WASHINGTON, DC — The Supreme Court heard two redistricting cases on Tuesday. Prior to this morning, the first, Harris v. Arizona Independent Redistricting Commission, appeared unlikely to prove explosive, while the second, Evenwel v. Abbott, held the potential for fireworks — but only if the justices were willing to accept an especially audacious argument which seems to cut against the explicit language of the Constitution.
After two hours of argument, however, there is little reason to think that the Roberts Court will take a modest approach to redistricting. To the contrary, Evenwel now seems likely to upset the racial balance of many states’ congressional delegations and throw many states’ redistricting processes into chaos. Harris, meanwhile, could be a sleeper case. Though the plaintiffs in that case still appear unlikely to receive five votes for their position, at least some members of the Court appeared open to a surprising shift in the Court’s gerrymandering jurisprudence.
The Gerrymandering Surprise
Harris involves state legislative maps drawn by Arizona’s Independent Redistricting Commission, a voter-approved commission intended to limit partisanship in the map-drawing process. These maps were drawn before the Court’s 2013 decision tossing out much of the Voting Rights Act, and they contain small deviations in population (less than 10 percent at their peak) across districts. A federal district court determined that compliance with the (pre-2013) Voting Rights Act was “the predominant reason for the deviations,” although there is evidence that some of the commissioners were motivated in part by partisanship when they drew at least one district. As Justice Stephen Breyer noted, however, the hints of partisanship appear to have come from Democratic commissioners, whose views were balanced out by an equal number of Republican commissioners.
Prior to this case, the Court’s precedents have held that population deviations across districts that exceed 10 percent should be viewed with considerable skepticism, but plaintiffs seeking to challenge smaller deviations bear a much higher burden.
Though one issue in the case is whether Arizona’s maps remain permissible if they were drawn to comply with a federal law that the Court has since neutered, it soon became clear that much of the Court was troubled by the question of how much it matters that a wisp of partisanship may have motivated a minority of the commissioners to support slight population deviations in some of the districts. Justice Antonin Scalia opens his questioning of Paul Smith, a giant of the Supreme Court bar who frequently argues redistricting cases, by asking about possible partisan motivations. Justice Samuel Alito quickly jumps in, noting that “partisanship may have played some role” in the construction of these maps. Justice Anthony Kennedy’s questions are particularly pointed. Can it be permissible, he asks, for map drawers to use “an illegal standard” as even a small part of their criteria — a question which seems to presume that partisanship considerations are illegal in redistricting.
Smith, meanwhile, seems to spend much of the argument in a state of incredulity — at one point, he cites a case from just a few months ago which suggests that partisanship is allowed in the redistricting process. And Smith has good reason to be incredulous. Among other things, Smith argued what are probably the two most important partisan gerrymandering cases of the last decade-and-a-half, and the conservative end of the bench seemed much less bothered by partisan redistricting in those cases than they did in Harris. Indeed, in 2004’s Vieth v. Jubelirer, Scalia concluded that federal courts weren’t even allowed to hear a constitutional challenge to a partisan gerrymander in Pennsylvania. Though Kennedy did not go quite that far, his separate opinion still left plaintiffs seeking to challenge such gerrymanders with few, if any, options.
The plaintiffs in Vieth, it should be noted, raised far more serious allegations of partisanship than the plaintiffs in Harris mustered. Vieth involved a claim that “the new districting plan was created ‘solely’ to effectuate the interests of Republicans, and that the General Assembly relied ‘exclusively’ on a principle of ‘maximum partisan advantage’ when drawing the plan,” according to Justice John Paul Stevens. Harris, at worst, involves the possibility that some members of a multi-member commission may have be motivated in part by partisanship and that this partial motivation might have led to a slight deviation in how some districts were drawn. It’s difficult to understand why, as a legal matter, Harris should concern members of the Court’s conservative bloc more than Vieth.
It is, however, worth noting that Vieth involved an alleged gerrymander that benefited Republicans. Harris, by contrast, involves a alleged attempt to benefit Democrats.
Justice Elena Kagan worries near the end of oral argument that calling Harris an impermissible gerrymander would create a hair trigger that could lead to “every single” new redistricting map being challenged in court. It is still likely that a majority of the Court will agree with her. It is also likely that Vieth and similar cases will prove too much of an obstacle to justices who wish to declare Harris an illegal partisan gerrymander. Nevertheless, Scalia, Kennedy & Alito’s apparent willingness to probe into the commission’s motivations here suggests that this could be the sleeper case of the term.
A Whiter Congress
Evenwel, meanwhile, presents something quite distinct from gerrymandering. At the federal level, gerrymanders occur after each state has been apportioned a certain number of seats in the House of Representatives, and then state lawmakers carve up the state into districts that benefit one party over the other. Evenwel, by contrast, is fundamentally an attempt to rig the apportionment process itself.
Under the Fourteenth Amendment, states are allocated House seats by “counting the whole number of persons in each state.” Thus, children, non-citizens, disenfranchised former offenders and similar individuals still count in determining how many representatives each state has in Congress. The state of Texas then carves their state up into district using the same method — that is, each district must have roughly the same number of total residents, even if that leads to a discrepancy in how many actual voters live in each state.
At first, it’s unclear why this practice is even controversial. William Consovoy, the attorney arguing that states must draw districts with roughly equal voter population (as opposed to total population), seems to concede early in his presentation that “there is no question that” the justices believed in their landmark redistricting case Reynolds v. Simms that Texas’s practice is “permissible.” Nevertheless, the Court’s conservatives seemed very bothered by this arrangement. Notably, not one of the Court’s Republican appointees asked a single question of Consovoy. That’s normally a sign that they are on the lawyer’s side.
Evenwel is the godchild of Edward Blum, a conservative activist who has also spearheaded challenges to affirmative action and the Voting Rights Act. Like other cases shepherded by Blum, Evenwel also has a racial angle. Texas, in particular, has large number of non-citizen Latino residents. If Consovoy and Blum’s case prevails, these residents will no longer be counted when the state draws legislative districts. They will, however, still be counted when congressional seats are allocated to Texas. The result will be an effective shift in power from Latino voters to white voters.
Yet, while this outcome seemed to appeal to the Court’s conservative members, they may not have fully considered just how disruptive such a change could be. Justice Kennedy at one point asks whether states could square the circle by drawing districts that have both equal total population and equal voter population, a task that may prove mathematically impossible in some states, and that is likely to produce extraordinarily misshapen districts in others. Justice Stephen Breyer, meanwhile, raises another serious problem — children. If non-voters can no longer be counted when drawing legislative districts, then states will need to identify which residents are over the age of 18 and only count those residents during redistricting. As Principal Deputy Solicitor General Ian Gershengorn notes, this would render maps illegal in states where residents of certain areas are more likely to have more children than residents of other areas (a divide that sometimes falls along rural/urban lines).
If any of these practical concerns bothered the Court’s conservative majority, however, none of them raised such a concern with Consovoy. That’s not good news for Latinos in Texas, and it could be equally bad news for anyone faced with the daunting task of drawing legislative maps after Evenwel.