Redistricting

  • July 11, 2014

    by Paul Guequierre

    The Orlando Sentinel is reporting Florida's re-drawn congressional map intentionally favors Republicans in violation of the anti-gerrymandering standards voters approved in 2010 and will have to be re-drawn, according to a ruling late Thursday from a Tallahassee judge. Leon County Circuit Judge Terry Lewis, who found particular problems in two central Florida seats, went to the root of the problem in his decision, quoting President George Washington's farewell address warning of associations of "cunning, ambitious and unprincipled men" who could subvert the will of voters. Lewis went on to write the case "goes to the very foundation of our representative democracy."

    With gerrymandering becoming a nationwide problem in the wake of the 2010 Republican wave, Florida voters in 2010 passed two constitutional amendments known as the Fair Districts amendments which required lawmakers to draw legislative and congressional seats more compactly, within existing geographic and local government boundaries and without intentional favoritism toward political parties or incumbents. Shortly after the passage of the amendments, Republicans drafted their gerrymandered districts and the Florida Legislature passed its first attempt at maps. The Florida Supreme Court in 2012 ruled the state Senate seats violated the mandate and ordered them redrawn, after the League of Women Voters of Florida and other groups filed suit in state court, alleging Republican lawmakers violated the Fair Districts standards.

    In his ruling, Lewis found fault with Central Florida districts, in particular, District 5 held by Corrine Brown, D-Jacksonville, which Lewis wrote was unnecessarily drawn to protect Brown, and District 10 held by Daniel Webster, R-Winter Garden, which "was drawn to benefit the Republican Party and the incumbent."

    Lewis determined GOP lawmakers, staffers and consultants worked together behind the scenes to draw Republican-friendly seats, writing there was "too much circumstantial evidence of it, too many coincidences" to uphold the maps.

    Lewis found Republicans had "made a mockery of the Legislature's proclaimed open and transparent process" by working to draw partisan maps "in the shadow of that process."

    Read more on the case and Lewis’ decision here.

  • July 3, 2013
    Guest Post

    by Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School. Schwinn is also Co-Editor, The Constitutional Law Prof Blog.

    The Supreme Court and the State of Texas wasted little time last week in revealing the full implications of the Court’s ruling in Shelby County v. Holder. Between the Court’s rulings and the State’s reactions, we will soon see fundamental changes to Texas’s election law that will almost surely have a retrogressive effect on the right to vote of racial minorities in that state.

    We all know that last week the Court in Shelby County gutted the preclearance provision of the Voting Rights Act by striking the coverage formula for preclearance. The ruling lifted the preclearance requirement for all previously covered jurisdictions, including Texas, and rendered preclearance dormant unless and until Congress can rewrite a coverage formula. 

    But less widely known is this: Just two days after the Court issued the Shelby County ruling, it issued orders vacating two federal court decisions denying preclearance to two proposed changes to Texas’s election law -- a new and stringent voter-ID requirement, and redistricting maps for Texas’s congressional and state legislative districts.  That same day, the Texas Attorney General announced that those proposed changes would go into effect -- that after Shelby County these changes “need not . . . go through the lengthy and costly federal preclearance process because of Tuesday’s ruling by the U.S. Supreme Court . . . .” 

  • June 27, 2013
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law

    In  Shelby County, AL v. Holder, the Supreme Court, in a 5-4 decision split on ideological lines, declared unconstitutional the formula used under the Voting Rights Act of 1965 to determine which states and localities must receive pre-approval of their voting rights laws. This decision, which effectively ends the preclearance practice meant to preserve minority voting rights, will transform the right to vote for years to come. Once again, relying on the myth of racial progress, the Supreme Court failed to confront the racial balkanization in voting that exists, and it ultimately crippled the role that Voting Rights Act has in limiting it.

    This lawsuit was brought by Shelby County, Ala. This county, along with the rest of Alabama, as well as Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia, Alaska, Arizona, and parts of seven other states (known as the “covered jurisdictions”) was required under Section Five of the Voting Rights Act to have any change in their election laws approved (or “precleared”) by the U.S. Department of Justice. The covered jurisdictions were selected for the preclearance requirement according to a formula set out in Section Four of the act. The formula considered the jurisdiction’s past history of voting rights violations, current violations, white and minority voting rates, and other factors.  Shelby County argued that both Section Five’s preclearance requirement and Section Four’s coverage formula were unconstitutional. The Court struck down the Section Four formula.

    Chief Justice Roberts' opinion for the five-justice conservative majority relied on two premises. First, the opinion stated that each state is due “equal sovereignty,” that is each state has power to regulate matters left to the states, including voting, to the same extent as other states. As innocuous as that might sound, consider Roberts’s second premise:  “the conditions that originally justified [the preclearance measures that justified differing treatment of states] no longer characterize voting in the covered jurisdictions.” Slip op. at 2.  Roberts pointed to substantial progress in voter participation and the increase in minority elected officials in the time from the passage of the act until now.  Id. at 13-15. Yet, Roberts continued, the current coverage formula does not reflect this reality.  “Coverage today is based on decades-old data and eradicated practices.”  Slip op. at 18.  “Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.”  Id. 

