National districting expert explains recent SCOTUS gerrymander decision, next big case before the Court
Justin Levitt is a professor at Loyola Law School, Los Angeles, and recently served as a Deputy Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice
One of the biggest stories in U.S. politics today is gerrymandering, the practice of intentionally drawing political districts to create an advantage for a particular group.
In North Carolina, the Republican-controlled state Legislature has drawn the congressional districts to give House Republicans 10 seats and House Democrats just three seats — in a state with more registered Democrats than Republicans. In Wisconsin, Republicans won a third more seats in the 2012 State’s Assembly race, despite losing the popular vote, thanks in part to the districting lines.
Multiple cases are pending before the U.S. Supreme Court, and just last week, the Court stuck down North Carolina’s districting map for illegal racial gerrymandering, or drawing the district lines based on voters’ race.
But can districts be drawn based on voters’ political preferences?
It’s the next big question pending before the Court, and one that has drawn the concern of some high-profile individuals. Former Pres. Barack Obama is making gerrymandering a priority in his post-presidency career, according to former Attorney General Eric Holder.
Kheiro asked Justin Levitt, a law professor who recently tackled districting and other voting rights issues as Obama’s Deputy District Attorney for Civil Rights, to unpack some of the issues involved in this complex, evolving and vitally important area of the law.
Here he explains how districting works, breaks down the Supreme Court’s most recent decision, and gives a preview of the legal fight to come. The conversation has been lightly edited for length and clarity.
Kheiro Magazine: Justin, thank you for being with us today. Let’s start with the very basics: what are the different sources of law that govern the drawing of congressional districts?
Justin Levitt: Political districting is governed by state law, federal law and the Constitution — in that order. The vast majority of constraints come out of state law. Then federal law adds a few things, and constitutional law adds a few things. [Even though they are federal districts], federal law doesn’t drive the drawing of congressional districts the way state law does.
Who draws the lines for these congressional districts?
Most states have the Legislatures do it, but a few have independent commissions. Often the governor is involved and it’s like any other state law.
What are some generally settled principles that legislators have to follow when drawing congressional lines?
Every 10 years there is a census and we learn what the population is. The U.S. Supreme Court has said that each district has to have about the same number of people to comply with the Equal Protection clause of the U.S. Constitution. This is often called the “one person, one vote” principle, but really it’s an equal population requirement.
We also have the Voting Rights Act (VRA), which is a federal law that was passed to guarantee minority representation within a majority system. Beyond that, there aren’t really standard requirements across the board.
Most states have rules that say district map drawers should follow county lines or other political boundaries when they can. Districts have to be roughly compact, so they have to keep people who live closer together roughly within in the same district. They usually have to be contiguous; you can’t have territory in between districts. But in most states those are guidelines more than mandates.
What are some other rules that congressional district drawers have to follow that are perhaps less settled? For example, the rules pertaining to racial and political gerrymandering?
It’s easiest to start with the VRA and look at gerrymandering in that context.
In 1965, Congress passed a law that said in certain circumstances — particularly where there is a pretty bad racial history — if there is a group of racial or ethnic minorities that’s pretty big, and that has different political preferences from the rest of the population, you have to draw districts to give those minorities a fair shot to elect their representatives of choice.
Essentially what it means is that for big minority populations where the Anglo population around them votes differently, you often have to draw some districts that minority communities can control, where they can really be in the driver’s seat for elected candidates.
And this brings us to what North Carolina did and the Supreme Court’s recent decision in Cooper v. Harris.
[Ed. note: Levitt worked on an amicus brief in this case on behalf of the U.S. during his tenure as a Deputy Assistant Attorney General with the DOJ.]
North Carolina — in part for political purposes — pretended to comply with the Voting Rights Act. But when it said it was complying, what it actually did was take two districts that minorities already reliably controlled and pack them full of black voters. This has the consequence of diluting African Americans’ influence in the districts outside the two districts where they were packed.
This is racial gerrymandering, and in addition to the VRA, it’s prohibited by the 15th Amendment of the U.S. Constitution, right?
