Justice Denied: Equity, Elections, and Remedial Redistricting Rules

By Parsons, G. Michael | The Journal of Law in Society, Spring 2019 | Go to article overview

Justice Denied: Equity, Elections, and Remedial Redistricting Rules


Parsons, G. Michael, The Journal of Law in Society


INTRODUCTION

The late Congressman John Dingell once said, "[i]f I let you write the substance and you let me write the procedure, I'll screw you every time." (1) Over the past half century, the substance of constitutional redistricting protections has grown in profound ways, from the creation of the one-person one-vote doctrine (2) and racial vote-dilution claims (3) to the development of racial sorting claims. (4) Yet, as the Supreme Court has expanded these substantive rights with one hand, it has constrained lower courts' remedial flexibility with the other--giving more and more procedural power back to state legislatures. The result for voters is, well, as Congressman Dingell predicted.

Following the 1990 census, for example, plaintiffs in North Carolina that challenged the State's new congressional districts only succeeded after six years of litigation--meaning that unconstitutional districts remained in place in the 1992, 1994, and 1996 elections. (5) The same occurred after the 2010 census, with North Carolina voters deprived of constitutional districting plans at the federal and state level for multiple election cycles. (6)

Such receding remedies are not just another example of "justice delayed." (7) Each election that occurs under unconstitutional conditions constitutes a separate harm, forever un-vindicated. (8) "And though future contests may be held with the pernicious conditions mitigated or removed, those elected to office via unlawful procedures not only gain the sheen of incumbency, but are empowered in the interim to promulgate policy binding everyone in the jurisdiction--including means to further retain power." (9) As the 2020 census approaches and the Supreme Court's remedial rules grow more rigid, it has become necessary to consider the possibility that a final remedy could never materialize within the relevant decade. (10)

To be sure, the Court's caution is not entirely unwarranted. When federal courts must undertake "the unwelcome obligation of performing [redistricting] in the legislature's stead," (11) the "task is inevitably an exposed and sensitive one that must be accomplished circumspectly." (12) The procedural principles set out by the Court are intended to guide lower courts' discretion and "minimiz[e] [the] friction between [judicial] remedies and legitimate state policies." (13)

Minimizing this friction is a worthy goal, but the Court's current approach is a fraught one. As its flexible principles have hardened into doctrine, the Court's procedural guidance has begun to eclipse its constitutional substance. And this trend is accelerating ahead of the 2020 redistricting cycle. Absent a change in course, voting-rights plaintiffs can expect another round of multi-year litigation punctuated by cryptic decisions staying, vacating, and remanding redistricting remedies while legislatures charge ahead and shield themselves from electoral accountability with impunity.

Moreover, the Court's increasing procedural deference to legislatures may invite the very harm it seeks to ameliorate. By lowering the political cost of a constitutional violation, such deference increases the incentives for legislatures to commit violations in the first place. This draws courts into evermore-frequent conflict with legislatures. In other words, the Court's approach might increase the friction between federal courts and state legislatures. (14)

The Supreme Court should reflect on the regime it has wrought. Although each of its procedural rules appears reasonable in the abstract, the aggregate system encourages opportunism, creates a high risk of abuse, and renders tactical stalling stunningly simple. (15) If federal courts hope to provide timely relief from constitutional violations in the decade ahead, they must navigate the Court's procedural obstacle course carefully and incorporate equitable considerations into their case-management decisions. (16)

Meanwhile, the Supreme Court should return to a more deferential appellate posture, restore flexibility and accountability in the remedial process, and consider giving a nod to some effective and well-managed examples of equitable case management to provide affirmative guidance to lower courts. …

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