Issues
- Does Arizona’s redistricting plan violate the one-person, one-vote principle of the Equal Protection Clause of the U.S. Constitution by creating unequally populated legislative districts?
- If so, must Arizona explain the deviation between districts; and, are satisfying partisan political objections or achieving preclearance under section 5 of the Voting Rights Act permissible rationales?
The Supreme Court will decide whether Arizona’s redistricting plan violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution by diluting the voting power of its residents. The Court will also consider whether Arizona must justify deviations in population between districts, and what kind of justification Arizona may properly raise. In 2000, Arizona voters approved a ballot initiative creating the Arizona Independent Redistricting Commission (the “Commission”), entrusted with redrawing the state’s legislative and congressional districts for future elections. In 2011–2012, the Commission created a new legislative map, which caused population deviation between districts. On April 27, 2012 appellant Wesley W. Harris and others brought suit against the Commission in District Court for the District of Arizona, challenging the new legislative map. Harris argues that the Commission violates the one-person, one-vote principle of Equal Protection Clause by drawing unequal districts that dilute the voting power of citizens depending on where they live. According to Harris, neither advancing partisan goals nor obtaining preclearance under Section 5 of the Voting Rights Act are legitimate reasons to draw voting districts of unequal population. The Commission contends that where the difference between the most densely and least densely populated districts is less than 10 percent, the Commission does not need to justify why those districts were not drawn to be precisely equal. Moreover, the Commission argues that the deviations in population were the result of a good-faith effort to satisfy section 5 preclearance. The Court’s decision will affect redistricting plans nationwide, and could impact the way in which states consider race or ethnicity in the redistricting process.
Questions as Framed for the Court by the Parties
- Does the desire to gain partisan advantage for one political party justify intentionally creating over- populated legislative districts that result in tens of thousands of individual voters being denied Equal Protection because their individual votes are devalued, violating the one-person, one-vote principle?
- Does the desire to obtain favorable preclearance review by the Justice Department permit the creation of legislative districts that deviate from the one-person, one-vote principle? And, even if creating unequal districts to obtain preclearance approval was once justified, is this still a legitimate justification after Shelby County v. Holder, 133 S. Ct. 2612 (2013)?
Facts
In 2000, Arizona voters approved a ballot initiative creating the Arizona Independent Redistricting Commission, entrusted with redrawing the state’s legislative and congressional districts for future elections. The Commission is comprised of five members: “two Republicans, two Democrats, and one unaffiliated with either major party.” The party leaders from both chambers of the state legislature choose one member each, and the four selected Commissioners then chose the final, unaffiliated member to serve as chairman. The full Commission then selects consultants to assist in the mapping process and attorneys to offer legal advice regarding the redistricting plan.
The Commission’s goals are twofold. The primary objective is to ensure redistricting complies with the U.S. Constitution and the federal Voting Rights Act (“VRA”); the secondary objective centers on traditional reapportionment factors, such as preserving existing communities and geographical contiguity. Any reapportionment scheme by Arizona is subject to the VRA’s section 5 preclearance requirement: the plan must neither deny nor abridge “the right to vote on account of race or color.” A plan does not satisfy preclearance if it produces a “retrogression” in the ability of racial minorities to cast ballots. Retrogression occurs when a redistricting plan diminishes the opportunity for racial minorities to elect their preferred candidates. “There is no retrogression so long as the number of ability-to-elect districts does not decrease from” that of the previous legislative map. Ability to elect means that minority groups can elect their preferred candidate if minorities constitute a majority of the voting district (“majority-minority district”), or if minority groups can elect their preferred candidate in coalition with another district (a “coalition district”) or with white voters (“cross over districts”). The Commission prioritized obtaining preclearance, because Arizona had never obtained preclearance review on its first attempt.
Based on the results of the 2010 census, the Commission began the redistricting of Arizona’s legislative map in late 2011. The Commission’s mapping consultants and experts initially agreed that Arizona contained at least nine ability-to-elect districts in the state’s previous legislative map. But because of the complex preclearance process administered by the Department of Justice (“DOJ”), the Commission could not verify that nine was in fact the correct benchmark number. With this in mind, the Commission devised a plan with ten ability-to-elect districts so as to increase the probability of obtaining preclearance on the first attempt. Creating additional ability-to-elect districts meant shifting geographical boundaries on the map so that a minority population would either become a majority of the voters in a given district, or have the ability to elect a preferred candidate. The creation of ten ability-to-elect districts led to population disparity in various districts. Although redistricting plans generally should contain districts with approximately equal populations, the Commission’s attorneys advised that some deviation would be permissible in the pursuit of Section 5 preclearance. Despite some opposition by Republican members, the Commission approved and submitted the final map to the DOJ, which was pre-cleared in April 2012.
