove that the legislature purposely subordinated traditional race-neutral districting principles to race-based considerations. The race-neutral principle applied by the legislature was to maintain a population deviation of no more than one-percent. The Supreme Court held that this was not a traditional redistricting principle, but in fact was a background principle. This ruling does not indicate that the legislature acted with discriminatory intent or is not within its right to enact a percentage-based threshold. Instead, the ruling clarified that the court will not and lower courts must not view this principle with the same level of deference it gives to traditional principles. By being declared a background

5 principle, the one-percent goal is not of equal weight when viewed against racial considerations. Therefore, the lower court must look at traditional principles, such as compactness and contiguity for example, to see if they were used alongside racial considerations when the legislature drew the maps. After weighing these traditional principles, the lower court may still be able to find that racial considerations predominated. When racial considerations predominate, the reason for this predominance must be narrowly tailored to a compelling governmental interest. The Supreme Court remanded the case to the three-judge federal district court to apply this standard. As for districts that were held to be narrowly tailored, the Supreme Court ruled that the district court s standard required the legislature to ask itself the wrong questions. The district court said the question the legislature should ask is How can we maintain present minority percentages in majority-minority districts? They should have required the legislature to ask, To what extent must we preserve existing minority percentages in order to maintain the minority s present ability to elect the candidate of its choice? This requires a functional analysis that looks at whether a new redistricting plan would likely deprive minority voters of their ability to elect a candidate of their choice. The Supreme Court also ruled that the three-judge federal district court was also in error when it looked to the legislature s maps as an undifferentiated whole. The legislature stated that it followed no bright-line rules and that race did not predominate in the drawing of some or many districts. Again, the Supreme Court said this is the wrong standard to apply. The district court should have scrutinized each individual district. According to previous Supreme Court case law, an Equal Protection Clause violation is based upon placing a significant number of voters within or without a particular district. Bethune-Hill v. Virginia State Board of Elections, 580 U.S. (2017). Voters in Virginia filed suit in a three-judge federal district court alleging that the Virginia State Legislature violated the Equal Protection Clause when it drew state legislative districts in The legislature drew new lines for 12 state legislative districts that ensured that each of these districts would have a black voting-age population (BVAP) of at least 55 percent. The legislature claimed they did so in order to comply with the Voting Rights Act. During discovery, plaintiffs sought from the House intervenors all documents related to the 2011 Virginia redistricting process, including communications with members, staff, lobbyists, consultants, political organizations, constituents, voters, and government officials. The House produced some documents but withheld others on the basis of legislative and other privileges. The court applied the five-factor test used in Comm. for a Fair & Balanced Map v. Ill. Bd. of Elections, and ordered the House to produce the following: (1) any documents or communications created after the redistricting legislation's date of enactment; (2) any documents or communications shared with, or received from, any individual or organization outside the employ of the legislature; and (3) any documents or communications within the House that were generated before the legislation s date of enactment and reflected strictly factual information or were produced by committee, technical, or professional staff for the House (excluding the personal staff of legislators) that reflected opinions, recommendations, or advice (but not comments, requests, or

6 opinions expressed by legislators or their aides in communication with that staff). On the merits, the district court rejected the challenge to eleven of the twelve districts. The plaintiffs appealed to the U.S. Supreme Court, which issued an opinion on March 1, The Court held that the three-judge federal district court applied the wrong standard with regard to establishing racial predominance. The lower court held that an actual conflict between the enacted plan and the traditional redistricting principles had to be established by the plaintiffs to prove racial predominance. The court would then look to district lines that appeared to deviate from traditional criteria to ascertain whether these deviations were because of racial motivations. The Supreme Court held that this threshold standard of predominance was incorrect. The Court reasserted the controlling standard established in Miller v. Johnson, that challengers may show predominance either through circumstantial evidence of a district s shape and demographics or more direct evidence going to legislative purpose. What is crucial when evaluating predominance is the actual considerations of the legislature for drawing the district lines, not an after-the-fact evaluation of what appears to be district lines that deviate from traditional criteria. The Court s ruling allows the challenge of districts that appear to follow traditional redistricting principles at first glance, but can be shown to have race as the predominant factor. Intent of the legislature is crucial. If evidence is shown that the legislature intended to draw districts based upon racial preferences, then the maps can be rejected. Relevant evidence is not just evidence showing that the districts deviate from traditional principles, but also includes circumstantial evidence that goes towards proving intent. Just because a district doesn t look weird does not mean it s not in violation of the Equal Protection Clause. The Court remanded the case to the district court for reconsideration along these lines.