Reconsidering racial and partisan gerrymandering

University of Chicago Law Review

Volumn 78, Issue 2, 2011, Pages 553-604

  Cox, Adam B ^a   Holden, Richard T ^b  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

^b UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

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EID: 80053046346     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (190)

1. See, for example, Stephen Ansolabehere, Nathaniel Persily, and Charles Stewart III, Race, Region, and Vote Choice in the 2008 Election: Implications for the Future of the Voting Rights Act, 123 Harv L Rev 1385, 1386 (2010).
2. See Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 ("VRA Reauthorization Act of 2006") § 5, Pub L No 109-246, 120 Stat 577, 580-81, codified at 42 USC § 1973c.
3. Northwest Austin Municipal Utility District Number One v Holder, 129 S Ct 2504 (2009) (NAMUDNO).
4. See id at 2511-12. NAMUDNO, one of the most anticipated cases decided by the Supreme Court in recent years, concerned a challenge to the constitutionality of the newly reauthorized § 5 of the VRA-one of the Act's core enforcement provisions. The Supreme Court avoided the constitutional question by adopting a strained interpretation of the Act's statutory language. See id at 2513-19 (holding that the VRA allows bailout suits against a broader array of political subdivisions than the text appears to cover). But many prominent voting rights scholars and Court watchers have read the decision as a warning to Congress that the Court is prepared to strike down § 5 in a future lawsuit. See, for example, Richard H. Pildes, A Warning to Congress, NY Times Room for Debate (June 22, 2009), online at http://roomfordebate.blogs. nytimes.com/2009/06/22/the -battlenot-the-war-on-voting-rights/#richard (visited Dec 23, 2010) ("Today's nearly unanimous opinion may be sending ⋯ a message to Congress.");
5. Tom Goldstein, Analysis: Supreme Court Invalidates Section 5's Coverage Scheme, SCOTUSblog (June 22, 2009), online at http://www.scotusblog.com/2009/06/ analysis-supreme-court-invalidates-section-5's-coverage-scheme-2/ (visited Dec 23, 2010) ("A failure by Congress to respond to the Court's opinion will be fatal to Section 5.").
6. A few potential such suits are already on the horizon, and the next wave of redistricting will almost surely bring the Act's constitutionality squarely before the Court. See Linda Greenhouse, Is Anyone Watching?, NY Times Opinionator (Feb 23, 2011), online at http://opinionator.blogs.nytimes.com/2011/ 02/23/isanyone-watching/ (visited Apr 3, 2011) (describing a new challenge to the VRA, filed by Shelby County, Alabama, that is currently making its way through the lower federal courts), discussing Shelby County v Holder, No 1:10-cv-00651 (DDC filed Apr 27, 2010).
7. In Hanna Pitkin's classic formulation, "descriptive" representation is concerned with representing the identity of a voter, while "substantive" representation is concerned with representing the interests of a voter. See Hanna Fenichel Pitkin, The Concept of Representation 60-61, 209 (California 1967).
8. See 2 USC § 2c (requiring that members of the House of Representatives be elected using single-member districts). See also Douglas J. Amy, Behind the Ballot Box: A Citizen's Guide to Voting Systems 55-56 (Praeger 2000) (noting that nearly all states use single-member districts to elect a large majority of their state legislators).
9. The Supreme Court has never been particularly explicit about which provision of the Constitution confers on states initial authority to draw federal congressional districts. While Article I, § 4's so-called Elections Clause is an obvious candidate, see US Const Art I, § 4 ("The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof."), the Court does not appear to have explicitly relied upon it. See Adam Cox, Partisan Fairness and Redistricting Politics, 79 NYU L Rev 751, 780-81 n 114 (2004) (describing ambiguity over the constitutional source of authority).
10. Authority over state legislative districting is controlled by state constitutions and statutes. Most states treat redistricting as an ordinary legislative function. See Michael P. McDonald, A Comparative Analysis of Redistricting Institutions in the United States, 2001-02, 4 State Polit & Pol Q 371, 377 (2004) (stating that thirty-eight states use the ordinary legislative process for congressional redistricting and twenty-six states do so for state legislative redistricting).
11. See Elmer Cummings Griffith, The Rise and Development of the Gerrymander 16-20 (Chicago 1907) (tracing the practice back to colonial times);
12. Henry F. Griffin, The Gerrymander, Outlook 186, 187-89 (Jan 28, 1911) (claiming that early Revolutionary figures such as William Penn, Patrick Henry, and Thomas Jefferson used redistricting to gain partisan political advantage well before the term was coined).
13. See, for example, Chris Cillizza, Democrats Look to Grab the Redistricting Reins, Wash Post A2 (Mar 22, 2010);
14. Nathan L. Gonzales and Lauren W. Whittington, Parties Prepping for Redistricting Fight, Roll Call (May 18, 2009), online at http://www.rollcall. com/issues/54-132/-34992-1.html (visited Feb 15, 2011).
15. See Baker v Carr, 369 US 186, 237 (1962);
16. Reynolds v Sims, 377 US 533, 577 (1964) ("[T]he Equal Protection Clause requires that a State make an honest and good faith effort to construct districts ⋯ as nearly of equal population as is practicable.").