On April 27, 2012, a group of Arizona voters from purportedly overpopulated districts, including appellant Wesley W. Harris, brought suit against the Commission in District Court for the District of Arizona, challenging the new legislative map. They argued that the reapportionment violated the one-person, one-vote principle of the Equal Protection Clause of the Fourteenth Amendment, by creating overpopulated Republican-leaning districts and under-populated Democratic-leaning districts for partisan reasons. The population disparity, the voters argued, inflated the value of any single vote in an under-populated district and decreased the value of any single vote in an overpopulated district, thus violating the one-person, one-vote principle. In a per curiam decision, the district court ruled for the Commission, finding the population disparity in the redrawn districts permissible, because the deviation was not a result of partisan gerrymandering but rather “a result of good-faith efforts to comply with” the VRA. The plaintiff voters appealed the district court’s ruling to the Supreme Court under 28 U.S.C. § 1253, and on June 30, 2015, the Supreme Court noted probable jurisdiction over the questions presented in the case.
Analysis
Harris argues that the one-person, one-vote principle requires voting districts of substantially equal population. Furthermore, Harris contends that the Commission must justify deviations in population, and that neither political motivations nor section 5 of the VRA permit the Commission from drawing unequal districts. The Commission contends that population deviations below 10 percent do not require justification, and that even if they did, the good-faith desire to obtain section 5 preclearance under the VRA remains a legitimate reason for drawing districts of unequal population.
WHAT DOES ONE-PERSON, ONE-VOTE MEAN, AND MUST THE COMMISSION JUSTIFY POPULATION DEVIATIONS?
Harris contends that the principle of one-person, one-vote requires voting districts of as nearly equal population as is practical. Harris does not claim that exact equality of population is a constitutional requirement. But Harris does assert that under the Court’s decision in Reynolds v. Sims, 377 U.S. 533 (1964), divergences from population equality must be based on legitimate considerations that advance a rational state policy. Harris argues that in this case, the Commission lacked a legitimate reason to draw districts of unequal populations, and that inflating votes in sparsely populated districts while diluting votes in heavily populated districts was not required to advance any neutral state policy. Harris argues that, even though the population difference between the most dense and least dense districts is less than 10 percent, the Commission must still justify their decision to draw unequal districts. If the Commission is not required to justify the deviation, then Harris claims that the Court would create a ten-percent safe harbor, in which states could engage in invidious discrimination or partisanship so long as deviations were fewer than 10 percent. Harris maintains that such a harbor flies in the face of the one-person, one-vote principle, which “is of constitutional import.”
But the Commission argues that the Court has held that minor deviations in population between districts, even resulting from partisanship, are permissible. Specifically, the Commission claims that deviations resulting in less than 10 percent population difference between the most densely and least densely populated districts are acceptable, and require no justification. The Commission argues that the Court has recognized that small deviations in population do not “substantially dilute the weight of individual votes in the larger districts.”
ARE THERE JUSTIFICATIONS FOR THE DEVIATIONS?
PARTISANSHIP
Harris claims that the Commission intentionally redrew districts for partisan political reasons, but argues that advancing partisan goals is not a legitimate interest. Harris claims that the Commission could have drawn districts of nearly equal population, but they failed to do so to confer a political benefit on certain parties. Harris contends that this runs contrary to the purpose of the Commission, which was Arizonans’ “desire to remove partisanship from Arizona’s redistricting process.”
The Commission argues that Harris’ argument misrepresents the record. Specifically, the Commission argues that the lower court found that there was no political animus in the redistricting plan. Instead, the Commission argues that the population deviations were the result of its “good faith efforts to achieve preclearance under the Voting Rights Act.” The Commission contends that Harris has not offered concrete evidence of political partisanship. Moreover, the Commission asserts there is a strong “correlation between racial and ethnic identity and party support in Arizona.” Accordingly, the Commission maintains that some districts with high concentration of minority voters will “lean Democratic.” The Commission concludes that the correlation is statistical, and not intentional.
OBTAINING VRA PRECLEARANCE
Harris claims that the Commission’s desire to obtain section 5 preclearance from the DOJ is not a legitimate reason to draw districts of unequal population, because the Court’s decision in Shelby County v. Holder, 570 U.S. __ (2013), struck down the formula that subjected Arizona to section 5 preclearance in the first place. Moreover, Harris claims that the VRA does not authorize states to create districts of unequal population in pursuit of preclearance. Harris contends that the Commission’s claiming the VRA “compelled” unequal districts flatly contradicts the purpose of the VRA, to ensure equal protection. “A statute cannot command a constitutional violation,” Harris states. Harris maintains that the Commission needed only to avoid reducing the amount of minority ability-to-elect districts, rather than increase that number in an effort to “overshoot” preclearance.
