Redistricting, Once Again, Comes to Court

We had a census. We had new districting maps. And now, like death and taxes, we have litigation. To date, redistricting-related suits have been filed in 28 states. To Justin Levitt, “[t]he sheer volume of litigation is pretty amazing.” In so doing, these legal challenges are “giving the courts, once again, a major role in drawing districts that could help determine the balance of power in Congress for the next decade.” 

Should anyone be surprised by this? 

The real question in all of this is what role the federal courts should play in this mess. The conventional wisdom ascribes to the courts the role of countermajoritarian saviors, saving the American voter from self-serving, entrenched politicians. Theories and standards abound, and come in all shapes and sizes, for how the courts should handle these questions. But this is very deceptive; easy answers are nowhere to be found. 

Here are some examples: 

What is the best way to further the political rights of Blacks and Latinos? In Texas, Republicans are accused of placing Latinos in fewer districts in order to draw as many Republican districts as possible. Conversely, in Nevada, Democrats are accused of dividing Latinos among various districts in order to strengthen Democratic districts statewide. At their root, these cases raise questions of political representation and democratic theory. These are not new questions. Short or reading Hannah Pitkin and coming to their own conclusions about the concept of representation, how should a federal judge decide these questions? 

I don’t pretend to have an answer. I also don’t think federal judges have an answer, either. 

A second example: in California, a voter-approved initiative placed an independent commission at the heart of the redistricting process. These commissions are often the darlings of reformers. So what does the example of California teach us? It appears that incumbents fared very well under the new plan, and the process also led to the creation of odd districts, two of the criticisms of the old way of doing things. Needless to say, the plan is in litigation. According to Republicans filing suit, the plan eliminates some districts in the Los Angeles area in violation of the Voting Rights Act. Reformers label the suit as a “cynical attempt to get a more favorable map.” 

But there’s the rub. These many lawsuits, all 28 of them, are similar attempts to get back to the drawing board and get a better map, or else to thrust the issue onto a federal judge, who hopefully will draw a more favorable map than the one in litigation. 

It is hard not to be cynical about the process. No question. But those who want the courts at the center of this debate bear a very high burden. Could the courts possibly make things better?