17. See Karcher v Daggett, 462 US 725, 752 & n 10 (1983) (Stevens concurring) (noting that developments in computer technology have made gerrymandering easier);
18. Samuel Issacharoff, Pamela S. Karlan, and Richard H. Pildes, The Law of Democracy: Legal Structure of the Political Process 829 (Foundation 3d ed 2007) ("[T]he one-person, one-vote rule at best inconvenienced would-be gerrymanderers.").
19. See Henry L. Chambers Jr, Enclave Districting, 8 Wm & Mary Bill Rts J 135, 144, 161-62 (1999).
20. In 1986, the Court held that partisan gerrymandering claims are justiciable under the Constitution, but the justices disagreed about how to identify unconstitutional partisan gerrymanders. See Davis v Bandemer, 478 US 109, 126-27 (1986). Compare id at 127-37 (White) (plurality) with id at 169-73 & n 7 (Powell concurring). See also text accompanying notes 150-53. Since then, a majority of the Court has repeatedly declined to overturn Bandemer and hold that gerrymander claims are nonjusticiable political questions.
21. See Vieth v Jubelirer, 541 US 267, 306 (2004) (Kennedy concurring); id at 317 (Stevens dissenting); id at 343 (Souter dissenting, joined by Ginsburg); id at 355 (Breyer dissenting);
22. League of United Latin American Citizens v Perry, 548 US 399, 413-14, 420, 423 (2006) (LULAC). Nonetheless, the Court has rejected every allegation of unconstitutional gerrymandering that has come before it.
23. See Vieth, 541 US at 306;
24. LULAC, 548 US at 413-14.
25. See Stephen Tuck, Making the Voting Rights Act, in Richard M. Valelly, ed, The Voting Rights Act: Securing the Ballot 77, 83-85 (CQ 2006).
26. See, for example, David Lublin, Letter to the Editor, Cost of Gerrymandering, NY Times A28 (Dec 13, 1994);
27. Steven A. Holmes, Did Racial Redistricting Undermine Democrats?, NY Times A32 (Nov 13, 1994);
28. Peter Applebome, The Rising G.O.P. Tide Overwhelms the Democratic Levees in the South, NY Times A27 (Nov 11, 1994);
29. George F. Will, Some Revolution, Wash Post A21 (Sept 1, 1994).
30. See also Daniel Hays Lowenstein, Richard L. Hasen, and Daniel P. Tokaji, Election Law: Cases and Materials 183-84 (Carolina 4th ed 2008).
31. See David T. Canon, Race, Redistricting, and Representation: The Unintended Consequences of Black Majority Districts 2 (Chicago 1999);
32. David Lublin, The Republican South: Democratization and Partisan Change 107, 132 (Princeton 2004);
33. David Lublin, The Paradox of Representation: Racial Gerrymandering and Minority Interests in Congress 112-14 (Princeton 1997);
34. Carol M. Swain, Black Faces, Black Interests: The Representation of African Americans in Congress 205 (Harvard 1993);
35. Kimball Brace, Bernard Grofman, and Lisa Handley, Does Redistricting Aimed to Help Blacks Necessarily Help Republicans?, 49 J Polit 169, 183 (1987);
36. Charles Cameron, David Epstein, and Sharyn O'Halloran, Do Majority-Minority Districts Maximize Substantive Black Representation in Congress?, 90 Am Polit Sci Rev 794, 794-95, 798 n 5 (1996);
37. David Epstein, et al, Estimating the Effect of Redistricting on Minority Substantive Representation, 23 J L, Econ, & Org 499, 499 (2007);
38. David L. Epstein and Sharyn O'Halloran, Trends in Minority Representation, 1974 to 2000, in David L. Epstein, et al, eds, The Future of the Voting Rights Act 61, 77 (Russell Sage 2006);
39. David Epstein and Sharyn O'Halloran, Measuring the Electoral and Policy Impact of Majority-Minority Voting Districts, 43 Am J Polit Sci 367, 368 (1999);
40. Kevin A. Hill, Does the Creation of Majority Black Districts Aid Republicans? An Analysis of the 1992 Congressional Elections in Eight Southern States, 57 J Polit 384, 384 (1995);
41. David Lublin, Racial Redistricting and African-American Representation: A Critique of "Do Majority-Minority Districts Maximize Substantive Black Representation in Congress?," 93 Am Polit Sci Rev 183, 183 (1999);
42. David Lublin and D. Stephen Voss, Racial Redistricting and Realignment in Southern State Legislatures, 44 Am J Polit Sci 792, 793 (2000);
43. Daniel D. Polsby and Robert D. Popper, Ugly: An Inquiry into the Problem of Racial Gerrymandering under the Voting Rights Act, 92 Mich L Rev 652, 682 (1993). To be clear, these scholars are not interested only in the partisan consequences of minority-majority districts. They are also intensely interested in these districts' consequences for different forms of minority representation. We return at the end of the Article to consider the consequences for minority representation of our central claims about the optimal structure of partisan gerrymandering.
44. See, for example, Richard L. Engstrom, Race and Southern Politics: The Special Case of Congressional Districting, in Robert P. Steed and Laurence W. Moreland, eds, Writing Southern Politics: Contemporary Interpretations and Future Directions 91, 110 (Kentucky 2006) (arguing that "the Republican Party would have controlled the House by 1995, or at latest by 1997, even without its southern gains");
45. Kenneth W. Shotts, The Effect of Majority-Minority Mandates on Partisan Gerrymandering, 45 Am J Polit Sci 120, 121 (2001) (predicting that the effects of redistricting are not uniformly beneficial to Republicans);
46. Lani Guinier, Don't Scapegoat the Gerrymander, NY Times Mag 36 (Jan 8, 1995) (claiming that Democrats lost control of Congress for at least three reasons other than the VRA).
