GERRYMANDER

Abbot v. Perez

Issues

By adopting court-created remedial interim redistricting plans, did the Texas legislature engage in intentional racial discrimination, vote dilution, and racial gerrymandering in violation of the Constitution and the Voting Rights Act, and does the Court have jurisdiction to hear the case?

 

After a federal court struck down the Texas State Legislature’s redistricting plans as racially discriminatory and issued substantially similar interim plans for the 2012 election, the Legislature adopted those interim plans as law. However, Texas Voters (both individual voters and organizations) claim that these plans are still infected by discriminatory intent and effect. Texas argues that its Legislature did not engage in racial discrimination, vote dilution, or racial gerrymandering. Further, Texas insists that when its new Legislature repealed the old plans and adopted court-created new plans, any purported discriminatory intent was eliminated. Voters counter that the Supreme Court should adhere to the lower court’s finding of discrimination, which was not cleansed by a legislative workaround that essentially reenacted the original, problematic plans. This case requires the Supreme Court to determine when a state legislature exhibits a discriminatory intent in reconfiguring its electoral districts and how deeply that intent permeates into subsequent legislation. Further, this case may redefine the parameters for courts to evaluate redistricting, balancing the needs to protect voters’ rights and preserve state sovereignty. 

Questions as Framed for the Court by the Parties

1) Whether the district court issued an appealable interlocutory injunction when it invalidated Texas’ duly enacted redistricting plan and ordered the parties to appear at a remedial hearing to redraw state congressional districts unless the governor called a special legislative session to redraw the congressional map within three days; (2) whether the Texas legislature acted with an unlawful purpose when it enacted a redistricting plan originally imposed by the district court to remedy any potential constitutional and statutory defects in a prior legislative plan that was repealed without ever having taken effect; (3) whether the Texas legislature engaged in intentional vote dilution when it adopted Congressional District 27 in 2013 after the district court found, in 2012, that CD27 did not support a plausible claim of racially discriminatory purpose and did not dilute Hispanic voting strength because it was not possible to create an additional Hispanic opportunity district in the region; and (4) whether the Texas legislature engaged in racial gerrymandering in Congressional District 35 when it simply adopted the district unchanged as part of the court-ordered remedial plan.

In 2011, Texas’ 82nd Legislature (“Legislature”) proposed Plans C185 and H283 (“2011 Plans”) to change its voting districts before the 2012 elections. Perez v. Abbott, 274 F. Supp. 3d 624, 632 (W.D. Tex. 2017).

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Benisek v. Lamone

Issues

The Court will consider three issues: (1) did the district court err when it found that, for First Amendment retaliatory gerrymandering claims, establishing an actual, concrete injury requires proof that the gerrymandered map has dictated and will continue to dictate the results of every election following the gerrymander; (2) did the district court err when it held that burden-shifting is not applicable to First Amendment retaliation challenges to partisan gerrymandering in Mt. Healthy City Board of Education v. Doyle; and (3) did the district court err in finding that the record does not prove that the 2011 gerrymander dictated the Democratic victories in 2012, 2014, and 2016 in Maryland’s Sixth Congressional District?

In 2012 the State of Maryland, under Democratic Governor Martin O’Malley, and with the help of NCEC Services, a company specializing in electoral analytics and political strategy, redrew its Sixth Congressional District to comply with one-person-one-vote rules. This resulted in the exclusion of approximately 66,000 registered Republicans and the inclusion of 24,000 Democrats in the District. O. John Benisek alleges that the new Sixth District was the result of backdoor meetings intended to consolidate Democratic control of the District. Linda Lamone, the State Administrator of Elections, on the other hand, contends that the current district lines more closely resemble the historic party composition of the voters. Benisek argues that this redistricting treats Republicans unfavorably in violation of the First Amendment. Lamone counters that this is not a valid claim in court because no rigorous judicial standard can be created to assess the impact of gerrymandering in redistricting efforts. Lamone contends that the Plaintiffs cannot put forth a clear, neutral, and judicially manageable standard for these cases, and thus the political process should resolve the issue. But Benisek responds that this is a First Amendment case where the correct inquiry is whether voters suffered retaliation for their political beliefs. The outcome of this case will have implications for the proper role of the legislature and the judiciary in the redistricting process and for levels of citizen civic engagement and political influence.

Questions as Framed for the Court by the Parties

(1) Whether the majority of the three-judge district court erred in holding that, to establish an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander, a plaintiff must prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map; (2) whether the majority erred in holding that the Mt. Healthy City Board of Education v. Doyle burden-shifting framework is inapplicable to First Amendment retaliation challenges to partisan gerrymanders; and (3) whether, regardless of the applicable legal standards, the majority erred in holding that the present record does not permit a finding that the 2011 gerrymander was a but-for cause of the Democratic victories in the district in 2012, 2014, or 2016.

