Excerpted From: Stephen Menendian, Race and Politics: The Problem of Entanglement in Gerrymandering Cases, 96 Southern California Law Review 301 (December 2022) (211 Footnotes) (Full Document)


StephenMenendian.jpegThe manipulation of political districting processes for political advantage--popularly known as gerrymandering--has long bedeviled the United States, but concerns about the abuse of this practice have intensified in recent decades due to a confluence of factors: intensifying partisan political polarization, widening racial political polarization, the use of detailed voter files to predict voting behavior, the emergence of sophisticated computer technology to generate ever-more precise political maps, and a sharp divergence in the Supreme Court's jurisprudence governing different forms of this practice.

In reviewing suits brought to challenge gerrymandering practices, the Supreme Court has held that state legislative efforts to draw political districts based on race violate the Equal Protection Clause, a natural extension of the Court's general prohibition on the use of racial classifications in policymaking. On the other hand, the Supreme Court has held that legislative efforts to draw political districts based upon partisanship or for partisan political advantage are “political questions” and non-justiciable.

In this regard, these two forms of gerrymandering are treated in the utmost extreme: racial gerrymandering is subject to the highest level of judicial scrutiny while partisan political gerrymandering is treated as non-justiciable, meaning not that it is subject to the lowest level of judicial review, rational basis review, but that the practice is deemed unsuitable for judicial review at all. Racial gerrymanders are subject to strict scrutiny judicial review whereas partisan political gerrymanders are not subject to judicial review whatsoever.

The Supreme Court's broader equal protection clause jurisprudence supplies a basis for treating these two types of claims differently. Prevailing equal protection jurisprudence treats race as a “suspect” class in government policymaking subject to strict scrutiny review, while most other classifications are reviewed under a rational basis test. But strict adherence to this approach would compel a very different result than the determination that partisan gerrymanders are non-justiciable. Lower courts would still be able to entertain such cases, just under a much lower level of review, rational basis.

If there were no relationship between race and partisanship in voting patterns, then political gerrymanders and racial gerrymanders could be regarded as separate and distinct categories and there would be no logical inconsistency in a jurisprudence that regulated one but not the other. Partisan gerrymanders would have no observable racial effect, or vice versa. In practice, however, race has long been highly correlated with partisan political affiliation. Although racial political polarization waxes and wanes over time, it is strong enough that a jurisprudence of gerrymandering cannot neatly divide the two types.

The Court's racial gerrymandering jurisprudence makes clear that sorting voters into separate political districts on the basis of race is unconstitutional, just as it is presumptively unconstitutional to sort pupils into different schools on the basis of race. In racially diverse states with racially polarized voting patterns and merely modest levels of racial residential segregation, however, it is likely that partisan gerrymandering will effectively sort people into different districts on a racial basis. In much of the country, race and partisanship are entangled, such that redistricting efforts on one basis are largely indistinguishable from the other. As a consequence, unregulated partisan gerrymanders have a dangerous potential to subvert the constitutional rule against racial gerrymandering.

Although political scientists have long recognized the correlation of race and partisan affiliation (what political scientists term “conjoined polarization”), prior analysis of gerrymandering jurisprudence has underexamined the specific role of racial residential segregation in facilitating the entanglement of race and politics in redistricting processes. In recent legal scholarship analyzing this problem, segregation is either completely absent from the discussion, mentioned in passing, or is treated as an assumed operative background condition. The role of segregation in relation to gerrymandering processes is both more central and more dynamic than is generally appreciated.

This Article argues that it is the interaction of racial residential segregation and racial political polarization that creates the entanglement problem in redistricting processes, not merely “conjoined polarization” by itself. Where the level of racial residential segregation is higher, the entanglement of race and politics in districting processes is likely to be greater, not only because of the geographic concentrations of people that facilitate political district line-drawing, but also because regions with higher levels of racial residential segregation have both greater racial political polarization and partisan political polarization.

This Article presents original analysis of the 2020 presidential election results and 2020 census data to demonstrate that racial segregation and partisan segregation are strongly correlated. Moreover, regions with higher levels of racial residential segregation appear to have higher levels of partisan polarization. As a result, partisan gerrymanders in those regions are likely to result in the segregation of voters into different political districts on the basis of race and vice versa.

Part I provides a brief history of gerrymandering, including the types and forms of political districts that were historically practiced. Political districts were far more varied in the early years of the republic than is generally appreciated or understood today. More importantly, Part II notes that although gerrymandering practice can be traced to the early decades of the republic, efforts to curb it also extend back into the nineteenth century. Standards and norms for democratic practice have improved and evolved since the framing of the Constitution, laying the groundwork for particularized claims brought to challenge this practice.

Part II compares racial gerrymandering and partisan political gerrymandering cases, rulings, and reasoning. It analyzes points of divergence and convergence between the two lines of cases. The partisan and racial gerrymandering cases germinate from the same seed and the same soil but have produced extremely divergent results in the body of the Supreme Court's precedent governing these cases. This creates a problem in cases brought that challenge redistricting where race and partisan affiliation are largely co-extensive. In such cases, racial gerrymandering could escape judicial scrutiny under the cover of partisanship.

Part III explicates the entanglement problem, that purely partisan redistricting maps are in many cases objectively indistinguishable from redistricting maps that explicitly use race. The key components of this problem are racial political polarization and racial residential segregation. When these factors coincide, partisan gerrymandering is likely to sort people into different districts on a racial basis. Part III also shows that racial residential segregation plays a larger role than is generally appreciated in both racial and partisan gerrymandering processes. It presents original and other recent empirical research suggesting that regions with higher levels of racial residential segregation have both more racial political polarization and political segregation.