47. See, for example, Issacharoff, Karlan, and Pildes, The Law of Democracy at 756-59, 764-66, 782, 786-817 (cited in note 15).
48. See Georgia v Ashcroft, 539 US 461, 481 (2003). Moreover, many writers have contended that politicians hold the same view and that this belief has led Democrats sometimes to resist the creation of majority-minority districts and Republicans to embrace them.
49. See, for example, Swain, Black Faces at 205 (cited in note 21) (observing that "Republican leaders have zealously urged the creation of the maximum number of 'safe' black and Hispanic districts" to drain their votes from districts represented by white Democrats);
50. Lowenstein, Hasen, and Tokaji, Election Law at 182 (cited in note 20). It is sometimes unclear, however, whether statements about the beliefs of politicians and party officials are the product of direct evidence or are, instead, the product of using the general consensus about the partisan consequences of minority districting as a lens through which to interpret the motivations of these political actors.
51. Issacharoff, Karlan, and Pildes, The Law of Democracy at 757 (cited in note 15). The other leading election law casebook captures the prevailing view in similar terms.
52. See Lowenstein, Hasen, and Tokaji, Election Law at 182 (cited in note 20) (citation omitted): A majority-minority district will usually be an overwhelmingly Democratic district. The concentration of Democrats in a number of such districts is likely to leave a disproportionate number of Republican voters in the rest of the state or jurisdiction. Given typical patterns of political geography in the United States, a districting plan that has a high number of majority-minority districts is likely to be one that benefits Republicans in the jurisdiction as a whole.
53. To be sure, the literature is not entirely monolithic. There is a smattering of other theories about why the creation of majority-minority districts would benefit Republicans. For example, a few scholars have argued that conservative white Democrats will flee to the Republican Party as minority participation increases within the Democratic Party-or at least that they will become more likely to vote for Republican candidates. See, for example, Maurice T. Cunningham, Maximization, Whatever the Cost: Race, Redistricting, and the Department of Justice 104-05 (Praeger 2001);
54. Laughlin McDonald, The 1982 Amendments of Section 2 and Minority Representation, in Bernard Grofman and Chandler Davidson, eds, Controversies in Minority Voting: The Voting Rights Act in Perspective 66, 81 (Brookings 1992) ("Increased minority participation has in turn caused an exodus of conservative white Democrats to the Republican party."). This theory echoes a much older argument, made by V.O. Key and others in the middle part of the twentieth century, that white voters might begin to support more conservative policies and politicians as the percentage of black voters grows within a district-a sort of backlash argument.
55. See V.O. Key Jr, Southern Politics in State and Nation 342-44 (Knopf 1949);
56. William R. Keech, The Impact of Negro Voting: The Role of the Vote in the Quest for Equality 99-102 (Rand McNally 1968).
57. See also Shaw v Reno, 509 US 630, 648 (1993) (suggesting that at least some majority-minority districts could exacerbate racial bloc voting). Nonetheless, the pack-and-crack theory we describe above dominates the literature on the relationship between partisan gerrymandering and minority districting.
58. See, for example, Lublin, The Paradox of Representation at 10 (cited in note 21): Creating new majority-minority districts requires shifting minorities out of adjoining majority white districts. Minorities gain control over the representative from the majorityminority district at the cost of losing influence over several representatives in majority white districts⋯. Democrats fear and Republicans hope that racial redistricting will produce exactly this result. Republicans think that packing liberal Democratic minority voters into a few districts made adjoining districts more conservative and Republican and helped them win control of the House in 1994.
59. For a small sample of the contemporary economics and political science literature, see, for example, Gary W. Cox and Jonathan N. Katz, Elbridge Gerry's Salamander: The Electoral Consequences of the Reapportionment Revolution 37-38 (Cambridge 2002);
60. Stephen Coate and Brian Knight, Socially Optimal Districting: A Theoretical and Empirical Exploration, 122 Q J Econ 1409, 1411 (2007);
61. Michael J. Kasper, The Almost Rise and Not Quite Fall of the Political Gerrymander, 27 NIU L Rev 409, 417-18 (2007);
62. Timothy Besley and Ian Preston, Electoral Bias and Policy Choice: Theory and Evidence, 122 Q J Econ 1473, 1473 (2007);
63. Thomas W. Gilligan and John G. Matsusaka, Public Choice Principles of Redistricting, 129 Pub Choice 381, 385 (2006);
64. Thomas W. Gilligan and John G. Matsusaka, Structural Constraints on Partisan Bias under the Efficient Gerrymander, 100 Pub Choice 65, 71 (1999);
65. Katerina Sherstyuk, How to Gerrymander: A Formal Analysis, 95 Pub Choice 27, 27-28 (1998);
66. Guillermo Owen and Bernard Grofman, Optimal Partisan Gerrymandering, 7 Polit Geo Q 5, 15 (1988).
67. Interestingly, the pack-and-crack intuition appears to go back at least to the turn of the twentieth century. See Griffin, The Gerrymander, Outlook at 187-89 (cited in note 12) ("Gerrymandering is the arranging of districts of representation by a political party in power so as to concentrate its opponents' majorities and scatter its own, thus giving itself small majorities in many districts and its opponents large majorities in a few districts.").