Correct. The Constitution says you can consider race in redistricting, but if race is the main reason — the “predominant” reason is the legal standard — for the lines you draw, you’ve got to have a really good reason for it. The only reason the Supreme Court has ever accepted is complying with the Voting Rights Act.
So North Carolina said that in the first district, District 1, we did it because the Voting Rights Act said we had to. For the other district, District 12, it said we did it for purely partisan reasons, not racial reasons.
Can you tell us a little bit more about the districts in question? District 12 in particular is infamous in election law jurisprudence. Why is that?
District 12 has gone back and forth through the Supreme Court five times. Each of those times it looked a little different, and it will be back for time number six, guaranteed.
Before this latest redistricting, for both districts, the percentage of the voting-age population that was African-American was in the high 40s. Their preferred candidates were winning with 50 to 70 percent of the vote. So they were already reliably in the driver’s seat for these districts, but North Carolina essentially shoved more African-American voters into those districts.
Because the black voters were already in control there, the additional voters didn’t noticeably help anything in Districts 1 and 12, but it meant less influence in surrounding districts. That made it easier for Republicans to win those. For District 12 the map drawer said, “Look, I didn’t really consider race at all. It was purely politics.”
Did the Supreme Court accept these justifications — that District 1 was packed to comply with the Voting Rights Act, and that District 12 was purely politics?
For District 1, the trial court had found that race was the predominant issue for drawing people into the districts, and that it wasn’t necessary to comply with the VRA because black voters were already able to elect the candidates of their choice. All the justices agreed on that. [Ed. note: Justice Neil Gorsuch didn’t hear the case.]
For District 12, there are two interesting things. First, the Court didn’t accept that the lines were just political and not racial. They basically said, “Even if your underlying aim was partisan gain, the tool you used to achieve it was moving people into and out of districts based on their race.” This is still drawing lines for racial reasons.
The other interesting thing is that it’s not clear whether drawing lines based purely on politics is legal. But it is a defense to a racial gerrymandering claim. It’s like defending against a first-degree murder charge by saying, “I didn’t mean to kill him, I just meant to rob him.” If you’re only on trial for murder, and not on trial for robbery, you might be acquitted of murder — even if the real reason was also illegal.
What evidence did the Court use to reach the conclusion that race was used to achieve political ends?
Technically what the Supreme Court said was: the trial court found that race was the predominant factor, and this finding was not a “clear error,” so the Supreme Court upheld the finding.
The majority of justices said we can see [that race was the predominant factor] in part because you — the map drawer — said so, and in part because you pulled black Democrats into the district but not white Democrats.
It turns out that in much of the country, at the moment, African Americans vote overwhelmingly in favor of the Democratic Party, but Anglo voters are split. In North Carolina, about 60% of white voters vote for the Republican Party, but that means that about 40% vote for Democrats.
If you look carefully at the sort of people who are being drawn into or out of a district, you can tell if the line drawer focused on all Democrats or just black Democrats. In a place where almost all the Anglo voters are Republicans it would be a lot harder to tell, but in North Carolina it wasn’t the case. The trial court looked at the way the lines were drawn and compared the precinct and census data. Precinct data measure politics, while census data measure race. So if you split a precinct along racial lines, chances are good you are looking at the racial data, because otherwise you would just draw the entire political precinct into the new map.
In your opinion, did any new rules come out of Cooper? Have any existing rules been clarified or evolved? Or was this merely a new application of existing established principles?
I thought it was an application of pretty established principles. That said, Legislatures in this cycle seemed to need a reminder.
The doctrine was always there. Fine, you went after Democrats, but you did so in a way that you went after black Democrats. You were still targeting people based on race. What matters for legal intent in all areas of the law is not the underlying motive; it’s my intent to do the thing that achieves that motive.
An analogy I like to use is that it’s fine for me to openly intend to get rich. There is nothing wrong with that motive. But it’s not fine for me to intentionally steal from someone in order to get there. This same distinction with respect to racial discrimination — even if you’ve got a valid underlying motive, you can’t usually use race in an unconstitutional way to achieve it — had already been in place for at least three decades.
This North Carolina case followed on a very similar case in Virginia, another very similar case in Alabama, one in Texas. A lot of other states seemed to have done similar things and used race unlawfully in order to achieve political ends. So I don’t actually think many of the legal principles are new, but again, Legislatures seemed to have needed a reminder.
