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Gerrymandering Comes to the Supreme Court This December

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By Casey C. Sullivan, Esq. on November 14, 2016 2:57 PM

Gerrymandering in America is almost as old as U.S. democracy itself. In 1788, Patrick Henry drew congressional boundaries in Virginia in order to keep James Madison out of the first U.S. congress. (It didn't work.) But despite gerrymandering's long history, it's widely acknowledged as a threat to democracy, as a way to manipulate America's political processes for unearned advantage.

Now, the issue of gerrymandering will be back before the Supreme Court this December, as the Court hears oral arguments in two gerrymandering cases, Bethune-Hill v. Virginia State Board of Elections and McCrory v. Harris. The results could be significant.

Gerrymandering, Race, and the Voting Rights Act

The upcoming cases, scheduled for argument on December 5th, deal with 12 state legislative districts in Virginia and two congressional districts in North Carolina. Both touch on issues more significant than just the contours of a specific district. As Michael Parsons writes in Modern Democracy:

At stake is the constitutionality of the Voting Rights Act as applied to redistricting, the reconciliation of the Fourteenth and Fifteenth Amendments, the practical ability of legislators to comply with the law, the balance-of-powers problems raised by the "judicialization" of the redistricting process, the collateral consequences of racial gerrymandering decisions on other racial justice initiatives, and the potential for political gerrymandering claims to upturn partisan maps nationwide -- all issues that take on fresh urgency with the future direction of the Supreme Court becoming clear.

Both cases involve claims of racial gerrymandering, allegations that Virginia and North Carolina impermissibly relied on race when creating majority-minority districts.

They also highlight the tension between federal voting rights law and Supreme Court precedents. The Voting Rights Act requires states with a history of racial discrimination to ensure that minorities have the ability to elect representatives of their choice, which often requires the creation of majority-minority districts. But the Supreme Court has ruled that race cannot be the "predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district" unless it is "reasonably necessary" to comply with the Voting Rights Act.

In both Virginia and North Carolina, the state used racial demographic targets to draw its voting districts. In the Virginia case, that target wasn't found to trigger predominance. In the North Carolina case, it was, so long as that quota "is the single filter through which all line-drawing decisions are made."

The Supreme Court took up a similar case in last term's Wittman v. Personhuballah. There, the Virginia congressional districts in question were designed to be composed of 55 percent African American voters. The case, however, was dismissed on standing grounds. Perhaps these two cases will allow the Supreme Court to address the issue head on.

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