68. See, for example, Vieth, 541 US at 286 & n 7 (Scalia) (plurality); Issacharoff, Karlan, and Pildes, The Law of Democracy at 832 (cited in note 15) (describing the pack-and-crack strategy); id at 757 ("The strategy of partisan gerrymandering includes wasting as many votes of the other sides's partisans as possible by concentrating those voters into a few districts.");
69. Samuel Issacharoff and Pamela S. Karlan, Where to Draw the Line? Judicial Review of Political Gerrymanders, 153 U Pa L Rev 541, 551 (2004);
70. Pamela S. Karlan, All Over the Map: The Supreme Court's Voting Rights Trilogy, 1993 S Ct Rev 245, 249-50.
71. One exception to the widespread focus on redistricting with only two types of voters is the important work done by Ken Shotts. This work, which has been largely overlooked in the legal literature, constructs a model with three types of voters: minorities, white Democrats, and Republicans. See Shotts, 45 Am J Polit Sci at 122 (cited in note 22) (deviating from the traditional model of Republicans and Democrats by making the "simplifying assumption" that minorities are a subset of Democrats).
72. See also Gilligan and Matsusaka, 129 Pub Choice at 384-85 (cited in note 31) (employing a somewhat similar model). Shotts's model generally predicts that the VRA's majority-minority districting requirements have little consequence for either party.
73. See Shotts, 45 Am J Polit Sci at 121 (cited in note 22). In limited cases where the mandate is very large, it can constrain the Republicans, see id at 130, but this is quite different from the present Article, in which we argue that minority redistricting requirements affect the Republicans' optimal strategy in essentially every case where such a district is required.
74. One recent empirical paper takes this plan-wide approach to measuring the effects of majority-minority districts and provides suggestive evidence that the creation of majorityminority districts did not benefit Republicans and may in fact have benefited Democrats. See Ebonya Washington, Do Majority Black Districts Limit Blacks' Representation? The Case of the 1990 Redistricting *1 (unpublished manuscript, Oct 2010), online at http://www.econ.yale.edu/ faculty1/washington/washington-racebaseddistricting-oct2010.pdf (visited Dec 23, 2010). Thus, this emerging empirical work is supportive of the theoretical claims made in this Article.
75. See Cox and Katz, Elbridge Gerry's Salamander at 18-44 (cited in note 31) (arguing that gerrymandering will be party-protecting if one party controls the line-drawing process, but it will be incumbent-protecting if neither party has unilateral control);
76. Bruce E. Cain and Janet C. Campagna, Predicting Partisan Redistricting Disputes, 12 Legis Stud Q 265, 268 (1987) ("Partisan fights over redistricting usually center on two issues: incumbent displacement and partisan reconstruction of the seats.").
77. For state legislative districting, the logic of this is straightforward. Things are a bit more complicated for congressional districting. States have primary control over federal congressional districting, but each state draws the districts only for its own congressional delegation. See note 11. A delegation is in some sense an arbitrary subunit of the House of Representatives; there is no direct connection between maximizing the seats won in a particular delegation and maximizing a party's seat share in Congress. See Adam B. Cox, Partisan Gerrymandering and Disaggregated Redistricting, 2004 S Ct Rev 409, 412-18 (discussing the disaggregated nature of congressional redistricting and how it complicates both the strategies parties pursue and the judicial review of partisan gerrymandering).
78. For a formal model of how a party's redistricting strategies differ in a system of disaggregated redistricting, see John N. Friedman and Richard T. Holden, Optimal Gerrymandering in a Competitive Environment *4-10 (unpublished manuscript, Mar 2010), online at http://faculty.chicagobooth.edu/ appliedtheory/papers/2010-10.pdf (visited Dec 23, 2010).
79. See Georgia v Ashcroft, 539 US 461, 469-71 (2003).
80. Considerable work by political scientists-including the large body of literature on party identification and voter polarization-is concerned at least indirectly with the extent to which American voters' support for one party or the other at the polls can be reliably predicted. For a recent summary of some of this work, see generally Morris P. Fiorina and Samuel J. Abrams, Political Polarization in the American Public, 11 Ann Rev Polit Sci 563 (2008).
81. See Pew Research Center for the People and the Press, Independents Take Center Stage in Obama Era: Trends in Political Values and Core Attitudes: 1987-2009 *2 (May 21, 2009), online at http://people-press.org/report/517/ political-values-and-core-attitudes (visited Dec 23, 2010) (finding that 36 percent of registered voters were independents).
82. Indeed, even with just three voter types, pack-and-crack is suboptimal. See John N. Friedman and Richard T. Holden, Optimal Gerrymandering: Sometimes Pack, but Never Crack, 98 Am Econ Rev 113, 113 (2008).
83. In further work, Friedman and Holden show that this strategy also applies in a strategic setting where Democrats control the redistricting process in some states and Republicans in others. See Friedman and Holden, Optimal Gerrymandering in a Competitive Environment at *3-5 (cited in note 36).
84. See Friedman and Holden, 98 Am Econ Rev at 121-28 (cited in note 41).
85. See Friedman and Holden, 98 Am Econ Rev at 120 (cited in note 41).
86. John Friedman and Richard Holden show that matching slices holds for any objective function that is strictly increasing in the number of seats won (even if some seats are valued more than others). This means that the model excludes only objective functions according to which a redistricter would prefer to pick a plan that leads to a lower expected seat share for her party. See Friedman and Holden, 98 Am Econ Rev at 130-32 (cited in note 41). Basically, increasing the probability of winning any one district, holding others constant, has a linear impact on any such objective function. The assumption we employ for ease of exposition-that the gerrymanderer cares only about the expected number of districts-imposes a linear impact directly.