Before 1991, Maryland’s Sixth Congressional District was composed of more registered Democrats than registered Republicans. Brief of Appellees, Lamone et al. at 3. However, in 1991, the district lines were redrawn, leaving registered Republicans outnumbering registered Democrats.

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Patrick McCrory and A. Grant Whitney, Jr. v. David Harris and Christine Bowers

Issues

Did North Carolina’s 2011 congressional redistricting plan improperly use race as the primary motivating factor in creating the first and twelfth voting districts? 

The Court must consider whether the proposed redistricting plans to North Carolina’s Congressional District 1 and Congressional District 12 constitute unconstitutional gerrymandering. Appellants Patrick McCrory, Governor of North Carolina, and A. Grant Whitney, Jr., Chairman of the North Carolina State Board of Elections, contend that the redistricting plans were not drawn based on race but rather were politically motivated. Appellees David Harris and Christine Bowser claim that direct and circumstantial evidence demonstrates that race was the predominant factor in the redrawing of district lines. The case is significant because it will address whether complying with the Voting Rights Act satisfies a compelling government interest and whether gerrymandering challengers must provide an alternative map when they present direct and circumstantial evidence of race-based redistricting. 

Questions as Framed for the Court by the Parties

In 2011, the North Carolina General Assembly drew a new congressional redistricting map to ensure that North Carolina’s congressional districts would comply with the one-person, one-vote requirement in the wake of the 2010 census. Shortly thereafter, several organizations brought suit in state court challenging two of those districts as unconstitutional racial gerrymanders. The state court rejected their claims in full, concluding that the General Assembly drew one district based on political, not racial, considerations, and that it drew the other in a manner narrowly tailored to achieve the State’s compelling interest in complying with the Voting Rights Act. Dissatisfied with that result, two members of one of the plaintiff organizations brought this suit challenging the same two districts on the same grounds. The parties even submitted the state court record in full.  Without even acknowledging the direct conflict with the state court case that its decision produced, the district court reached precisely the opposite conclusion.   

The question presented is: 

Whether the First and Twelfth Districts of North Carolina’s 2011 congressional redistricting plan are unconstitutional racial gerrymanders.

North Carolina voters have repeatedly challenged two North Carolina voting districts in a redistricting plan intended to comply with the Voting Rights Act of 1965 (“VRA”). The VRA aims to eliminate racial discrimination in voting by providing every voter with an equal opportunity to elect a candidate of his or her choice. See Harris v. McCrory, No. 1:13-cv-949, at 5 (M.D.N.C. Feb. 5, 2016).

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Wittman v. Personhuballah

Issues

  1. Did the Virginia Legislature impermissibly use race as a predominant factor in creating its Third Congressional District?
  2. And do Republican congressmen, alleging that the redistricting process hurt them politically, have standing to challenge the ruling that struck down the original redistricting plan? 

 

In 2012, Virginia’s congressional redistricting plan increased the Third Congressional District’s black voting-age population from 53.1 percent to 56.3 percent. The Supreme Court will consider whether the Virginia’s redistricting plan impermissibly relied on race in drawing congressional districts, and whether Republican congressmen have standing to appeal the lower court’s ruling, which struck down the original plan. The appellants in this case including Congressman Wittman contend that political considerations, not race, predominated the redistricting plan. They also argue that the Republican congressmen were injured because the redistricting plan affected their reelection chances. But several voters including Gloria Personhuballah argue that the Third District was drawn with race as the predominant factor. Personhuballah maintains that the Republican congressmen lack standing because they have not suffered any injury as a result of redistricting. This case could change who can challenge potentially discriminatory redistricting plans, and what constitutes racial gerrymandering. 

Questions as Framed for the Court by the Parties

1. Did the court below err in failing to make the required finding that race rather than politics predominated in District 3, where there is no dispute that politics explains the Enacted Plan?


2. Did the court below err in relieving Plaintiffs of their burden to show an alternative plan that achieves the Legislature’s political goals, is comparably consistent with traditional districting principles, and brings about greater racial balance than the Enacted Plan?

3. Regardless of any other error, was the court below’s finding of a Shaw violation based on clearly erroneous fact-finding?

4. Did the majority err in holding that the Enacted Plan fails strict scrutiny because it increased District 3’s black voting-age population percentage above the benchmark percentage, when the undisputed evidence establishes that the increase better complies with neutral principles than would reducing the percentage and no racial bloc voting analysis would support a reduction capable of realistically securing Section 5 preclearance?

5. Do Appellants have standing to appeal where it is undisputed that any judicial remedy will change at least one district represented by an Appellant and harm that Appellant’s re-election chances and interests as a Republican voter?

In 2012, the Virginia legislature approved a congressional districting plan (the “2012 plan”). See Page v. Virginia State Bd. of Elections, Civil Action No. 3:13cv678, 2015 WL 3604029, at *3 (E.D. Va.

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