Amdt14.S1.5.2.6 Racial Vote Dilution and Racial Gerrymandering

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Much of the Supreme Court’s redistricting jurisprudence has been prompted by disputes concerning the interplay between the requirements of the Voting Rights Act (VRA) and the constitutional standards of equal protection.1 That is, under certain circumstances, the VRA may require the creation of one or more “majority-minority” districts in a congressional redistricting plan in order to prevent the denial or abridgement of the right to vote based on race, color, or membership in a language minority.2 A majority-minority district is one in which a racial or language minority group comprises a voting majority. The creation of such districts can avoid minority vote dilution by helping ensure that racial or language minority groups are not submerged into the majority and, thereby, denied an equal opportunity to elect candidates of their choice.

In its landmark 1986 decision Thornburg v. Gingles, the Supreme Court established a three-pronged test for proving vote dilution under Section 2 of the VRA.3 Under this test, (1) the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the minority group must be able to show that it is politically cohesive; and (3) the minority must be able to demonstrate that the majority votes sufficiently as a bloc to enable the majority to defeat the minority group’s preferred candidate absent special circumstances, such as the minority candidate running unopposed.4 Further interpreting the Gingles three-pronged test, in Bartlett v. Strickland, the Supreme Court ruled that the first prong of the test-requiring a minority group to be geographically compact enough to constitute a majority in a district-can only be satisfied if the minority group would constitute more than 50% of the voting population in a single-member district.5

In addition to the VRA, however, congressional redistricting plans must also conform with standards of equal protection under the Fourteenth Amendment to the Constitution. According to the Supreme Court, if race is the predominant factor in the drawing of district lines, above other traditional redistricting considerations-including compactness, contiguity, and respect for political subdivision lines-then a “strict scrutiny” standard of review is to be applied.6 To withstand strict scrutiny in this context, the state must demonstrate that it had a compelling governmental interest in creating a majority-minority district and the redistricting plan was narrowly tailored to further that compelling interest.7 These cases are often referred to as “racial gerrymandering” claims because the plaintiffs argue that race was improperly used in the drawing of district boundaries.8 Case law in this area has revealed that there can be tension between compliance with the VRA and conformance with standards of equal protection.9

In a series of cases, the Supreme Court has clarified the standards for ascertaining a racial gerrymandering claim under the Equal Protection Clause. For example, the Court has determined that successful claims of racial gerrymandering require plaintiffs to prove that racial considerations were “dominant and controlling” in the creation of the districts at issue.10 The Court has also held that in determining whether race is a predominant factor in the redistricting process, and thereby triggering strict scrutiny, a court must engage in a district-by-district analysis instead of analyzing the state as an undifferentiated whole.11 Further, according to the Court, plaintiffs challenging a state legislative redistricting plan on racial gerrymandering grounds need not prove, as a threshold matter, that the plan conflicts with traditional redistricting criteria.12 Nonetheless, the Court has held that plaintiffs need “to overcome the presumption of legislative good faith” by demonstrating that a legislature drew a redistricting map “with invidious intent.” 13

In a 1993 ruling, Shaw v. Reno, the Supreme Court first recognized a claim of racial gerrymandering, holding that the challengers to a redistricting plan had stated a claim under the Equal Protection Clause of the Constitution. See 509 U.S. 630, 639–52 (1993) [hereinafter Shaw I]. back
52 U.S.C. §§ 10301, 10303(f). back
478 U.S. 30 (1986). back
Id. at 50–51 (citation omitted). The three requirements set forth in Thornburg v. Gingles for a Section 2 claim apply to single-member districts as well as to multi-member districts. See Growe v. Emison, 507 U.S. 25, 40–41 (1993) ( “It would be peculiar to conclude that a vote-dilution challenge to the (more dangerous) multimember district requires a higher threshold showing than a vote-fragmentation challenge to a single-member district.” ). back
556 U.S. 1, 25–26 (2009) (plurality opinion). back
See Miller v. Johnson, 515 U. S. 900, 916 (1995). See also, e.g., Vieth v. Jubelirer, 541 U.S. 267, 348 (2004) (listing traditional redistricting criteria to include contiguity, compactness, respect for political subdivisions, and conformity with geographic features like rivers and mountains). back
Miller, 515 U.S. at 916. back
See, e.g., Shaw I, 509 U.S. at 641 ( “Our focus is on appellants’ claim that the State engaged in unconstitutional racial gerrymandering.” ) back
See, e.g., id. at 653–57 (holding that if district lines are drawn for the purpose of separating voters based on race, a court must apply strict scrutiny review); Miller, 515 U.S. at 912–13 (holding that strict scrutiny applies when race is the predominant factor and traditional redistricting principles have been subordinated); Bush v. Vera, 517 U.S. 952, 958–65 (1996) (holding that departing from sound principles of redistricting defeats the claim that districts are narrowly tailored to address the effects of racial discrimination). back
See Easley v. Cromartie, 532 U.S. 234 (2001). back
See Ala. Legis. Black Caucus v. Alabama, 575 U.S. 254, 262 (2015). back
See Bethune-Hill v. Va. State Bd. of Elections, No. 15-680, slip op. at 10 (U.S. Mar. 1, 2017) (holding that “a conflict or inconsistency between the enacted plan and traditional redistricting criteria is not a threshold requirement or a mandatory precondition in order for a challenger to establish a claim of racial gerrymandering.” ). back
Abbott v. Perez, No. 17-586, slip op. at 23 (U.S. June 25, 2018). back