Part IV reviews three possible ways to address the entanglement problem in terms of current constitutional law and text, weighing the merits of each. First, any hybrid gerrymandering case in which race appears to play a significant role but is co-extensive with partisanship could be categorically exempted from judicial review if the state raises such a defense. This approach is not a functional solution because it would formalize a loophole for subverting the Constitution as long as racial gerrymanders are clothed in the guise of partisanship.

Second, any case where race and partisanship are co-extensive could instead be drawn within the racial gerrymandering line and held to strict scrutiny review, even though race cannot be said to “predominate.” This approach would better align with the Court's broader anti-classification jurisprudence but would require adjustments to the standards applicable to racial gerrymandering cases.

Finally, the Court could reverse its judgment that partisan gerrymanders are non-justiciable. The Court only recently gathered a majority of Justices in support of that view. It could reverse course and direct lower courts to review such claims under a lower standard of review within the equal protection jurisprudence or some other constitutional provision or basis altogether. In this regard, Part IV makes the case for revisiting the Court's Guarantee Clause jurisprudence based upon principles and concerns articulated by the framers of the Constitution.

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Unlike the canonical and venerated document that it is regarded as today, the United States Constitution was recognized by its framers as a political experiment of uncertain prospects. To give the political community governed by it the flexibility to make it work in practice and tailor it to exigencies without violating its text or spirit, the framers provided an amendment process to correct for unforeseen flaws or circumstances and used terse, open-textured language amenable to varying shades of interpretations in enumerating certain powers, rights, or prohibitions.

Nonetheless, the Constitution was chiefly designed to overcome the deficiencies of the Articles of Confederation and other problems that had plagued the young republic. Consequently, it is silent on many issues that subsequently bedeviled the nation governed by it in intervening centuries. Two notable examples that frustrated subsequent generations in the first half of the nineteenth century were the definition of national citizenship and its relationship to state citizenship, and in the latter half of the twentieth century and early twenty-first century, the issue of abortion.

Because the original Constitution did not explicitly indicate how federal citizenship was defined or acquired, the Supreme Court ultimately decided the question of whether persons of African descent were or could become United States citizens, which it did in the most notorious case of Dred Scott v. Sandford. The Court's decision was reversed by opening line of the Fourteenth Amendment. Similarly, the issue of abortion has proven to be highly divisive and one of the most deeply contested legal matters of the last fifty years. Advocates and jurists often look beyond the explicit text to the structure of the Constitution and the history and traditions of the republic at certain points in time to try to resolve these matters.

Unfortunately, extreme manipulation of political districting processes is another issue upon which the Constitution remains explicitly silent. This does not mean federal officials are powerless to address it. Constitutional text provides indirect solutions, such as the affirmative powers afforded Congress under the Elections Clause to “make or alter” the laws for elections to the federal legislature and implicit protections made by inferences drawn from other provisions, such as the Equal Protection Clause. Nonetheless, as a result of the lack of constitutional specificity regarding this issue, certain problems generated by this underlying phenomenon are treated differently, depending on the circumstances, the class of persons most affected, or the form of the districting problem.

This Article focuses on the problem of the entanglement of race and partisanship in the judicial review of gerrymandering claims. It conducts a brief history of gerrymandering, examines the divergent lines of cases, reveals the factors that contribute to the growing problem of gerrymandering, including the relationship between political segregation and racial residential segregation, and closes with a survey of possible solutions grounded in the constitutional text and structure.

Although Congress could potentially pass laws curbing gerrymandering in the states, and would have the authority to do so under Article I, Section 4, the core of the problem of gerrymandering is that it violates what Madison called the “fundamental principle of free government”--that of majority rule, and therefore should be within the cognizance of the Constitution, not ordinary legislation, to resolve. This is true even though the Constitution is silent on it, an omission that is adequately compensated for by the applicability of indirect provisions that the framers included such as the Guarantee Clause and subsequent Amendments, most notably the Fourteenth, requiring equal protection of the law.

Blame for underestimating the rise of political parties and the harmful effects of extreme partisanship cannot be entirely placed on insufficient foresight of the framers. A number of developments have contributed to the intensity of political partisanship in the federal government, including the enlargement of the sphere of national politics, the evolution of the information and media environment, and technological developments.

There is no way that the framers could have fully anticipated the extremities toward which political districting processes designed for partisan purposes might distort many of the principles of representative government that they sought to institutionalize. In particular, they could not have anticipated the development of modern technological tools such as computer databases and programs such as Geographic Information System (“GIS”) technology that would easily permit state legislators to essentially select their voters rather than the other way around. But the framers' insufficient foresight does not leave us helpless.

Whether the remedy lies in an act of Congress or the courts applying a synthetic reading of the Constitution as a whole, Carolene Products footnote four, the Guarantee Clause, or a novel reading of the Equal Protection Clause, partisan gerrymandering is a problem for our health of democracy that requires resolution. It is a problem in its own right because it undermines the values and foundation of the republic, and because it causes and results in the racial segregation of voters in clear violation of the Constitution without necessarily running afoul of the standards established by the Supreme Court to secure those protections.

Stephen Menendian is the Assistant Director at the Othering and Belonging Institute at University of California, Berkeley.