87. See CNN, Election Center 2008: Exit Polls, online at http://www.cnn.com/ ELECTION/2008/results/polls/#USP00p1 (visited Apr 3, 2011);
88. CNN, America Votes 2004: Election Results, online at http://www.cnn.com/ ELECTION/2004/pages/results/states/US/P/00/epolls.0.html (visited Apr 3, 2011);
89. ABC Exit Polls (2000), online at http://abcnews.go.com/sections/politics/ 2000vote/general/exitpoll-hub.html (visited Apr 3, 2011);
90. CNN, The Vote '96: Presidential Election Exit Poll Results-Part 1, online at http://www.cnn.com/ALLPOLITICS/1996/elections/natl.exit.poll/index1.html (visited Apr 3, 2011);
91. Roper Center for Public Opinion Research, US Elections: How Groups Voted in 1992, online at http://www.ropercenter.uconn.edu/elections/how-groups-voted/ voted-92.html (visited Apr 3, 2011).
92. For various exit polls detailing voting patterns by race, see, for example, CNN, America Votes 2004.
93. For an important analysis of those patterns in the 2008 presidential election, see Ansolabehere, Persily, and Stewart, 123 Harv L Rev at 1411-24 (cited in note 2).
94. See notes 26-31 and accompanying text. See also David Ian Lublin, Race, Representation, and Redistricting, in Paul E. Peterson, ed, Classifying by Race 111, 124 (Princeton 1995) (arguing that "Republicans may substantially benefit" from the "inherent conflict between maximizing the number of black majority districts and the number of Democratic districts").
95. See, for example, Cameron, Epstein, and O'Halloran, 90 Am Polit Sci Rev at 794 (cited in note 21) (arguing that "minority candidates may have a substantial chance of being elected from districts with less than 50% minority voters"); Bernard Grofman, Lisa Handley, and David Lublin, Drawing Effective Minority Districts: A Conceptual Framework and Some Empirical Evidence, 79 NC L Rev 1383, 1423 (2001). Richard Pildes summarizes the social scientists' conclusions about plurality districts as follows: Indeed, it is conceivable that minority politicians and Democrats would favor spreading out voters in a current safe district across two coalitional [that is, plurality] districts in a covered jurisdiction⋯. In particular, the Republican Party has come to recognize that the "safe districting" approach of the 1990s favors its partisan interests, while the Democratic Party has recognized the opposite⋯. There is nothing far fetched about this; the Republican Party is already pursuing precisely this strategy in seeking to have Georgia's 2000 redistricting plan, drawn by a Democratically controlled legislature, overturned on the grounds that it violates section 5 because the plan does not create enough majority-black congressional districts.
96. Richard H. Pildes, Is Voting-Rights Law Now at War with Itself? Social Science and Voting Rights in the 2000s, 80 NC L Rev 1517, 1558-59 & n 116 (2002).
97. See, for example, Charles S. Bullock III and Richard E. Dunn, The Demise of Racial Districting and the Future of Black Representation, 48 Emory L J 1209, 1240-41 (1999) (discussing changes in the behavior of white voters that have led to lower levels of racially polarized voting).
98. For an overview of the VRA's legal requirements, see Issacharoff, Karlan, and Pildes, The Law of Democracy at 459-526, 595-820 (cited in note 15).
99. See VRA §§ 2, 5, 79 Stat at 437, 439. See also Valelly, ed, The Voting Rights Act at ix, 258 (cited in note 18) (discussing the impetus for the VRA).
100. 42 USC § 1973. As initially enacted, the language of § 2 more closely tracked the language of the Fifteenth Amendment. Compare VRA § 2, 79 Stat at 437 (prohibiting states and political subdivisions from applying a voting rule "to deny or abridge the right of any citizen of the United States to vote on account of race or color"), with US Const Amend XV, § 1 ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."). But after the Supreme Court held in City of Mobile v Bolden, 446 US 55 (1980), that § 2 required a showing of discriminatory purpose to make out a claim of vote dilution, id at 69-70, Congress amended the provision to make clear that it embodies an effects test. See Voting Rights Act Amendments of 1982 ("VRA Amendments") § 3, Pub L No 97-205, 96 Stat 131, 134, codified at 42 USC § 1973;
101. Adam B. Cox and Thomas J. Miles, Judicial Ideology and the Transformation of Voting Rights Jurisprudence, 75 U Chi L Rev 1493, 1497-1500 & n 25 (2008).
102. See Thornburg v Gingles, 478 US 30, 47-49 (1986).
103. For a careful account of the concept of vote dilution, see generally Heather K. Gerken, Understanding the Right to an Undiluted Vote, 114 Harv L Rev 1663 (2001).
104. See Drew S. Days III, Section 5 and the Role of the Justice Department, in Grofman and Davidson, eds, Controversies in Minority Voting 52, 53, 59 (cited in note 26).
