Laws Affecting the
Redistricting Law 2010
U. S. Department of Justice Civil Rights Division, Voting Section
|Federal Laws Governing Redistricting
The minority group in question must prove that:
1. It is sufficiently large and geographically compact to constitute a majority in a single-member district;
2. It is politically cohesive; and
3. In the absence of special circumstances, that bloc voting by the white majority usually defeats the minority’s preferred candidate.
The second part of the test, which is based on factors listed in the report of the senate committee that amended the language of section 2, lists additional factors to consider in determining whether, given the totality of the circumstances, vote dilution has occurred. Note, the test is based on a redistricting plans’ discriminatory effect, no purpose or intent is required to find a violation of section 2.
Retrogression (Section 5)
Section 5 of the VRA was originally established as a way for the federal government to directly interfere with state efforts to deny the right to vote to African American populations. This section empowered the Justice Department with oversight over any and all election laws and practices in a covered state. Specifically, covered jurisdictions must preclear any change affecting voting with either the Civil Rights Division of the Justice Department or the U.S. District Court for the District of Columbia. Initially section 5 preclearance focused on voter registration and ballot access issues but as redistricting became a requirement after the Supreme Court ruling in Baker v. Carr, redistricting plans were considered a change that affected voting and thus had to be precleared in covered jurisdiction.
By the mid 80’s, racial gerrymandering of minorities in redistricting plans came to the forefront as the Supreme Court recognized the potential for minority voter disempowerment when political district were drawn to limit the effects of rising minority voter registration. The general standard used for evaluating redistricting plans for preclearance was to disallow any ‘retrogression’ in the ability of minority voters to elect candidates of their choice. If the districting scheme allowed any backsliding on minority electoral success, it would not be precleared.
As preclearance of redistricting plans continued under section 5 of the VRA many covered jurisdictions found it politically advantageous to promote as many majority-minority districts as possible. The Justice Department also championed this strategy as a way to promote continued minority electoral success. However, in the 1990’s white voters sued under the 14th Amendment’s Equal Protection Clause claiming that many of these precleared minority-majority districts were gerrymanders themselves and that essentially, the constitution does not require a gerrymander to protect minority voters. The focus of these Equal Protection cases was the rather tortured shapes of districts that many states drew ostensibly in compliance with section 5. One such district in North Carolina was the focus of a case that made it to the Supreme Court in Shaw v. Reno.6 In Shaw, the Supreme Court struck down the district which used an interstate to connect geographically distant minority populations. The Shaw line of cases ultimately limited the extent to which states could draw district lines to create majority minority districts, although the cases did not make crystal clear what the standard was, only that obvious gerrymanders would not be permitted.
No plaintiff has ever had any success with claiming that a district or redistricting plan was unconstitutionally gerrymandered to deprive a political party of its constitutional rights. Surprisingly, a split Supreme Court did decide that such a claim could be heard and decided by a court. The major debate regarding partisan gerrymandering had been that such claims were not under the jurisdiction of the courts since courts have no jurisdiction over political questions. As its own branch of government, legislatures have full power and control over its own rules and procedures. The Supreme Court in Davis v. Bandemer7 however, decided that a controversy over whether a political map is unduly gerrymandered on a partisan basis could be adjudicated by the courts. However, the court set the bar exceedingly highly for a successful claim since redistricting is by its nature a political process. To date, no plaintiff has managed a successful partisan gerrymander claim.
5. Thornburg v. Gingles, 478 U.S. 30 (1980)
6. Shaw v. Reno, 509 U.S. 630 (1993)
7. Davis v. Bandemer, 478 U.S. 109 (1986)