  • June 25, 2013
    Guest Post

    by Gabriel "Jack" Chin, Professor of Law at the University of California, Davis, School of Law. He was co-author of an amicus brief in Shelby County, and of The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty, published in the Harvard Civil Rights-Civil Liberties Law Review.

    Perhaps politicians will no longer do anything they can get away with to win elections, perhaps legislatures will no longer entrench themselves through districting and gerrymandering, perhaps, in short, in the recent past human nature has changed entirely.  If not, though, the Supreme Court’s 5-4 decision invalidating the coverage formula of the preclearance provisions of Section 5 of the Voting Rights Act of 1965 may well come to be regarded as one of the Court’s grand overreaches.  As obtuse on race as Dred Scott, as judicially activist as Lochner, Shelby County moves us a long step away from the goal of reliable elections reflecting the will of the majority.

    The underlying problem is that African Americans are, and have been, bloc voters to a degree matched by no other racial or ethnic group.  There is, therefore, a potential electoral payoff for conservatives in suppressing or manipulating their right to vote that exists in no other context.  African Americans also hold the balance of power in many jurisdictions, and because of residential segregation, can be subject to discriminatory treatment in a way that “Democrats” or even Asians or Latinos cannot.  Accordingly, African Americans have always been an irresistible target for manipulation and disenfranchisement, and volumes of creative electoral provisions have been created to prevent them from voting effectively.  Critically, the impulse to discriminate will remain even if racial animus has diminished, so long as political rewards for suppression remain in place.

    In Shelby County, the Court, per Chief Justice Roberts, insisted that our nation had changed.  It held that Congress in reenacting the Voting Rights Act in 2006, should not have used a coverage formula based on practices and registration figures from the 1960s and 1970s. The extraordinary burdens of the preclearance provisions, it explained, had to be justified by current conditions.  For a variety of reasons, many outlined in Justice Ginsburg’s dissent, the holding is not persuasive.

  • June 25, 2013

    by Jeremy Leaming

    The Supreme Court’s conservative majority has been itching to gut the landmark Voting Rights Act for some time and today it took a big step toward doing so. The conservative bloc led by Chief Justice John Roberts Jr. invalidated Section 4 of the Voting Rights Act (VRA), which includes a formula for determining the states, towns and localities that must obtain approval or preclearance from the federal government for proposed changes to their voting laws and procedures.

    In its 2009 opinion in Northwest Austin Municipal Util. Dist. No. One v. Mukasey, the conservative justices avoided the constitutional challenge to the heart of the Voting Rights Act, but nonetheless reiterated their desire to gut it.

    This time around a constitutional challenge brought by officials in a mostly white Alabama County gave the conservative bloc what it needed. Writing for the majority in Shelby County v. Holder, Roberts noted that in Northwest, his conservative colleagues “expressed serious doubt about the Act’s continued constitutionality.”

    Roberts continued, “We explained that Sec. 5 ‘imposes substantial federalism costs’ and ‘differentiates between States, despite our historic tradition that all the States enjoy equal sovereignty.’ We also noted that ‘[t]hings have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.’ Finally we questioned whether the problems that Sec. 5 meant to address were still ‘concentrated in the jurisdictions singled out for preclearance.’” Sec. 4 includes the forumla for deciding what jursidictions must comply with the VRA's Sec. 5 preclearance provision. 

    Though the case raised constitutional claims of equality among Americans, like ensuring minorities are not deprived of a fundamental right to vote, the conservative justices in Shelby were much more interested in equality among the states. As they put, citing Northwest, a “fundamental principle of equal sovereignty. Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority.’ Indeed, ‘the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.’”

    “The Voting Rights Act sharply departs from these basic principles,” Roberts wrote. “It suspends ‘all changes to state election law – however innocuous – until they have been precleared by federal authorities in Washington, D.C.”

    The conservative bloc was also incredibly confident that voter discrimination in the covered jurisdictions, mostly in the South, is a thing of the past. The majority pointed to an increase in minority registration and turnout.

    While voter discrimination allegedly subsided, Congress made the VRA more stringent and its formula for determining covered jurisdictions remained static, the majority groused. “Coverage today is based on decades-old data and eradicated practices,” Roberts wrote.

    When Congress reauthorized the VRA in 1996, which it did overwhelmingly, it should have altered its coverage formula, Roberts argued. “It instead reenacted a formula based on 40-year-old facts having no logical relationship to the present day,” he said.

    Roberts also claimed that the majority was carefully invalidating a provision of the VRA, and maintained the Court was providing “no holding” on Section 5. Instead Roberts said Congress could create a new formula.

    The dissent, lodged by Justice Ruth Bader Ginsburg and joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, however, found that the majority had usurped a job for Congress, and in a rather sloppy manner. (Congress, Ginsburg wrote, should be given deference in its constitutional authority to create appropriate legislation to enforce the 14th and 15th Amendments.)