Excerpted From: Ronak Patel, Race-Conscious Independent Redistricting Commissions: Protecting Racial Minorities' Political Power Through Rules-based Map Drawing, 69 UCLA Law Review 624 (April, 2022) (298 Footnotes) (Full Document)


RonakPatelGerrymandering poses an ever-present threat to subvert American democracy. Following the enfranchisement of Black men during Reconstruction, white-dominated southern state governments, bolstered by acquiescent northern politicians, quickly utilized gerrymandering as another tool to smother any inkling of Black political power. It took nearly another century for Congress and the federal courts to curtail the most egregious forms of race-based vote denial and dilution. Those efforts radically increased the political participation and representation of Black and other minority voters in the decades that followed. The developments of the Civil Rights Era--specifically the U.S. Supreme Court's establishment of the one-person, one-vote principle and Congress's passage of the Voting Rights Act of 1965 (VRA) the United States closer to becoming a fully realized, multiracial democracy.

But these positive steps were not a panacea. The Court's current interpretation of the Equal Protection Clause of the Fourteenth Amendment illustrates the need for much more robust action. Computerized redistricting technology advancements have also enhanced politicians' ability to generate redistricting plans that benefit themselves and their co-partisans. Furthermore, the increased racial polarization of the nation's two primary political parties has allowed map drawers to use partisan advantage as a legal justification for the creation of districts that dilute minority voters' electoral power and ability to equally participate in our democracy.

A minority of states have attempted to address the issue by utilizing independent redistricting commissions (IRCs). While IRCs do take some of the politics out of redistricting, IRCs currently fail to provide adequate safeguards against racial gerrymanders because of their reliance on steadily weakening federal voting rights protections. The Court's decisions in Rucho v.CommonCause and Cooper v. Harris illustrate the need for action to not only place redistricting outside the whims of the major political parties, but also to create frameworks that normatively enforce more democratic redistricting outcomes. While Congress has attempted to act in recent years, its efforts have been unsuccessful. Further, even if current congressional proposals aimed at addressing this problem--including H.R. 1, the For the People Act, H.R. 4, the John Lewis Voting Rights Advancement Act, and S.B. 2747, the Freedom to Vote Act to become law, the proposals insufficiently protect the rights of racial minority voters against the modern mechanisms of vote dilution.

This Comment argues for the proliferation of IRCs with strong statutory race-conscious map drawing and data transparency requirements. Such requirements would not only proactively protect minority voters' electoral power against dilution, but they would also give minority voters the evidentiary record necessary to successfully challenge maps that abridge their ability to elect and influence the election of candidates of choice.

Part I of this Comment critically analyzes federal voting rights doctrine's ability to safeguard racial minorities in the redistricting process, focusing specifically on the weaknesses of the Court's one-person, one-vote principle, and the protections against racial gerrymandering offered under the VRA and the Equal Protection Clause. First, Part I highlights the inherent issues with the one-person, one-vote principle and with Census enumeration. Part I proceeds to illustrate how the VRA has been weakened in recent decades, resulting in fewer redistricting protections for racial minorities. Part I outlines current equal protection jurisprudence with respect to race in redistricting, and how such claims have become more difficult to bring successfully. Part I also identifies pain points in federal doctrine as the nation's political parties become increasingly racially polarized. Part I further highlights the precarious balance map drawers must maintain to stay in compliance with the VRA and the Constitution while protecting racial minorities' electoral power.

Part II discusses state efforts to prevent partisan gerrymandering by vesting redistricting powers in IRCs. Part II explains how currently operating IRCs function. Part II focuses on IRCs' current shortcomings given their overreliance on federal protections to protect racial minorities in the redistricting process. Part II discusses the legal challenges to the constitutionality of IRCs, and the congressional action necessary to protect them from future threat from the Court.

Part III proposes six statutory mandates that states should implement to create a race-conscious, rules-based IRC map drawing process that would proactively provide minority voters protections against dilution, and that would give them strong avenues to pursue challenges to dilutive maps. First, Part III calls on states to mandate IRCs to publish racial polarized voting analysis. Published polarized voting analysis would make IRC line drawing more cognizant of minority electoral positions, and would enhance minority voters' abilities to gather evidence to challenge dilutive maps. Second, Part III calls on states to mandate IRCs to create crossover and influence districts when legally practicable. Third, Part III proposes that legislatures require IRCs to respect the integrity of communities of interest, especially with coalition districts in which several racial minorities vote together to elect candidates of collective choice. Fourth, Part III argues for the codification of a non-retrogression principle into the IRC's map drawing mandate, which would require the IRC to explicitly provide a compelling interest for why any new map retrogresses any majority-minority, crossover, or influence district. Fifth, Part III details why IRCs must be required to implement a maximum threshold efficiency gap to ensure redistricting results in competitive maps in which minority voters can more actively contest electoral outcomes. Finally, Part III calls on legislatures to require IRCs to draw their maps as if individuals incarcerated in the state were residents of their home communities. </p

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Over the course of the last sixty years, the United States has made great strides toward the establishment of an inclusive multiracial democracy. The Voting Rights Act and the Court's one-person, one-vote principle played important parts in that process. But these federal protections have proven to be insufficient guarantors. The protections they established were not only limited but have sustained much damage in the past two decades. The Court continues its antagonism to federal voting rights enforcement, and Congress has thus far failed to strengthen voting rights protections.

It is thus imperative that states act to defend and enhance racial minorities' electoral power. State IRCs provide a template to solve racial gerrymandering and empower racial minorities. By creating IRCs with strong, statutory, race-conscious map drawing and data transparency mandates, states can proactively protect minority voters' electoral power, while also giving minority voters access to the evidentiary record necessary to successfully challenge maps. The creation of these map drawing rules will further enable racial minorities to elect and influence the election of candidates of choice. Race-conscious map drawing rules encourage the creation of redistricting plans that more accurately reflect the political will of the states' population and create better substantive representation for all Americans.

Equal Justice Works Fellow sponsored by Cooley LLP at the Asian American Legal Defense and Education Fund's Democracy Project; J.D.; David J. Epstein Program in Public Interest Law and Policy and Critical Race Theory Program, UCLA School of Law, 2022; B.A., Northwestern University, 2015.