Will the Voting Rights Act stop Republicans from redistricting as they please?

The law, lawyers, and the court.
Nov. 10 2010 4:16 PM

Coloring Inside the Lines

Will the Voting Rights Act stop Republicans from redistricting as they please?

Gerrymandering.
Illinois 4th District

Republicans didn't just win a bunch of congressional seats last Tuesday. As astute commentators have observed, they won the power to preserve—even add to—those seats in future elections. In most places, state legislators draw districting plans for themselves and for members of Congress. Nineteen statehouses flipped last week, which means that many more congressional districts will be redrawn in the 2010 cycle in states under Republican control than under Democratic control. The GOP will surely use its legislative muscle to consolidate its wins, shoring up districts where Republicans won by a close margin and creating additional Republican seats where it can.

Does anything prevent the Republicans (or Democrats) from redrawing districts lines as they please? The Supreme Court has refused to place any explicit constraints on partisan districting. The "one person, one vote" principle still holds, but it turns out you can come up with a vicious partisan gerrymander and still draw districts with equal populations. All that's left to constrain either party is the Voting Rights Act. The purpose of the act is to protect racial minorities from discrimination, not to thwart partisan gerrymandering. But because the VRA tells a state what it must do for racial minorities, it necessarily limits what politicians can do for themselves. The statute has thus become the litigation vehicle of choice for both parties when they get walloped during the redistricting process. It's a cynical use of the law that is one of the crown jewels of the civil rights movement. But it's been effective thus far.

Two VRA provisions matter for redistricting. The first is Section 5, which applies mainly to states in the Deep South. These states must either "preclear" their districting plans with the Department of Justice or go to court. Section 5 thus gives DoJ officials considerable sway over line drawing. During the 1990s, for instance, DoJ used its behind-the-scenes power to push states to draw majority-minority districts. These efforts led to a dramatic increase in the number of black and Latino legislators in Congress—and perhaps to the election of more Republicans. Majority-minority districts tend to concentrate Democratic votes, thus reducing the party's influence in other parts of the state.

The second provision that matters for redistricting is Section 2, which authorizes both the DoJ and private parties to challenge districting plans that dilute the voting power of racial minorities. While these tussles emerge after districts have been drawn, politicians keep a close eye on Section 2's requirements when drawing lines. They don't want a successful lawsuit blowing up the political deal they've struck.

Barring a new Supreme Court decision, the VRA's provisions will serve as only a modest constraint on partisan gamesmanship during this redistricting cycle. In the wake of the Republican gains of the 1990s, Democrats feared that any push for more majority-minority districts would give the GOP an excuse to pack Democratic voters into a relatively small number of districts during the 2000 cycle. The party thus worked hard to convince courts that the VRA could be satisfied by "crossover districts," where blacks and Latinos elect their candidates of choice with the help of white voters. But a 2009 Supreme Court case called Bartlett v. Strickland made it harder for Democrats to push for new crossover districts, which likely helps the GOP. On the other side of the political ledger, the VRA will prevent Republicans from inflicting a total bloodbath on Democrats by forcing the GOP to maintain existing majority-minority districts and to draw new Latino-majority districts to keep pace with that group's massive growth. This all looks like pretty small potatoes when compared with the central role the VRA played in the partisan fights of the 1990 and 2000 cycles. What's more, the institution with the power to press for more dramatic change—the Department of Justice—is likely to be gun-shy about doing so. During the last two cycles, the Supreme Court repeatedly rebuked the DoJ for pushing the VRA's mandates well beyond what a majority of justices thought was appropriate.

Slide Show: The Most Gerrymandered Congressional Districts. Click image to launch.

DoJ is also unlikely to push in the same way this cycle given how close the Supreme Court came to finding Section 5 unconstitutional last year. While the court ultimately ducked the question, leading some to speculate that the justices don't have it in them to strike down an important part of the VRA, I think Section 5 remains vulnerable. And even if the court doesn't strike down Section 5 outright, it could cut back on Section 2, as it has before. This "death by a thousand cuts" would cost the court less political capital, but it would be no less lethal.

If the court knocks down Section 5, any redistricting plan negotiated in its shadow will be vulnerable. If the court trims back Section 2, any state that relied on its Section 2 obligations to justify race-based districting will find itself scrambling. Either type of ruling would unleash a wave of partisan litigation like the one we saw during the 1990s, after a 1993 Supreme Court decision called Shaw v. Reno condemned certain forms of racial gerrymandering. Whether you think that's good or bad obviously turns on where you stand and whose ox gets gored. While the smart money says it will be the Democrats', the only people sure to benefit are the election lawyers.

Click here to read a slide show on gerrymandering.

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Heather Gerken is a law professor at Yale University.