Academic journal article Harvard Law Review

I. Constitutional Law: D. Equal Protection

Academic journal article Harvard Law Review

I. Constitutional Law: D. Equal Protection

Article excerpt

Redistricting--Partisan Gerrymandering.--Breakdowns in the democratic process initially appear to present especially appropriate opportunities for judicial intervention. Because groups that are excluded from elections cannot ordinarily remedy their disfranchisement through the political process, courts seem to offer a crucial check on malapportioned political power. However, despite having stepped into the "political thicket" (1) in 1962, (2) the Supreme Court has hesitated to appear as though it is imposing its own view of a properly functioning democracy unless it is particularly confident in its judgment. Last Term, in the latest manifestation of this self-doubt, League of United Latin American Citizens (LULAC) v. Perry, (3) the Court held that an electoral district in Texas impermissibly disadvantaged Latinos under section 2 of the Voting Rights Act of 1965 (4) but rejected a broader claim that the underlying statewide redistricting scheme was an unconstitutional partisan gerrymander. The Court's decision creates new tensions in its application of the Voting Rights Act. However, LULAC is most noteworthy as an example of the Court's continued inability to address partisan gerrymandering claims coherently. This inability discourages both judicial and nonjudicial solutions to political gerrymandering and leads to a misplaced emphasis on the divisive issue of race in politics. The Court should make up its mind: it should either categorically foreclose claims of partisan gerrymandering or adopt a standard that will consistently address the issue.

In 2003, the Republican-dominated Texas legislature drew a new set of congressional districts entitled Plan 1374C to increase Texas Republicans' representation in Congress. (5) As part of the plan, a majority-Latino district in southwestern Texas, District 23, was redrawn to include more Republican Anglo voters and exclude Democratic Latino voters. (6) Although the plan reduced the number of Latinos in District 23, it placed additional Latino voters in the nearby District 25, which contained another community of Latino voters. (7) Several constituencies filed suit, claiming that the plan was impermissible for four reasons: it was implemented in the middle of a decade rather than immediately following a national census, it was motivated by discrimination against racial minorities, it was an unconstitutional partisan gerrymander, and it violated section 2 of the Voting Rights Act by diluting the voting power of minorities in multiple districts, including District 23. (8)

A three-judge panel of the district court rejected each of these claims. It held, first, that neither the Constitution's Elections Clause (9) nor the Voting Rights Act prevented mid-decade redistricting; second, that the plaintiffs had failed to prove that the redistricting plan was motivated by a specific intent to harm minorities; third, that the court lacked a sufficiently manageable standard to strike down the plan as a partisan gerrymander; and fourth, that any cognizable dilution of minority voting strength was cured by the creation of District 25 as an offsetting Latino opportunity district. (10) After five Justices opined in Vieth v. Jubelirer (11) that partisan gerrymandering claims are in theory justiciable even if not presently susceptible to a judicially manageable standard, the Court vacated the district court's decision and remanded for reconsideration in light of Vieth. (12) Treating the remand as limited to the allegations of partisan gerrymandering, the district court again rejected the plaintiffs' claims. (13)

In a set of fractured opinions, the Supreme Court affirmed the district court's rejection of the statewide partisan gerrymandering claims but reversed and remanded on the claim that District 23 violated the Voting Rights Act. (14) Writing for the Court, Justice Kennedy affirmed the principle announced in Vieth and Davis v. Bandemer (15) that "an equal protection challenge to a political gerrymander presents a justiciable case or controversy. …

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