Racial Gerrymandering

The Court did not struggle with the measurement and definitional problems for racial gerrymandering as it did with partisan gerrymandering. This is mostly because racial classifications in general, invoke heightened scrutiny by the court, or on other words, the presumption exists that a racial classification violates the 14^th Amendment. In redistricting, this means that if a court determines that a district or map was constructed predominantly on the basis of race, the burden of proof is on the map-drawer to prove either that it was not or that it was done to comply with a statute; usually the Voting Rights Act.

Racial Gerrymandering 1.0: In Shaw v. Reno (509 U.S. 630 (1993)), the Supreme Court first recognized the constitutional claim of racial gerrymandering in 1993 when it invalidated a North Carolina congressional district because the 150 mile long district’s highly irregular shape and other evidence regarding how it was drawn indicated that its boundaries were drawn predominantly along racial lines. Under the strict scrutiny process, North Carolina justified the district by claiming it was drawn as a majority-minority Black district to comply with Section 2 of the Voting Rights Act. However, the Court rejected the state’s interpretation of what that section actually required. Among other requirements, Section 2 requires a minority group to be “sufficiently compact” within a geographic area before a majority-minority district should be drawn to comply with Act’s provisions; something that the district at issue was far from.

Racial Gerrymandering 2.0: The Shaw line of cases initially focused on evidence that line-drawers violated traditional redistricting principles such as compactness to invalidate districts as racial gerrymanders. These cases featured white plaintiffs challenging the aggressive creation of majority-minority districts. However in the 2010 redistricting cycle minority plaintiffs successfully challenged existing minority districts that were “packed” with additional minorities under the guise of compliance with the Voting Rights Act. Some of these cases involved “quotas” used by officials to ensure that a specific supermajority of minority voters were in those districts.

State legislative districts in Alabama and Virginia, and congressional districts in North Carolina were struck down as racial gerrymanders by the Supreme Court during the 2010 redistricting cycle. In each case, minority plaintiffs were successful at showing that the districts were drawn predominantly along the lines of race. The shapes of the districts however, did not play a significant role in convincing the court that the districts were an impermissible gerrymander.

It is important to note – and the Court has spoken to this- that while “race” will always play a role in drawing district lines – the census data used identifies racial demographics – the 14^th Amendment prohibits the improper use of race. The Voting Rights Act in particular, requires a district to be drawn predominantly along racial lines only when a list of detailed factors are present.