Gerrymandering symposium: The racial implications of yesterday’s partisan gerrymandering decision

Kristen Clarke is the president and executive director and Jon Greenbaum is the chief counsel of the Lawyers’ Committee for Civil Rights Under Law. The Lawyers’ Committee submitted an amicus brief in Rucho v. Common Cause and Lamone v. Benisek.

After decades of punting on the issue of partisan gerrymandering, a 5-4 majority of Supreme Court held yesterday in Rucho v. Common Cause and Lamone v. Benisek that partisan-gerrymandering claims under the First and 14th Amendments of the Constitution are not justiciable. This case will have significant implications on redistricting in numerous respects. Given our organization’s historic role in redistricting efforts, we are particularly concerned about how yesterday’s decision will affect race claims in redistricting cases.

To be clear, yesterday’s decision does not affect the existing jurisprudence on the consideration of race in redistricting that has been developed in redistricting cases alleging intentional discrimination, racial gerrymandering and violations of Section 2 of the Voting Rights Act. Indeed, the majority opinion differentiates partisan gerrymandering from racial discrimination in voting. The opinion cites to two types of examples of racial discrimination in voting and distinguishes each from partisan gerrymandering. The first is Gomillion v. Lightfoot, in which the Supreme Court held that the intentional exclusion of black residents from the city of Tuskegee’s boundaries violated the Constitution. The second are the “Shaw” cases, in which the court has held that when racial considerations predominate over traditional districting principles (such as not splitting voting precincts) in a redistricting plan without a compelling reason, it violates the 14th Amendment.

Nonetheless, this decision will have a negative effect for civil-rights lawyers and advocates who seek to ensure fair maps. In many instances, it will enable map-drawers who have racial motivations or a combination of racial motivations and partisan motivations to claim that they made decisions only for partisan reasons and not for racial ones. The reality is that in many areas of the country, partisanship and race are closely intertwined. This is particularly true in the South, where in numerous places many African-Americans vote Democratic and a substantial majority of whites vote Republican. Sophisticated map-drawers not only know this but also can perform sophisticated statistical analyses whereby they can predict election outcomes based on the racial demographics of the district. Thus, race can be used as a means for achieving a partisan outcome. Though this is intentionally discriminatory behavior, courts may be loath to find racial discrimination when legislators disclaim any racial motivation and instead testify that their only motivations are partisan.

This concern proved to be warranted in a recent case litigated by the Lawyers’ Committee for Civil Rights Under Law, Georgia State Conference of the NAACP v. Georgia. In this case, the General Assembly, which happened to be Republican-led, conducted a mid-decade redistricting for its State House of Representatives that in part was designed to protect the seats of two white incumbents in Districts 105 and 111 who barely survived in 2014 and whose districts are located in areas of suburban Atlanta where white population is decreasing and minority population is increasing. The plan-drawers modified the districts slightly to reduce the black population and slightly increase the white population so that these incumbents could be re-elected without putting other white Republican incumbents at risk. The strategy worked in 2016, as both incumbents won by razor-thin margins against black candidates.

The Lawyers’ Committee and its partners brought suit in 2017. We claimed, among other things, that the mid-decade redistricting was both a racial gerrymander and a partisan gerrymander. The three-judge district court dismissed our partisan-gerrymander claim early in the case because it found that we did not allege a judicially manageable method for measuring the discriminatory effect of partisan gerrymandering. The dismissal of the partisan-gerrymandering claim enabled state witnesses to claim that their motivations were partisan and not racial.

When we moved for a preliminary injunction, the majority opinion of the three-judge court found that “[t]he plaintiffs’ evidence that race predominated this redistricting process is compelling.” This compelling evidence included documentation that the reason for redistricting Districts 105 and 111 was because of changing demographics, proof that racial data needed to be employed in deciding where to split precincts because the state had racial data but not partisan data at the sub-precinct level, and the “extreme racial polarization” of voting in the two districts. The court also found that the results in 2016 would have been different but for the redistricting.  So we had intent, effect and causation.

Nonetheless, the district court ruled against us because the state witnesses all claimed they were motivated by partisanship and not race. The court found that racial gerrymandering claims are hard to prove when the defendants claim a partisan motivation: “[Proving racial gerrymandering] is particularly hard to do when the State offers a defense rooted in partisan gerrymandering, as it did here. We did not move these voters because they are black, the State tells us. We moved them because they were Democrats. And under current Supreme Court precedent, the State tells us this motive is perfectly acceptable.” Conversely, the court stated that “[t]his would be a more obvious case if it were a challenge to partisan gerrymandering.”

In the end, the court upheld a plan that left it with a bad taste in its mouth: “[F]air and effective representation is decidedly not what the voters removed from House Districts 105 and 111 got. Even so, our application of Supreme Court precedent to the record before us leaves us to conclude that plaintiffs are not entitled to the preliminary injunction they seek.” The continued demographic changes in Districts 105 and 111 resulted in two African-American Democrats winning in 2018 and led us to drop our case. So our clients achieved a more fair and just outcome in the end, but only because the demographics continued to change, offsetting the impacts of the state’s mid-decade redistricting scheme.

In the upcoming redistricting cycle, many African-American, Latino and other minority voters may not be so fortunate. The Supreme Court’s Rucho decision may lead legislators to believe that they can get away with racial gerrymandering in places where race and party are highly correlated, by defending these claims on the basis that their decisions were made for partisan, not racial, reasons. Although the Rucho decision did not give an express imprimatur to such connivance, history has shown that those intent on discrimination will use any means available to achieve their goals. Particularly in states where redistricting commissions and statutory or judicial solutions to partisan gerrymandering are not realistic, voters will be challenged to find recourse.

Of course, the Lawyers’ Committee for Civil Rights Under Law and fellow advocates for voting rights will continue to fight for racially fair redistricting plans during the process and challenge discriminatory plans where we are able. But the Supreme Court’s decision yesterday has made our job substantially tougher. Empowering communities to engage in redistricting at the ground level will be critical to help ensure some modest level of checks and balances in the upcoming decennial redistricting cycle.