105. See also South Carolina v Katzenbach, 383 US 301, 313-15 (1966).
106. See Beer v United States, 425 US 130, 141 (1976).
107. See David M. Guinn, Christopher W. Chapman, and Kathryn S. Knetchel, Redistricting in 2001 and Beyond: Navigating the Narrow Channel between the Equal Protection Clause and the Voting Rights Act, 51 Baylor L Rev 225, 227-28 (1999).
108. See Friedman and Holden, 98 Am Econ Rev at 129 (cited in note 41).
109. See Frederick McBride and Meredith Bell-Platts, Extreme Makeover: Racial Consideration and the Voting Rights Act in the Politics of Redistricting, 1 Stan J CR & CL 327, 349-50 (2005) (reviewing the multiple definitions of "compactness" in the context of a broader overview of traditional redistricting principles).
110. See, for example, Richard H. Pildes and Richard G. Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances after Shaw v. Reno, 92 Mich L Rev 483, 527-32 (1993).
111. One possible exception, involving Shaw v Reno, 509 US 630 (1993), and its progeny, is explored below in Part IV.A.
112. See Texas's Representatives-Congressional District Maps, online at http://www.govtrack.us/congress/findyourreps.xpd?state=TX (visited Apr 8, 2011).
113. The assumption is likely the result of a host of intellectual developments over the last several decades, including the recent popularity of competition-based accounts of politics, the focus on voting-aggregation issues (such as redistricting) within election law scholarship, and the more general rise of rational-actor approaches within the social sciences. See, for example, Samuel Issacharoff and Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 Stan L Rev 643, 707 (1998) (urging scholars to turn to competition-based accounts of politics to better understand voting rights jurisprudence); (Pubitemid 128426601)
114. Adam B. Cox, The Temporal Dimension of Voting Rights, 93 Va L Rev 361, 365-74 (2007) (describing the way in which voting rights issues are often conceptualized as aggregation problems).
115. Within the large political science literature on voter turnout, for example, some emerging work looks specifically at whether turnout is affected by district-specific effects. In a recent paper, Ebonya Washington found that African American Democratic candidates tend to increase turnout among both black and white voters-but that the difference in the change in turnout between groups is not statistically significant. See Ebonya Washington, How Black Candidates Affect Voter Turnout, 121 Q J Econ 973, 996 (2006) (finding that black voter turnout increases by 2.3 percent and white voter turnout by 2.2 percent for every black Democrat on the ballot).
116. See Marta Rose, Recent Decisions, Civil Rights-Race Obliviousness and the Invisibility of Whiteness: The Court's Construction of Race-Miller v. Johnson, 115 S. Ct. 2475 (1995), 69 Temple L Rev 1549, 1550 n 13 (1996);
117. Howard Fineman, Shifting Racial Lines, Newsweek 38 (July 10, 1995).
118. For extended discussion of these events, see Cunningham, Maximization, Whatever the Cost at 104-10 (cited in note 26);
119. J. Morgan Kousser, Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction 409-39 (North Carolina 1999).
120. Swain, Black Faces at 205 (cited in note 21).
121. See also id at 206; Gary King, John Bruce, and Andrew Gelman, Racial Fairness in Legislative Redistricting, in Peterson, ed, Classifying by Race 85, 100, 107 (cited in note 57).
122. See Thornburg v Gingles, 478 US 30, 48-49 (1986).
123. See also, for example, United States v Dallas County Commission, 850 F2d 1433, 1440-41 (11th Cir 1988);
124. Campos v Baytown, 840 F2d 1240, 1249-50 (5th Cir 1988);
125. Jeffers v Clinton, 730 F Supp 196, 207-08 (ED Ark 1989);
126. Brown v Board of Commissioners, 722 F Supp 380, 392 (ED Tenn 1989);
127. McDaniels v Mehfoud, 702 F Supp 588, 592 (ED Va 1988);
128. Dillard v Baldwin County Board of Education, 686 F Supp 1459, 1470 (ED Ala 1988).
129. In North Carolina, South Carolina, Georgia, Alabama, Mississippi, and Texas, Democrats controlled both houses of the relevant state legislatures. See State Elective Officials and the Legislatures 1991-92 1-3, 25-28, 71-73, 103-05, 125-28, 134-37 (Council of State Governments 1991). While Democrats did not control the governorship in North Carolina, see id at 103, the North Carolina Constitution specifically denies the governor the power to veto redistricting plans drawn by the state legislature. See NC Const Art II, § 22, cl 5.
130. See Whitcomb v Chavis, 403 US 124, 161-62 (1971);
131. White v Regester, 412 US 755, 769-70 (1973).
132. See Shaw, 509 US at 642-44.
133. See, for example, Pamela S. Karlan and Daryl J. Levinson, Why Voting Is Different, 84 Cal L Rev 1201, 1202 (1996) ("We believe that the Court's attempt to integrate voting rights law into its more general approach to affirmative action is both misguided and incoherent."). (Pubitemid 126384879)
134. See, for example, Issacharoff, Karlan, and Pildes, The Law of Democracy at 757-58 (cited in note 15) (suggesting that Shaw might be understood to "limit not only race-based geographic manipulations of districts, but also the excessive concentration of minority voters in numbers well beyond those needed to ensure minority voters have an equal opportunity to elect candidates of choice").
