Say the Magic Words: Establishing a Historically Informed Standard to Prevent Partisanship from Shielding Racial Gerrymanders from Federal Judicial Review

Authors

Emily K. Dalessio, Washington and Lee University School of LawFollow

Abstract

In its 2019 decision in Rucho v. Common Cause, the Supreme Court closed the doors of the federal courts to litigants claiming a violation of their constitutional rights based on partisan gerrymandering. In Rucho, the Court held that partisan gerrymandering presents a political question that falls outside the jurisdiction of the federal courts. However, the Supreme Court did not address an insidious consequence of this ruling: namely, that map-drawers may use partisan rationales to obscure what is otherwise an unconstitutional racial gerrymander. This Note uses North Carolina as an example of a state with a long history of gerrymandering—both racial and partisan. Over the course of the last quarter century, the Supreme Court has repeatedly struck down North Carolina’s redistricting efforts as the product of racial gerrymandering. Nonetheless, when the State changed its strategy, arguing that it based its redistricting efforts on partisan goals, the Supreme Court in Rucho ultimately declined to review the constitutionality of the map, allowing it to stand. This leaves voters potentially unable to challenge redistricting where, as is the case in North Carolina, race and political behavior are closely aligned and the map-drawers claim that the map was designed to secure partisan advantage, even if racial demographics were central to their considerations. In effect, Rucho creates a “magic words” test that incentivizes map-drawers to sanitize the legislative record of references to race, in favor of references to partisanship, in order to insulate redistricting plans from federal judicial review.

This Note suggests that the Supreme Court adopt a test to distinguish between racial and partisan gerrymandering using the approach the Court took in Flowers v. Mississippi—another 2019 decision. In Flowers, the Court placed great emphasis on Mississippi’s history of racial discrimination in jury selection in finding that the State had again violated the Equal Protection Clause in the case before it. Applying that logic to the issue of gerrymandering, this Note proposes a test that would presume that a challenged map from a state with a history of racial gerrymandering was a product of racial gerrymandering. The State would then face a high burden to rebut that presumption before the reviewing court could decide whether the case presents a political question under Rucho. The test this Note proposes would safeguard the right to vote, especially for Black and minority voters in states with histories of voter suppression and in so doing, ensure that the fundamentals of the democratic process are not subject to further erosion.

Recommended Citation

Emily K. Dalessio, Say the Magic Words: Establishing a Historically Informed Standard to Prevent Partisanship from Shielding Racial Gerrymanders from Federal Judicial Review, 77 Wash. & Lee L. Rev. 1907 (2020).
Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol77/iss4/9