Lessons Learned from this Term’s Legislative Districting Decisions, Especially the Harris Case from Arizona

Posted in: Election Law

Over the next month, the Supreme Court will wrap up its work for this Term. Many of the most significant cases this year have fizzled—or will fizzle—because the death of Justice Scalia created a 4-4 tie (in which event the lower court result is affirmed but no meaningful precedent is set) or otherwise disinclined the remaining justices to do anything big, pending the confirmation of a new justice either later this year or early next.

But the Court this year still is rendering many significant rulings. One area in which the Court has already decided a few meaningful disputes is legislative districting. In the space below, I focus on one such case handed down in recent weeks, Harris v. Arizona Independent Redistricting Commission, a dispute that raises many vexing aspects of modern American democracy—deep dissatisfaction with elected officials, pervasive partisan zeal, troubling racial inequality, and contentious federal–state relations.

The case involves state legislative district lines drawn by an independent districting commission—that is, an entity separate from a state’s regular elected legislature—in 2010 after the last Census. This independent commission was created by a direct democracy initiative adopted in Arizona in 2000 wherein voters who were fed up with the elected legislature’s gerrymandering practices removed the job of drawing legislative district lines from the elected body and gave it to a new commission, one supposed to create districts for less partisan reasons.

The Harris case recently decided by the Court was a challenge not to the commission’s essential legality (which had been the subject of a separate and unsuccessful lawsuit), but to the particular district lines the commission has created. Specifically, the plaintiffs—individual Arizona voters—complained that the commission “diluted or inflated the votes of almost two million American citizens when [it] intentionally and systematically overpopulated sixteen Republican districts while underpopulating eleven Democrat districts . . . with the intent of creating an advantage for the Democratic party.” In other words, the claim is that by creating legislative districts of unequal size for partisan reasons, the commission violated the “one-person, one-vote” requirement of the Fourteenth Amendment.

The three-judge district court in the case (convened under a statute providing for a special court to hear districting challenges) rejected the challenge. The three-judge panel generated a convoluted and divided set of decisions, but it did make a number of factual findings, including that partisan motivation was one but not the predominant reason the lines were drawn to create unequally sized districts, and that the commission’s actions were instead largely driven by a desire to comply with federal Voting Rights Act (VRA) and implementing regulations, which were understood to require Arizona to take certain steps to increase the chances that racial-minority-preferred candidates could succeed in a sufficient number of districts.

The Supreme Court unanimously rejected the challenge, holding that because the difference in size between the smallest and the largest districts was less than 10 percent (a rule of thumb the Court said had been established by prior decisions), the plaintiffs could succeed only by showing “that it is more probable than not that [the deviation in size that did exist] reflects the predominance of illegitimate reapportionment factors rather than ‘legitimate considerations.’” Applying this standard, and deferring to the lower court’s factual determinations as to the Arizona Commission’s motivations, the Court found that the commission’s population deviations “predominantly reflected. . . efforts to achieve compliance with the federal Voting Rights Act, not to secure political advantage for one party.”

What are the lessons or reminders that Harris offers? Here are four:

First, we must always remember that reversal of a lower court is less likely when a case arrives at the Court via an appeal (as Harris did) rather than through the ordinary route—a writ of certiorari. The Court is under a greater obligation to hear appeals cases—provided the claims raised are not patently weak—than it is in most cases (on which certiorari is sought). For that reason, we can’t infer very much about the Court’s attitude on the merits from the Court’s decision to take up the case. (It is easy to infer too much about the justices’ attitudes about the merits of a case on which they chose to grant certiorari as well, but at least in that setting the Court ordinarily has great latitude as to whether to accept review, so that, in many instances at least, some inferences about merits views are defensible.) This same lesson can be illustrated by the other significant districting case decided a few weeks before Harris, Evanwel v. Abbott, where the Court affirmed a three-judge district court’s rejection of the claim that Texas violated the “one-person, one-vote” principle by equalizing the number of people—rather than the number of voting-age citizens—in each district.

Second, notwithstanding the importance of the “one-person, one-vote” doctrinal revolution in the 1960s—the first time the Court said the Constitution requires states to create districts of equal size—states retain some significant flexibility to draw districts making use of legitimate and historically important considerations. Harris (and Evanwel) affirms that “honest and good-faith” efforts by state legislatures are required, but that states will not be subject to judicial second-guessing so long as they are trying to do the right thing, and so long as the district drawing does not result in patently unfair inequality.

Third, even assuming that partisan advantage is an illegitimate (rather than permissible) motive, the Court is not going to police states whose inequality between districts is less than 10 percent unless the partisan motives predominate. Some desire to help one political party does not render a state’s actions unconstitutional, provided that other motives accounted for the majority of the state’s ultimate decisions. In this regard, the findings of the three-judge district court as to actual legislative motivation are hugely important in these cases. Like other factual findings in the trial court, the Supreme Court defers to these findings as to predominant motive.

Finally, the fact that relevant portions of the Voting Rights Act on which the Arizona districting commission relied have since been held unconstitutional in Shelby County v. Holder in 2013 proved to be irrelevant to the Court. Apparently, the key question is whether the state acted in subjectively good faith at the time it drew the district lines—not whether the state’s desires were objectively worthy of credit—such that the constitutionality of the federal law on which the state was relying could not undermine the state’s honest efforts (unless the federal law was patently unconstitutional, in which case we might question the sincerity of the state’s reliance).

This was the part of the Harris opinion whose brevity and unanimity surprised me. I don’t disagree with the result or the analysis, but I would have expected at least some of the justices to at least explore the possibility that federal statutes that may not have been constitutional at the time Arizona acted should not be allowed to influence district lines that continue in force today. If we return to the main theme of this Term—Justice Scalia’s death—we might wonder to what extent uncertainty over whether Shelby County (a controversial 5-4 ruling with Justice Scalia in the majority) will itself be overruled (and the Voting Rights Act resurrected) when the Court is at full strength accounted for the apparently uncontroversial decision by the Court in Harris not to attach much weight to Shelby County in the Court’s assessment of Arizona’s actions.

Justice Scalia’s absence might help account for another aspect of Harris—the apparently easy decision by all the justices that claims of excessive partisan motivation in district-line-drawing are justiciable in federal court to begin with. A little over a decade ago, Justice Scalia delivered the judgment of the Court—writing for himself and three other justices in Vieth v. Jubelirer (2004)—to hold that because “excessive” partisanship is not an idea that courts can translate into administrable doctrine, the federal judiciary should not wade into these kinds of cases at all. Justice Scalia and the three other justices who joined him could not quite get a fifth vote to overrule prior cases allowing partisan gerrymandering claims to be heard in federal court, but Justice Kennedy did separately express reservations about how much federal judges could accomplish in this realm. Perhaps the reason the Harris Court did not discuss justiciability at all is that the plaintiff’s allegations of significant partisan motivation were factually baseless in any event, but had Justice Scalia remained on the Court, I would not have been surprised to see him comment on whether the Court should be reaching the merits at all.

As in so many other areas, the Court in this setting is different in his absence.

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