135. See id 467-70; Georgia v Ashcroft, 195 F Supp 2d 25, 41-42 (DDC 2002);
136. Richard H. Pildes, The Supreme Court, 2003 Term-Foreword: The Constitutionalization of Democratic Politics, 118 Harv L Rev 29, 89-90 (2004);
137. Pamela S. Karlan, Georgia v. Ashcroft and the Retrogression of Retrogression, 3 Election L J 21, 29-31 (2004).
138. See Ashcroft, 539 US at 479-85.
139. Georgia's plan increased the number of majority-minority districts by one while substantially thinning out some of those districts. The three districts to which the attorney general objected, for example, all retained their majority-minority status: District 2 went from a black voting age population (BVAP) of 60.58 percent to 50.31 percent, District 12 from 55.43 percent to 50.66 percent, and District 26 from 62.45 percent to 50.80 percent. See Ashcroft, 539 US at 470-73, 487-88. Furthermore, the matching-slices model can help explain why Democratic legislators might have been willing to cut the majority-minority districts so finely (so finely that, in a few cases, the BVAP was greater than 50 percent but the population of registered voters actually fell slightly below 50 percent). See id at 473. Under the model, the relative size of the upper and lower slices depends on a number of features, including the quality of the information the redistricter has about voters, the mean preference of voters, the spread of voter preferences, and the number of districts to be drawn. See Friedman and Holden, 98 Am Econ Rev at 127-29 (cited in note 41) (providing detailed comparative statistics of the model). One prediction is that redistricters will cut slices more finely as they become more risk-seeking. In Georgia, where Republicans were on the cusp of coming to power for the first time since the end of Reconstruction, it is quite conceivable that Democratic redistricters became much more risk-seeking than they previously had been.
140. See Ashcroft, 539 US at 496-97 (Souter dissenting) (arguing that the Court's rule equating unquantifiable influence with actual majority-minority power would eviscerate the protection offered by § 5).
141. Issacharoff, Karlan, and Pildes, The Law of Democracy at 567 (cited in note 15).
142. Carl Hulse, By a Vote of 98-0, Senate Approves 25-Year Extension of Voting Rights Act, NY Times A16 (July 21, 2006).
143. See Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L J 174, 176-92 (2007) (describing the legislative dynamics of the 2006 reauthorization).
144. See id at 180 (stating that Republicans thought the bill created "inefficient Democratic districts"); Ramesh Ponnuru, The Longest "Emergency": Congress Debates (Sort of) the Voting Rights Act of 1965, Natl Rev 22 (July 17, 2006) (noting that the concentration of large numbers of Democratic voters in majority-minority districts has reduced the overall number of Democratic-leaning districts).
145. For one attempt to think about the extent to which § 5 might be redundant with § 2, see generally David Epstein and Sharyn O'Halloran, A Strategic Dominance Argument for Retaining Section 5 of the VRA, 5 Election L J 283 (2006).
146. See NAMUDNO, 129 S Ct at 2511-13 (noting concerns about federalism and inconsistency across states).
147. See Shaw, 509 US at 647-48, 657 (comparing voting blocs along racial lines to "political apartheid" that threatens to "balkanize us into competing racial factions").
148. See also Johnson v De Grandy, 512 US 997, 1019-21 (1994).
149. See Holder v Hall, 512 US 874, 905-09 (1994) (Thomas concurring);
150. United Jewish Organizations, Inc v Carey, 430 US 144, 186-87 (1977) (Burger dissenting).
151. See Bush v Vera, 517 US 952, 1074 (1996) (Souter dissenting) (arguing that majorityminority districting allows minority voters "to enter the mainstream of American politics," resulting not in "a state regime of ethnic apartheid, but ethnic participation and even a moderation of ethnicity's divisive effect in political practice").
152. See De Grandy, 512 US at 1019-21.
153. See Gingles, 478 US at 48-49; text accompanying notes 63-71.
154. See League of United Latin American Citizens v Perry, 548 US 399, 431-34 (2006) (LULAC);
155. De Grandy, 512 US at 1000;
156. Gerken, 114 Harv L Rev at 1671-76 (cited in note 67).
157. See LULAC, 548 US at 436-38;
158. De Grandy, 512 US at 1000. Until recently, the Court had left open the question whether this baseline should be measured at a statewide level or something smaller.
159. See Cox, 2004 S Ct Rev at 417 (cited in note 36).
160. See LULAC, 548 US at 435, 440-42 (criticizing the state for breaking up a cohesive Latino district while replacing it with a district that contained two geographically disparate Latino groups).
161. See also generally Adam B. Cox, Self-Defeating Minimalism, 105 Mich L Rev First Impressions 53 (2006) (discussing some problems with Justice Kennedy's approach).
162. See T. Alexander Aleinikoff and Samuel Issacharoff, Race and Redistricting: Drawing Constitutional Lines after Shaw v. Reno, 92 Mich L Rev 588, 601 (1993) (introducing the concept of "filler people"). One exception to this involves efforts to incorporate into vote dilution analysis more information about crossover voting patterns by white voters. Even in this context, however, courts and experts tend to employ information about general trends in racially polarized voting in a particular state or region. They rarely if ever ask how a particular group of white voters would behave if placed in a district with a large fraction of minority voters.
