Finding the Sweet Spot: Deference in Redistricting
Kincaid, Meredith C., Texas Journal on Civil Liberties & Civil Rights
I. Introduction 122
II. Competing Ideals 124
A. Merits of Deference 125
B. Concerns About Deference 126
III. overarching considerations 128
A. When Does the Deference Question Arise? 128
B. Upham v. Seamon and Perry v. Perez 130
C. Should All Legislative Policies be Deferred to Equally?. 132
/. State Constitution as the Legislative Policy Source 133
2. A Skeptical Court: Multimember Districting and Alternative Voting Systems 133
3. Creation of Minority Opportunity Districts 135
4. Presence of Discriminatory Purpose and Section 5 137
IV. Models Along the Deference Spectrum 138
A. The Extremes 138
1. Complete Deference 138
i. Covered Jurisdictions 139
ii. Non-Covered Jurisdictions 139
2. Zero Deference 141
3. An Extreme? Maintain the Status Quo 141
i. Interim Maps 142
ii. Permanent Maps 143
B. Sweet Spot Contenders 144
1. Defer Except for Challenge Districts (Leave Unchallenged Districts in the Adopted Map Untouched) 144
i. Treatment of Challenged Districts 144
ii. Practical Difficulties 145
2. Principles Over Lines 146
i. The Less Deferential Version 146
ii. The More Deferential Version 147
V. Deference and the Constitutionality of Section 5 14
VI. Conclusion 151
"Now, I do want to talk about the deer with two antlers, because what that ignores is that in the benchmark plan, the deer had one antler and an antenna."
~Paul Clement, attorney for the State of Texas, describing the design of a district in El Paso in oral argument for Perry v. Perez1
Redistricting plays a major role in American democracy. Census after census, map drawers (most often legislators) draw districts and courts grapple with what kind of supervisory role they should play in redistricting. Even if the public is interested in the process and wants to hold map-drawing legislators accountable for redistricting decisions, self-interested drawers can redistrict around major anticipated threats. Thus, complaints often have to be channeled through the courts.
When evaluating whether a districting plan contains any constitutional or statutory violations, the U.S. Supreme Court's analysis can be fairly fact-intensive. But with respect to when and how to defer to the map-drawing entity, the Court's approach is often couched in abstract terms about interests and policies. This approach may not be altogether helpful when the practical reality sets in-at the end of the day, lines must be drawn.
The Court recently held in the per curiam opinion, Perry v. Perez, that a district court must defer to legislative policies in drawing an interim map, to the extent that those policies do not violate the U.S. Constitution or the Voting Rights Act.2 This concept is not new, and neither is the Court's presentation of the district court's task as one that sounds almost simple.3 But in the redistricting context, the practical application of deference is anything but simple.
Redistricting involves a variety of legislative policy choices. Some policies may be required by state constitutional mandate. Others may be applied to the map but never recorded as something the legislature intended to do. Some may be chosen for parts of the map but not applied consistently statewide. Others still may be partly motivated by a discriminatory intent or may result in a disparately negative effect on minority communities. And of course, some jurisdictions are covered under Section 5 of the Voting Rights Act-an extraordinary burden-shifting remedy that has become somewhat controversial in recent years. How does a district court defer to legislative policy choices in the midst of these various circumstances, while also adequately accounting for the rights that should be protected by the Constitution and the Voting Rights Act?
Parsing legislative choices from an adopted map and distilling them into a set of policies to which district courts should defer is a difficult task. …