On a current episode of the Touro Legislation Evaluate podcast, I used to be happy to host a well timed and incisive dialogue with Ruth Greenwood, Assistant Medical Professor and Director of the Election Legislation Clinic at Harvard Legislation Faculty.
On this episode, Professor Greenwood and I mentioned the authorized and political panorama of electoral districting. Extra particularly, our dialogue targeted on the Supreme Courtroom’s hands-off method to partisan gerrymandering and the pending constitutional problem to the Voting Rights Act (VRA).
For a complete evaluation of those important points, I invite you to hearken to our full dialogue, accessible here. With the help of Synthetic Intelligence (AI), I present a abstract under of the important thing factors of our dialog.
Gerrymandering Outlined
Professor Greenwood started our dialog by defining gerrymandering, tracing the idea again to its origins with Massachusetts Governor Elbridge Gerry in 1812. Whereas the time period initially described the drawing of bizarrely formed districts (a “salamander”), its fashionable which means is the drawing of electoral traces to hunt benefit for a selected group—be it a political occasion, a racial group, or a set of incumbents.
Professor Greenwood offered a thumbnail historical past of gerrymandering, from malapportionment by means of the Supreme Courtroom’s “one individual, one vote” jurisprudence within the Nineteen Sixties as much as partisan gerrymandering in the present day. As she elaborated:
- Malapportionment, the unique technique of gerrymandering, concerned creating districts of vastly unequal populations, diluting the ability of city voters.
- Within the Nineteen Sixties, the Supreme Courtroom entered the “political thicket,” making use of the Equal Safety Clause to mandate districts of equal inhabitants in line with the precept of “one individual, one vote.”
- With populations equalized, events in search of a bonus turned to classy strategies of “packing” and “cracking” voters primarily based on their identified political affiliations. That is the type of (political) gerrymandering pursued in the present day.
Professor Greenwood gave the next instance of recent gerrymandering: The 2012 Wisconsin election, by which Democrats gained 52 p.c of the statewide vote however secured solely 37 p.c of the state meeting seats—a “mistaken winner final result” that strikes many as basically anti-democratic.
The Federal Courts Step Again: Rucho v. Widespread Trigger (2019)
Professor Greenwood then mentioned the federal judiciary’s present stance on partisan gerrymandering. She detailed the Supreme Courtroom’s 2019 landmark choice in Rucho v. Widespread Trigger. (As Professor Greenwood famous within the podcast, she litigated Rucho from the trial degree to the Supreme Courtroom.) In a 5-4 opinion written by Chief Justice John Roberts, the Courtroom held that claims of partisan gerrymandering current a non-justiciable political query. Whereas conceding that “extreme” excessive partisan was “incompatible with democratic rules,” the bulk however held that federal courts lacked a “manageable commonplace” to find out when lawful political concerns crossed the road into unconstitutional partisanship. The Courtroom concluded that political gerrymandering should be addressed primarily by the legislative branches, not the federal courts.
Justice Elena Kagan dissented. She argued that manageable requirements do exist and that the Courtroom was abdicating its constitutional obligation by holding that political gerrymandering claims weren’t justiciable in federal court docket. As Professor Greenwood famous, Kagan’s dissent emphasised that voters ought to select their politicians—not the opposite method round.
Now Pending on the Supreme Courtroom: Callais v. Landry
Along with political gerrymandering, Professor Greenwood and I mentioned litigation now pending on the Supreme Courtroom involving claims below Part 2 of the VRA.
Initially Professor Greenwood offered an outline of the VRA, which developed from defending the correct to vote (that’s, combatting disenfranchisement) to defending the worth of the vote (that’s, combatting vote dilution). The 1982 amendments to the VRA established a “outcomes check,” permitting plaintiffs to problem districting maps which have a disparate influence on minority voters whatever the map-drawers’ intent. This outcomes check was affirmed by the Supreme Courtroom in 1986 in Thornburg v. Gingles.
The “outcomes check” doctrine is now on the middle of a case now pending on the Supreme Courtroom, Callais v. Landry. Professor Greenwood, whose clinic is concerned within the case, set out the historical past of the case: Following the 2020 census, plaintiffs introduced a Part 2 lawsuit (Robinson v. Landry) arguing that Louisiana, which has a one-third Black inhabitants, should draw two, reasonably than one, majority-Black congressional districts.
Subsequently, after the Supreme Courtroom utilized Gingles in an Alabama case involving a problem to the state’s redistricting map, Allen v. Milligan (2023), the Louisiana legislature acted to adjust to the VRA by drawing a brand new map with a second majority-Black district.
This prompted a bunch of white voters, the plaintiffs in Callais, to sue. They argued that this new map was an unconstitutional racial gerrymander below the 14th Modification. Citing the Supreme Courtroom’s choice in Shaw v. Reno (1993) and different authorities, the plaintiffs asserted that race improperly “predominated” within the Louisiana’s legislature’s choice when creating the second majority-Black district.
In line with Professor Greenwood, Callais presents the next query: Does complying with Part 2 of the VRA inherently require an unconstitutional racial gerrymander? The Courtroom’s choice may decide the long run viability of the VRA.
The Path Ahead: Advocacy Inside and Outdoors the Courts
Professor Greenwood concluded that on this difficult authorized surroundings, advocates for truthful political illustration should pursue a multi-pronged technique. Whereas litigation stays a vital device for making a “report,” Rucho demonstrates the constraints of a court-centric method.
Probably the most sturdy answer, she argues, is exterior the judiciary. In states like Michigan, Professor Greenwood famous, activists efficiently used a poll initiative to create an impartial redistricting fee, thereby taking the map-drawing energy away from partisan legislators solely. This mixture of authorized advocacy and grassroots organizing, Professor Greenwood stated, is crucial to making sure that American democracy lives as much as its foundational rules.
Rodger Citron is the Affiliate Dean for Analysis and Scholarship and Professor of Legislation at Touro College, Jacob D. Fuchsberg Legislation Heart.
Ruth Greenwood is an Assistant Medical Professor and the Director of the Election Legislation Clinic at Harvard Legislation Faculty. She engages in litigation and advocacy on quite a lot of election regulation instances, whereas coaching the subsequent technology of election legal professionals. Professor Greenwood litigated two partisan gerrymandering instances from the trial degree to the Supreme Courtroom of the USA, Gill v. Whitford (2018) and Rucho v. Widespread Trigger.