The Commission maintains that it drew districts of unequal population in a good-faith effort to obtain preclearance under Section 5 of the VRA. Accordingly, the Commission contends that it was justified in increasing the difference between the most densely and least densely populated districts. The Commission argues that favorable section 5 preclearance review is a legitimate consideration to enforce a rational state policy, because these principles are stated in the Arizona constitution, and since the VRA remains federal law. Furthermore, the Commission contends that the Court’s holding in Shelby County does not require the invalidation of all plans drawn to comply with section 5, because Arizona and the Commission made the choice to prioritize preclearance over other goals. Specifically, because the Court’s holding in Shelby County relies on principles of state sovereignty, and because Arizona made the sovereign choice to prioritize section 5 preclearance over obtaining equally populated voting districts, invalidating the Commission’s redistricting plan contradicts those very principles of state sovereignty.
Discussion
The Supreme Court will decide two issues. First, the Court will determine whether Arizona’s redistricting plan violates the one-person, one-vote principle of the Equal Protection Clause by creating legislative districts of unequal population. If so, the Court will next decide whether political partisanship or a desire to obtain favorable preclearance review by the DOJ justifies such action. Harris argues that neither partisan advantage nor the desire to obtain favorable preclearance review justifies districts of unequal population that violate the one-person, one-vote principle. But the Commission argues that the population deviations are de minimis, and thus do not require justification under the Court’s Equal Protection jurisprudence. The Court’s decision will affect redistricting plans nationwide, and could impact the way in which states consider race or ethnicity in the redistricting process.
EFFECT ON REDISTRICTING PROCESSES NATIONWIDE
The Arizona Secretary of State (“Secretary”), in support of Harris, argues that districts should not be over- or under-populated on the basis of voter classifications like race or political affiliation. The Secretary asserts that the Court has never recognized any “legitimate considerations” of the state that justify its “systematic dilution and enhancement of the weight of votes.” The Secretary concedes that permissible deviations in population can occur, but that those deviations must be geared toward a legitimate end, such as “respecting municipal boundaries.” The Secretary contends that population equality across a state’s legislative districts must be the goal for all redistricting plans in furtherance of the one-person, one-vote principle.
But the United States, in support of the Commission, argues that partisan politics is inevitably intertwined with any redistricting process, and attempting to untangle the two would increase litigation and the federal judiciary’s control over a traditional power of the states. Former DOJ officials agree that an adverse ruling would upset political stability nationwide, as more litigants bring constitutional equal apportionment lawsuits, even when population deviations are arguably minor. The Former DOJ Officials contend that over a thousand redistricting plans that have been pre-cleared could be affected if the Court finds population deviation in legislative districts impermissible. According to the United States, reapportionment is a task best left for the states, and any involvement by the federal judiciary risks unnecessary intrusion.
The Southern Coalition for Social Justice (“SCSJ”), in support of neither party, argues that overt political considerations should be detached from the redistricting process. SCSJ contends that the Court has never recognized partisanship as legitimate grounds for redistricting. The SCSJ argues that partisan redistricting discriminates against certain voters and decreases electoral competition. SCSJ argues that partisan gamesmanship in Wake County, North Carolina, allowed a Republican-controlled General Assembly to gerrymander school districts to their advantage, by “overpopulating Democratically-leaning areas.” The Court of Appeals for the Fourth Circuit struck down the redistricting plan as “designed to pit rural and urban voters against one another, and intended to favor incumbents of one political party over those of another.”
RACE AND ETHNICITY CONSIDERATIONS IN THE REDISTRICTING PROCESS
The Secretary, in support of Harris, argues that there is no need to classify voters on the basis of race or ethnicity in order to create over- or under-populated legislative districts. According to the Secretary, doing so creates a preferred class of minority voters in the under-populated districts, whose votes become relatively more valuable than those of voters in the overpopulated districts. These discriminatory tactics must not stand, the Secretary argues, to ensure voting equality for all Arizona citizens.
The Former DOJ officials argue that states should consider race and ethnicity in redistricting plans, as it serves the state’s legitimate interest in protecting minority voters from disenfranchisement. Moreover, the Navajo nation argues that race plays an important role in redistricting in Arizona, because of Arizona’s unique “geography and demography,” which includes large swaths of federal land. The Navajo Nation explains that Arizona is sparsely populated in many areas, particularly in areas where the majority of Native Americans live. Accordingly, to preserve the ability of Native Americans to elect the representative of their choosing, the Nation contends that some districts must be under-populated.
Conclusion
The Supreme Court will determine whether Arizona’s redistricting plan satisfies the one-person, one-vote principle of the Equal Protection clause. The Court will also consider whether Arizona must justify deviations in population between voting districts, and whether satisfying political motivations or section 5 permit such deviations. Harris argues that the one-person, one-vote principle requires voting districts of substantially equal population. Furthermore, Harris contends that the Commission must justify deviations in population, and that it could not do so here. The Commission contends that population deviations below 10 percent do not require justification, and that a good-faith desire to obtain section 5 preclearance under the VRA remains a legitimate reason for drawing districts of unequal population. The Court’s decision will affect redistricting plans nationwide, and could impact the way in which states consider race or ethnicity in the redistricting process.