What has the Supreme Court said about gerrymandering?

0:05It's probably easiest to start from the premise that not all gerrymandering is bad. I think people assume that and in order to understand the harm that these doctors are really trying to get at, I think you have to start from that premise. Because some gerrymandering, even partisan gerrymandering happens just because of by virtue of where people live. There's no world in which we live in where they'll never be gerrymandering. But it does force us to think about the instances in which we might want to prohibit the practice, both racial gerrymandering and partisan gerrymandering. Racial gerrymandering, this idea of trying to diminish the power of racial minorities by how you draw district lines, or alternatively by not drawing district lines at all. There's a practice called, having an at large election where you use just the sheer numerical white majority as a way of drowning out a sizable minority population who can

0:56never elect anybody because all of the elections are at large. Everybody votes, and then whoever emerges with the most votes wins. But because the white population might be 60%, they can elect all of the representatives. There are practices that constitutionally are problematic because it's a form of racial gerrymandering that we should care about. The doctrine of Shaw v. Reno though, which is also about racial gerrymandering is a bit different, though.

1:20We've talked about racial gerrymandering to the extent that people of color have been gerrymandered in ways that prevent them from exercising their political power in a meaningful way. But the doctrine of Shaw v. Reno raises the question of, are there limits on the state's ability to draw districts to protect minority voters in a way that could potentially tread on the rights of white majority voters? That's what the doctrine of Shaw v. Reno tries to capture. In Shaw v. Reno, the State of North Carolina, according to the Supreme Court, drew a majority minority district, it wasn't necessarily obligated to draw, and because of that, the Supreme Court found that they relied on race in a way that offends the Constitution. The equal protection clause, at least as the Supreme Court has interpreted it, prohibits states from over relying on racial criteria in drawing district lines.

2:09Shaw v. Reno tries to capture that and tries to limit the ability of state legislatures to excessively draw majority minority districts where they may not be necessary or needed according to the court. It's a racial gerrymandering principle, but it's a very different type of racial gerrymandering because it's not in service of trying to help people of color, and in fact, it's a way of trying to constrain the ability of states to help people of color in certain instances. Partisan gerrymandering is hard because it can overlap with racial gerrymandering. When you have voting patterns that, and particular among the black community who is overwhelmingly democratic, is sometimes it becomes very difficult to disentangle whether or not a state is taking actions because of the group's race or because they are democratic voters and so this actually matters for purposes of case law.

2:56Because the Supreme Court in a case called Rucho determined that it's not going to police partisan gerrymandering claims, and so essentially, when it comes to the involvement of federal courts, they will not stop states from gerrymandering, a state legislative or congressional districts. Now, that doesn't mean that there's no constraint. Some states have independent commissions that have been adopted by the people in the state through the initiative process.

3:20There are also state constitutions that prohibit the practice of partisan gerrymandering. It's not that there's no recourse here, but in terms of a uniform federal solution to partisan gerrymandering, we don't have that. Of course, the issue is that where voting patterns correlate based on race and partisanship, it's very easy for states to rely on partisanship now as a justification for practices that harm racial minority groups.