You said earlier that it’s not clear that drawing congressional lines based purely on politics is legal. Why is that, and what’s on the horizon for partisan gerrymandering?
The last time the Court visited the issue, in 2004, nine judges agreed that too much partisanship in drawing the district lines was illegal. But in the case of political gerrymandering there’s yet another debate: even if it’s illegal, can anything be done about it?
In 2004, the Court couldn’t agree on how much partisanship was too much, or even whose job it was to say how much was too much. Some justices even thought that because they couldn’t agree on how much was too much, the court should just get out of the business of deciding. The deciding vote, Justice Anthony Kennedy, basically said: I’m not ready to say the court should be out of the business of deciding, but I haven’t yet heard a standard that I like.
So that case, Vieth v. Jubelirer, doesn’t stand for a whole lot. Just that certain partisan districting cases are justiciable [meaning the Court has the power to hear them] and Kennedy hasn’t made up his mind yet. Beyond that the court was really fractured.
Two cases are coming back to the Supreme Court now — another one out of North Carolina and one out of Wisconsin — so most observers think the Court will have to confront it at the very least. Wisconsin is the case that really pushes it. People are pretty sure that by this time next year we will have the latest thinking from the Court on whether it’s okay to use partisanship and how much. There are five new justices since 2004, so it’s a very different court.
Given how widespread partisan districting has become, if the justices do establish a standard for political gerrymandering, it could have big repercussions for a whole lot of states. Is there any way to predict, based on the practical effects, what standard if any the Court might adopt?
There are a few things that are absolutely certain every 10 years; to death and taxes, we can add redistricting litigation.
More than 220 lawsuits were filed against districting plans in this last congressional districting cycle — and there are only 50 states. If the Court is worried about redistricting litigation, that part already left the barn long ago. But if the Court is worried about a lot of successful redistricting litigation, there are a few standards they could choose.
The Court wants to allow some use [of partisan districting], but not a huge amount. The thing it will have to calibrate is the legal standard for how much is too much and the evidentiary standard [how much evidence the plaintiffs have to present] for proving it. I think that’s going to be where most of the attention is for the cases coming out. Can the court find a line it’s comfortable with? No doubt they will be thinking about practicalities, and about keeping causes of action [i.e. lawsuits] manageable.
For people reading tea leaves, the fact that Justice Kennedy signed on to Justice Alito’s dissent [instead of joining the majority] in Monday’s decision isn’t particularly promising for the partisan gerrymandering cases coming out.
They are looking at a couple of sentences — dicta — that were not what the case was about and not strong enough to really mean a whole lot. The three sentences basically said, “We recognize that some partisan gerrymandering is fine.” So who knows how that is affecting how he is approaching it.
So basically we just have to wait and see how the Court decides. In that case, let’s end with a personal question: what inspired you to get involved in this type of litigation? How did you decide to make districting such an important part of your career?
I wish there were a healthy origin story. There’s no magic moment where I woke up, struck by a thunderbolt, and thought infrastructure of elections was what I wanted to do. I drifted into it and then realized how compelling it was.
Elections are the infrastructure for the infrastructure. They resonate against all other policy questions; they drive everything else. It’s how we decide who we are and what we want to do as a people. If you want to see how much voting matters, talk to someone who hasn’t been able to. They’re outraged, incensed, wounded, hurt. It speaks to how they are valued in the community as a worthy human being.
I had the privilege of helping eligible voters be able to cast meaningful ballots. Watching the power of that firsthand made me a believer like nothing else could. It’s a very rewarding career to help people build the world they want to live in.
On that inspiring note, thank you very much for speaking with us today!
You’re very welcome.
Justin Levitt is a professor of constitutional law and the law of democracy at Loyola Law School, Los Angeles. A nationally recognized expert in districting and other voting rights issues, he recently returned to Loyola after serving as a Deputy Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice under former Pres. Barack Obama.
For more of Levitt’s insights into the partisan gerrymandering case currently pending before the Supreme Court, subscribe to Kheiro Magazine.
