SCOTUS Decision May Allow More Partisan Redistricting

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By Kimberly Strawbridge Robinson

April 20 — State legislative redistricting plans with “minor” population deviations—those under 10 percent—will rarely violate the one-person, one-vote principle, the U.S. Supreme Court said April 20 in a decision upholding Arizona's redistricting plan.

That “safe harbor” for population deviations less than 10 percent from absolute equality among districts opens the door for more partisanship in state legislative redistricting, Mark F. (Thor) Hearne II of Arent Fox LLP, Washington, told Bloomberg BNA April 20. Hearne argued on behalf of the voters challenging the Arizona plan.

But Anita S. Earls of the Southern Coalition for Social Justice, Durham, N.C., suggested that the “safe harbor” isn't really a safe harbor at all.

“Some states have tried to argue that the 10% deviation absolutely insulates a plan from challenge,” Earls, whose organization filed an amicus brief in support of neither party, told Bloomberg BNA April 20. The unanimous decision here makes clear that's not correct, she said.

However, cases where the deviation is lower than 10 percent will “succeed only rarely, in unusual cases,” Justice Stephen G. Breyer wrote for the unanimous court.

“It’s a glass-half-full-and-half-empty sort of thing,”Daniel Tokaji, election law professor at Ohio State University's Moritz College of Law, Columbus, Ohio, told Bloomberg BNA April 20.

Clarifies Burden

“On one hand, the opinion clarifies that plaintiffs have the burden of showing that ‘illegitimate considerations' predominated, which they won’t easily be able to satisfy,” Tokaji said.

“On the other hand, it leaves the door open to challenging deviations under 10 [percent] for state legislative districts,” he added.

The court explained that it has generally “refused to require States to justify deviations of 9.9 [percent].”

But voters can challenge such plans if they can show “that it is more probable than not” that the deviation “reflects the predominance of illegitimate reapportionment factors,” the court said.

This is “the first time the Court has explicitly said that a map with a deviation of less than 10 percent can be challenged at all,”Jessica Ring Amunson of Jenner & Block LLP, Washington, told Bloomberg BNA April 20. Amunson represented the commission that created the redistricting plan.

The law was “somewhat muddled” on that point since Cox v. Larios, 542 U.S. 947 (2004), Tokaji said.

There the court upheld a lower court's determination that Georgia's redistricting plan violated the one-person, one-vote principle even though the population deviations were less than 10 percent. But that decision was just a summary affirmance, Amunson said.

This case clarifies what the challengers will have to show in order to be successful, she said. That showing, however, will be hard to make, Tokaji said.

Favors Republicans

Hearne disagreed that the court's opinion invited litigation, even on a limited basis, for safe harbor deviations.

He said the court pretty clearly told challengers that they shouldn't bring a case if there isn't at least a 10 percent population deviation.

That means that even if partisanship is the driving factor in the redistricting process, as long as the population deviation that results from the process is 9.9 percent or less, the court isn't going to entertain the challenge, Hearne said.

He added that it's common for state legislatures to try to squeak under that 10 percent floor in order to avoid judicial review.

By seemingly blessing that approach, the Supreme Court has tempered the one-person, one-vote principle, at least with regard to state legislative redistricting, Hearne said.

Redistricting plans for federal congressional districts are held to different, stricter standards.

Tokaji agreed. “Because line-drawers generally want to reduce the risk of litigation, this will cause them to keep state legislative districts closer to exact population equality than they otherwise would have,” he said.

“In the end, though, it won’t do much to curb partisan gerrymandering, given that it’s possible to adhere to the requirement of population equality while still drawing a map that strongly favors one party or the other,” Tokaji said.

The practical implications of that favors Republicans, Hearne added. Even though both Democrats and Republicans will be able to use partisanship to draw state legislative lines, Republicans control more state legislatures, he said.

Legitimate Concerns

Still, the court specifically refused to decide if partisanship was in fact an appropriate redistricting consideration.

States have some flexibility to deviate from the one-person, one-vote principle for “‘legitimate considerations incident to the effectuation of a rational state policy,' ” the court said, quoting its landmark decision in Reynolds v. Sims, 377 U.S. 533 (1964), which first established the principle.

For example, states can consider “maintaining the integrity of political subdivisions,” or “the competitive balance among political parties,” the court said.

But even assuming that partisanship isn't among these legitimate considerations, the challengers hadn't met the high burden of showing that partisanship actually predominated the redistricting process here, the court said.

For example, the court noted that District 8 previously “leaned Republican.” The current redistricting plan made District 8 “politically more competitive,” the court said.

But the population deviation associated with that change was the result of “ ‘good-faith efforts to comply with the Voting Rights Act,' ”—namely, ensuring that minority groups could elect their preferred candidate, the court said, citing the decision below.

That almost all of the “Democratic-leaning districts are somewhat underpopulated” and almost all of the “Republican-leaning districts are somewhat overpopulated” likely reflects “the tendency of minority populations in Arizona in 2010 to vote disproportionately for Democrats,” not a desire to explicitly favor Democrats, the court said.

2020 Just Around the Corner

Amunson said that given the court's express reservation over whether partisanship can support a deviation from the one-person, one-vote principle, it's possible the issue will return to the court.

But Tokaji said don't count on it. “In most cases, I suspect, states will be able to argue that compliance with the VRA, compactness, or other legitimate considerations motivated them to deviate—and hard for plaintiffs to prove otherwise.”

However, Amunson noted that even though “we are still litigating over the redistricting maps from the 2010 cycle, the 2020 cycle is not that far away.”

“Redistricters in 2020 will certainly want to be careful given the Court’s statement that it has not decided whether partisanship is an illegitimate redistricting factor,” she said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at