One of Charles Dickens’s lesser known novels is “Bleak House,” dealing with a legal case over an estate that lasted so long and was so expensive that the expenses of the case exceeded the value of the estate.  The same is unfortunately true of disputes over the redistricting process.   We are now almost six years into the current ten-year cycle of district lines.  The run-up to the next cycle begins with elections in several states this year and next that will pick some of the governors and legislators that will be in office in 2021 when the redistricting process begins again.  You would think that, by this point of the cycle with three congressional elections and two or three state legislative elections (depending on the state) under the new lines, all court cases about those lines would be over.  Unfortunately, we are not at that point yet.

This week, the Supreme Court decided the most recent redistricting case (and it has another one under submission).  This week’s decision involved the Virginia House and whether the  drawing of its lines represented a “racial gerrymander” that violates the Equal Protection Clause of the Fourteenth Amendment.  The key issues in a racial gerrymander case is whether race is the predominate reason for the drawing of the lines of a particular district and (if race is the predominate reason) whether there is a sufficiently compelling reason for the reliance on race.  Such a challenge focuses on particular district lines.

In this case, the challenges concerned twelve districts.  The original three judge panel found that race was only the predominate reason for one of the twelve districts.  In part, this decision relied on the fact that the other eleven districts did not have unusual shapes and the lines could be justified by “traditional” redistrict considerations.  While the panel found that race was the predominate explanation for the twelfth district, the panel found that the need to bump up minority votes in that district to survive pre-clearance (as the Virginia lines were drawn before the Supreme Court abolished the pre-clearance requirement of the Voting Rights Act) was a sufficiently compelling reason.

The Supreme Court rejected the panel’s decision that race was not the predominate reason for the first eleven districts.  While an unusual shape can be circumstantial evidence of a racial gerrymander (i.e. the unusual shape suggests that something other than proper factors are being considered in the drawing of the lines), a racial gerrymander can also be shown by direct evidence (i.e. those involved in drawing the lines acknowledge that race was a significant factor).  Here there were such admissions.  Thus, even though the lines could have been based on valid considerations, the panel needs to consider what the true reasons for the lines were and if race was the main factor behind the drawing of those lines.  The Supreme Court did accept the panel’s conclusion that — for the twelfth district — complying with the Voting Rights Act was a valid reason for putting a significant emphasis on race in adjusting the final lines.  The Supreme Court did give a degree of deference to the legislature on this issue — holding that the test was whether the legislature reasonably believed that the changes were necessary, not whether they were actually necessary.

Going forward — for this case, for any case from this cycle that is still pending, and for next cycle — if the legislature looks at racial composition of the district in adjusting district lines, the districts are challengeable.  If the legislature reasonably believes that such adjustments are necessary to comply with the Voting Rights Act (primarily Section 2 barring vote dilution in light of current case law) the districts will probably survive the challenge.  In these and other cases that are currently pending on equal protection claims, there is a big question about the validity of partisan gerrymanders.  In other words, while it is improper to discriminate based on race, can the legislature discriminate based on party-identification?

Given how bad this past cycle was for Democrats, these cases are a reminder of two things.  First, we need to work hard in state elections for the next four years.  As noted above, some of the folks elected this year in New Jersey and Virginia and next year in about forty-six states will be in office in 2021 when the process starts all over again.   Now is the time to find candidates who can win seats currently under Republican control and keep open Democratic seats.  After we find these candidates, we need to work to get them elected.  (In Virginia, the Republicans have a 21-19 advantage in the State Senate and a 66-34 advantage in the State House.  In New Jersey, the Democrats have a 24-16 advantage in the State Senate and a 52-28 State House.)

Second, we have to consider changes to the redistricting process, using the right of the public to propose statutory and constitutional changes in those states that permit that.  While citizen redistricting commissions can be an improvement on the legislature getting to draw the lines (avoiding self-protection), the rules for picking those commissions matter.  (In my state, the governor picks from lists proposed by both parties with each party getting half of the seats — a formula for deadlock that results in the courts drawing the seats.)

The bigger need for change is in establishing the priorities to be used in drawing lines.  My personal belief is that progressive need to stand for an end to partisan gerrymanders and incumbent protection.  On partisan gerrymanders, my belief that any redistricting plans needs to be “party neutral.”  By party neutral, I mean a plan that meets several criteria.  First, the partisan breakdown of the median district should be the same as the partisan breakdown of the state.  For example, if (over the past three election cycles) the Republicans got 52.0% of the two-party vote for statewide candidates, then the median district should have a two-party vote for statewide candidates of approximately 52.0% for the Republicans over the same period.  If there are an even-number of districts, the two median districts should average to that same number.  There should be a maximum permissible deviation in the partisan breakdown in the median district(s) (maybe 0.1% or 0.2%).  Second, within each band from that median district, there should be a roughly even number of Democratic and Republican district.  For example, if you use 3% bands, there should be the same number of districts in which the Democrats do 0-3% better than the statewide two-party average as districts in which the Republicans do 0-3% better than the statewide two-party average (give or take one or two districts).  In short, whomever gets the most votes statewide should win the most seats, and there should be no partisan cramming and packing.

As a second level priority (after assuring partisan neutrality), district lines should comply with precinct/voting district lines.  While one-man, one-vote requires districts to be of roughly equal populations, the permissible deviation from strict equality is large enough that — in most states — there is no need to split a precinct.   Splitting precincts leads to bizarre shapes and makes it difficult for voters to figure out in which district they live.

It is only at the third tier that the redistricting authority should consider communities of interests (racial, socioeconomic, political subdivisions, etc.).  On racial and socioeconomic groupings, it is important to limit too much packing.  Putting aside unusual features (e.g. prisons, colleges) that allocate a large number of non-voters to a district, it typically only takes 55-60% of the voting age population for a unified demographic group to get their preferred candidate.  Anything larger is an attempt to dilute the voting power of that group by packing them into a small number of districts.

At the final tier, compactness is significant.  If there are two plans that get similar results in terms of political neutrality and giving communities their proper voice in Congress and state legislatures, keeping districts as small as possible and regularly shaped is preferable.  But compactness is less of a concern if it means that — in a 50-50 state — one party represents districts in which it typically get 70% of the vote while the other party represents districts in which it typically get 56% of the vote.

As noted above, incumbent protection should play no role in the process.  The redistricting authority should be barred from looking at the current residences of any sitting U.S. representative or state legislator.  If the best lines put two incumbents in the same district or move an incumbent into a district that is less safe, that’s just the way that the process should work.  Voters have the right to choose whom they want to represent them (and incumbents are free to move to more favorable districts).  Incumbents do not have the right to choose their voters in a way that deprives voters of control of their government.

The next four years will not be easy, but — if we wait until the 2020 census results are released in the Spring of 2021 — the result will be more states like Colorado, Florida, Michigan, North Carolina, Ohio, Pennsylvania, Virginia, and Wisconsin where, even when we win the statewide vote, we still are unable to win the majority of U.S. House seats.