Gerrymandering Gets a Green Light

Key Takeaways:

• The Supreme Court has reinstated a Texas gerrymander that is expected to give Republicans five additional seats in the US House.
• The Court’s decision imposes heavy burdens on gerrymandering plaintiffs, making it difficult for them to succeed in future cases.
• The decision is a victory for the Republican Party and is likely to have brutal implications for all future federal lawsuits challenging gerrymandered maps.
• The Court’s order faults the lower court for not applying a strong presumption against plaintiffs challenging a racial gerrymander.
• The decision may make it nearly impossible to challenge maps that target Black voters, as nearly any map that seeks to diminish Black representation will closely resemble a map drawn for partisan purposes.

Introduction to the Supreme Court’s Decision
The Supreme Court’s recent decision in Abbott v. League of United Latin American Citizens (LULAC) has significant implications for the future of gerrymandering in the United States. The Court reinstated a Texas gerrymander that is expected to give Republicans five additional seats in the US House, after a lower federal court struck it down. The decision is a victory for the Republican Party and is likely to have brutal implications for all future federal lawsuits challenging gerrymandered maps. The Court’s order in LULAC imposes heavy burdens on gerrymandering plaintiffs, making it difficult for them to succeed in future cases.

Understanding the Types of Gerrymanders
To understand the LULAC decision, it’s helpful to understand the distinction between two different types of gerrymanders: partisan and racial gerrymanders. Partisan gerrymanders are maps drawn to favor whichever party controls the legislature, while racial gerrymanders are maps drawn to change the racial makeup of various legislative districts, often to give an advantage to white voters. The line between racial and partisan gerrymanders is often thin, as Black Americans tend to vote overwhelmingly for Democrats. A map that seeks to maximize Republican power will often closely resemble a map that seeks to minimize Black representation.

The Court’s Previous Rulings on Gerrymanders
Prior to LULAC, the Supreme Court had already made it difficult to challenge gerrymandered maps. In Rucho v. Common Cause (2019), the Court’s Republican majority held that federal courts may not hear challenges to partisan gerrymanders. The Court has also taken steps to undercut plaintiffs challenging racial gerrymanders, and it is expected to eliminate the Voting Rights Act’s safeguards against these gerrymanders later in its current term. However, prior to LULAC, there was still one set of circumstances when a plaintiff challenging a racial gerrymander could prevail. If a legislature gave race a predominant role in redistricting decisions, the resulting map would be subject to the most skeptical level of constitutional scrutiny.

The LULAC Decision
The LULAC decision faults the lower court for not applying a strong presumption against plaintiffs challenging a racial gerrymander. The Court’s order states that the lower court failed to honor the presumption of legislative good faith by construing ambiguous direct and circumstantial evidence against the legislature. This conclusion is problematic, as it imposes a heavy burden on plaintiffs to prove that a state drew its lines for racial reasons. The Court’s Republican majority has previously said that state legislatures enjoy a presumption of racial innocence when they draw legislative districts. However, in LULAC, there was considerable evidence supporting both the plaintiffs’ claim that Texas drew its lines for racial reasons and Texas’s claim that it drew them for partisan reasons.

Implications of the LULAC Decision
The LULAC decision is likely to have significant implications for the future of gerrymandering in the United States. The Court’s strong presumption against anti-gerrymandering plaintiffs will make it nearly impossible to challenge maps that target Black voters. Because nearly any map that seeks to diminish Black representation will closely resemble a map drawn for partisan purposes, there will almost always be some evidence that an anti-Black racial gerrymander was drawn solely to achieve partisan ends. The decision may also make it difficult for civil rights plaintiffs to challenge racial gerrymanders, as they will be required to produce a viable alternative map that meets the state’s avowedly partisan goals.

The Future of Gerrymandering
The LULAC decision is an incremental step towards full lawsuit immunity for states that draw gerrymandered maps. The Court has already made it difficult to challenge a gerrymander of any kind, and LULAC merely adds new burdens to already beleaguered plaintiffs. The cumulative effect of these burdens is likely to prove overwhelming for nearly all litigants who oppose racial or partisan gerrymanders. The Court’s Republican majority appears to be washing its hands of responsibility for gerrymandering altogether, signaling to states that they can do whatever they want. This decision is a significant setback for voting rights and will likely have far-reaching consequences for the democratic process in the United States.