Help Wanted: The Constitutional Case against Gerrymandering to Protect Congressional Incumbents

This article argues that the Supreme Court has been incorrect in treating incumbent protection gerrymanders as a traditional and acceptable redistricting principle. Part I of the article sets out 3 separate lines of attack on excessive incumbent protection gerrymanders. Part II makes the case for judicial regulation of such gerrymanders and proposes a standard that would create a presumption of unconstitutionality that could be rebutted. A process oriented remedy is proposed and potential obstacles to a suit are also addressed

Democracy, Majoritarianism, and Racial Equality: A Response to Professor Karlan

Only with great trepidation do I undertake to comment upon Professor Karlan\u27s fine Article.1 Much of what I know about voting rights law I have learned from her work, and her contribution to this Symposium is characteristically erudite, detailed, and cogent. I will therefore limit myself to offering four modest observations about her argument. My central point is simple: While Professor Karlan successfully identifies several empirical questions that critics of majority- black voting districts must answer, those same questions also raise problems for defenders of majority-black districts (including Professor Karlan herself). Professor Karlan\u27s argument is directed against what I shall call the Assembly Backlash Hypothesis : the idea that districting plans that increase the number of black legislators may nevertheless produce legislative assemblies less receptive to black interests. The Hypothesis maintains that by packing minority voters into a few districts, racial gerrymanders increase the likelihood that the state\u27s remaining districts will elect representatives hostile to minority interests. If the Assembly Backlash Hypothesis were true, it would provide a reason for proponents of minority rights to oppose the creation of majority-black districts. Such districts might do nothing more than produce token representatives who would be doomed to lose again and again in unsympathetic assemblies. Professor Karlan demonstrates that the Assembly Backlash Hypothesis holds only when multiple conditions are met. Some of these conditions describe the nature of black political interests: Black political interests must differ from white political interests (otherwise there would be no need to worry that black representatives would become persistent losers in unsympathetic legislatures), but they must not differ too radically (otherwise black voters could never form coalitions with white voters). Other conditions apply to white political behavior: If whites resent black political power, then white voters may realign to oppose black interests whenever black voters acquire sufficient clout to influence an election. Professor Karlan concludes that the truth of the Assembly Backlash Hypothesis depends on the ability of black voters to reinforce the power of the Democratic political party. [V]irtual, party-based representation is the key to any realistic account of how [the Assembly Backlash Hypothesis] works, says Professor Karlan

When the Math Matters: Improving Statistical Advocacy in Gerrymandering Litigation

Lawyers regularly joke about their supposed inability to address mathematical issues. However, mathematical concepts are sometimes at the core of a legal dispute, and lawyers do a disservice to their clients if they are not able to engage in effective advocacy in these contexts. This Article discusses Gill v. Whitford, a gerrymandering dispute involving an important mathematical idea— the core statistical concept of regression analysis, particularly multivariable regression analysis—which Chief Justice Roberts referred to in Whitford as “sociological gobbledygook.” In fact, the mathematical analysis has crucial implications and connections to the legal issues. This Article explains the statistics behind that analysis, connects them to the issues before the Court, and demonstrates that these concepts are employed in many types of litigation. The Article concludes that, even facing a skeptical court, lawyers who can understand and explain mathematical concepts in a way that resonates fully with the legal issues are best positioned to advocate for their clients. With new census results released in late 2021 and the opportunities for redistricting that will subsequently arise, mathematical understanding in the context of gerrymandering litigation is more critical than ever

Shaw vs. Reno and the World of Redistricting and Representation

Justice O ' Connor's majority opinion in the 1993U.S. Supreme Court case of Shaw v. Reno has widely been seen as withdrawing judicial protection of minority voting rights -- a welcome development to those who believe as a matter of faith that discriminatory electoral rules, racist appeals in elections, and racially polarized voting are things of the distant past, but less hopeful to close students of redistricting and election campaigns of the last two decades. Deeply ambiguous, the opinion has spawned a wide range of interpretations, from assertions that it bans redistricters from taking the race of voters into account at all, even when they place them in majority-white districts, to contentions that it merely asks for further information about the basis for establishing certain "ugly" districts that have majorities of African Americans or Latinos. In this paper, which is based on research that I carried out for Shaw v. Hunt, the remand version of Shaw v. Reno, and Vera v. Richards, its Texas counterpart, I try to restore a sense of reality to the often factually incorrect assertions or implications of Justice O'Connor's opinion, not only by a close textual reading of the briefs and opinions in the Supreme Court case, but also by looking in considerable detail at the actual redistricting processes in North Carolina and Texas during the 1970s, 80s, and 90s. Were race, partisanship, and individual politicians' interests taken into account in redrawing districts before 1991, or were all previous reapportionments pristine exercises in civic virtue? Might the states in the 1990s have had compelling interests in redressing past racially discriminatory practices? Were the motives of the 1991-92redistrictings so uncomplicated that they can be easily and unambiguously determined by a quick glance at a map? For North Carolina, I also examine whether white and black public opinion and the voting records of white and black members of Congress differ systematically from each other. Do black voters need black faces to represent them? Shaw's vagueness affords the Supreme Court the possibility of gracefully backing away from its separate but unequal standards, standards that allow whites standing to sue without having to prove that the electoral rules at issue have a racially discriminatory effect and without having to show in detail that they were adopted with a racially discriminatory intent. In the final section, I outline five escape routes from Shaw, all of which are based on its factual inadequacies