163. See Cox, 79 NYU L Rev at 798 (cited in note 11).
164. See Vieth v Jubelirer, 541 US 267, 304 (2004) (Scalia) (plurality);
165. LULAC, 548 US at 414.
166. See Reynolds v Sims, 377 US 533, 568 (1964) (holding that the Equal Protection Clause requires apportionment on the basis of population);
167. Gingles, 478 US at 48-51.
168. See also Vieth, 541 US at 291 (Scalia) (plurality) (describing this virtue of the one-person, one-vote doctrine).
169. See Vieth, 541 US at 282, 285 (Scalia) (plurality); id at 318 (Stevens dissenting);
170. Bandemer, 478 US at 130-32.
171. For a discussion of this general reluctance, see Gerken, 114 Harv L Rev at 1709-10 (cited in note 67).
172. See Cox, 93 Va L Rev at 374-75 & n 45 (cited in note 93) (arguing that the district-level focus is misguided).
173. See Brief of Amici Curiae Professors Gary King, Bernard Grofman, Andrew Gelman, and Jonathan N. Katz, in Support of Neither Party, League of United Latin American Citizens v Perry, No 05-204, *3-9 (US filed Jan 10, 2006) (available on Westlaw at 2006 WL 53994) (advocating the use of a symmetry standard requiring that "the electoral system treat similarlysituated political parties equally, so that each receives the same fraction of legislative seats for a particular vote percentage").
174. See Issacharoff and Karlan, 153 U Pa L Rev at 572, 574 (cited in note 32) (arguing that a bipartisan gerrymander amounts to a "nonaggression pact" in favor of incumbents and "skews the distribution politically by driving the center out of elective office").
175. For a general discussion of such indirect strategies, see Adam B. Cox, Designing Redistricting Institutions, 5 Election L J 412 (2006);
176. Cox, 79 NYU L Rev at 763-89 (cited in note 11).
177. Barack Obama won 67 percent of the Latino vote but 95 percent of the African American vote, and John Kerry won 53 percent of the Latino vote but around 88 percent of the African American vote. See CNN, Election Center 2008 (cited in note 54);
178. CNN, America Votes 2004 (cited in note 54).
179. See also Ansolabehere, Persily, and Stewart, 123 Harv L Rev at 1401, 1405, 1407-09, 1433-35 (cited in note 2) (noting that Latino voters have exhibited reserved support for Democratic presidential candidates more comparable to white voters than African American voters).
180. Australia, Canada, and the United Kingdom are perhaps the best examples. See Rodney Smith, New South Wales, in Jeremy Moon and Campbell Sharman, eds, Australian Politics and Government: The Commonwealth, the States and the Territories 41, 58-59 (Cambridge 2003) (noting Australia's "long tradition of independent electoral boundary drawing");
181. John Wanna, Queensland, in Moon and Sharman, eds, Australian Politics and Government 74, 80, 96 (same);
182. John C. Courtney, Commissioned Ridings: Designing Canada's Electoral Districts 94-121 (McGill-Queen's 2001) (finding that the "overwhelming majority [of redistricting bodies in Canada] have been non-partisan in membership, empowered ⋯ to design districts as they see fit ⋯ and free of statutory or administrative constraints");
183. Ron Johnston, Charles Pattie, and David Rossiter, Electoral Distortion despite Redistricting by Independent Commissions: The British Case, 1950-2005, in Lisa Handley and Bernard Grofman, eds, Redistricting in Comparative Perspective 205, 207-08 (Oxford 2008) (discussing independent redistricting commissions in the United Kingdom).
184. See Thomas E. Mann, Redistricting Reform: What Is Desirable? Possible?, in Thomas E. Mann and Bruce E. Cain, eds, Party Lines: Competition, Partisanship, and Congressional Redistricting 92, 100-07 (Brookings 2005) (finding that independent commissions "are invested with first and final authority in congressional redistricting by six states" and discussing the structure and effectiveness of those commissions).
185. The first amendment, covering state legislative districting, passed in 2008 as Proposition 11. See James P. Sweeney, Voters Catch on to Redistricting Reform: Backers See More Competitive State Senate, Assembly Races, San Diego Union-Trib A1 (Nov 9, 2008). In 2010, two ballot propositions related to Proposition 11 qualified for the November ballot. One, Proposition 27, sought to repeal Proposition 11.
186. See California Secretary of State, Official Voter Information Guide: Prop 27, online at http://www.voterguide.sos.ca.gov/propositions/27/ (visited Dec 23, 2010) (describing the effect of the initiative as eliminating the Citizens Redistricting Commission and returning this responsibility to the legislature). The other, Proposition 20, sought to extend Proposition 11 to cover congressional redistricting.
187. See California Secretary of State, Official Voter Information Guide: Prop 20, online at http://www.voterguide.sos.ca.gov/propositions/20/ (visited Dec 23, 2010) (stating that the measure would remove authority to determine congressional districts from the legislature and place it in the hands of the Citizens Redistricting Commission).
188. Proposition 27 failed, but Proposition 20 passed. See California Secretary of State, Votes for and against November 2, 2010, Statewide Ballot Measures, online at http://www.sos.ca.gov/elections/sov/2010-general/07-for- against.pdf (visited Dec 23, 2010) (showing that Proposition 27 failed, with 40.5 percent of the vote in favor and 59.5 percent against, and showing that Proposition 20 passed, with 61.3 percent of the vote in favor and 38.7 percent against).
189. See Cox, 79 NYU L Rev at 769-70 & n 70 (cited in note 11) (arguing that a limitation on the frequency of redistricting would create a temporal veil of ignorance that could reduce partisan advantage-seeking);
190. Cox, 5 Election L J at 412 (cited in note 160) (suggesting options for redistricting reform other than transferring authority over redistricting to new institutions).