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Excerpted from: L. Darnell Weeden, Equal Voting Rights Require Removing Race and Partisan Discrimination from Elections and Legislative Gerrymandering, 79 Louisiana Law Review 781 (Spring, 2019) (197 Footnotes) (Full Document)

A gerrymander represents a distortion of legislative district boundaries and populations because of partisan politics or separate specific motives. Partisan political gerrymandering is expanding because discretionary redistricting provides an opportunity for one political party to give itself advantage over another political party Those involved in legislative redistricting typically implement two techniques to create a partisan gerrymander: “packing” and “cracking.” The packing strategy “packs” the opposing party's supporters into a comparatively small number of districts to help the opposing party win big majorities in a small number of districts but lose a large majority of the districts. “Cracking” cracks or rips the opposing party's voters so badly that it virtually guarantees the opposing party voters, although large in number, are an unsuccessful minority party in all of the targeted districts.

Partisan gerrymandering is particularly harmful for at least two primary grounds. First, a partisan gerrymander is likely to permit a political party possessing a minority of the popular vote to take command over a majority of the seats in the state assembly, as well as its state's representatives in the House of Representatives. Second, a partisan gerrymander is likely to permit “a party that possess only a slim majority in popular vote over its main political challenger ... to convert this slim popular vote advantage into a tactical established ascendency.” Whether a gerrymander establishes a majority party or disproportionately expands the majority's power when compared to the votes actually received, a gerrymander unfairly risks establishing a partisan imbalance so expertly that the legislature becomes indifferent to the desires of a changing voting demographic. According to Bryan Sells, a civil rights lawyer in Atlanta, America is in a new moment because this nation is “reevaluating the value of the right to vote and of unrigged systems. It's not because the system was less rigged before. People are just caring about it more in the last five years.” The U.S. Supreme Court should hold that a state may not target African-American voters in the election process for either racial or partisan reasons.

In today's politics, race and partisan political identity have evolved into one. This nation has witnessed a 21st-century explosion of election-related targeting laws Republican-controlled legislatures adopted over the opposition of both Democrats and civil rights supporters. Examples of election-related targeting laws contested along partisan and racial lines include a litany of Republican-sponsored voting restrictions, such as strict voter ID laws, voter registration and early voting restraints, and the treatment of provisional ballots. Democrats and civil rights groups attack these Republican-sponsored restrictions because they unjustifiably suppress involvement in the election process by a number of eligible racial minority voters who usually support Democrats. Civil rights activists correctly contend these 21st-century burdens on the right to vote effectively deny racial minorities the right to vote by diluting their roles in the electoral process. “Vote dilution” in the context of racial politics is more than an absence of proportional representation; it does not occur when elected officials fail to mirror on a proportional basis a racial group's voting potential ability. Plaintiffs in a voter dilution case must demonstrate under the totality of the circumstances standard that the political processes involving the nomination and election were not equally accessible to minority group involvement, attacking the process. A minority group is required to show that its members do not have the same opportunity as other groups to contribute to the political process and to elect their preferred officials.

Although Republicans implemented their vote-denial policies against racial minorities, they also used their control over redistricting by gerrymandering both the U.S. House of Representatives and state legislative districts. Gerrymandering allows the controlling political party to entrench itself in power by diluting votes cast for a rival party. example, a simple Republican gerrymandering strategy is to pack Democrats into a small number of districts to create safe Republican majorities but simultaneously pack African Americans--who, as a collective, consistently vote for Democrats--inside a small number of districts which produces a promising election map for Republicans. Racial-political polarization helps to explain why Republican-dominated legislatures have racially gerrymandered Congressional and state legislative districts to implement majority-minority districts and effectively “dilute” the political impact of minority votes. Racial gerrymandering is extremely challenging since it dilutes the votes of racial minorities under contemporary America's single electoral practice for casting ballots for legislators. African-Americans and Hispanics disproportionately reside in geographically condensed inner cities without a proportional representation model, racial, minority vote-dilution will continue to exist as an inherent feature of American democracy. Since 2016, several federal courts have issued decisions finding that states and localities practiced intentional discrimination in framing their voting and election laws. Intentional discrimination assertions in the setting of voting rights litigation virtually always generate the issue of disentangling race from party. Race and partisan connection are repeatedly linked in modern politics, especially in the South. When race and partisanship align, the usual state politician defense is that the legislators are implementing their plans for predominantly partisan purposes with only incidental race-based motives. of the strong link between partisan politics and race-based politics, the Supreme Court has held that to succeed in a racial gerrymandering case in which race and party truly correlate, the plaintiffs must demonstrate that race, not partisan politics, was the predominant motive. should reject partisan motives as a proxy defense for targeting African-Americans, as well as other minority voters, to create marginalization in the political process.

Racial targeting to marginalize voters is intentional discrimination even if that marginalization was driven primarily by a political scheme and not racial hostility. The Fourth Circuit asserted: “Using race as a proxy for party may be an effective way to win an election. But intentionally targeting a particular race's access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose.”

Since the partisan gerrymandering evolution is virtually indistinguishable from racial gerrymandering, the Supreme Court should put an end to them both to breathe new life into the equal protection concept and promote electoral democracy in America.

Associate Dean for Faculty Development and Research, Roberson King Professor, Thurgood Marshall School of Law, Texas Southern University; B.A., J.D., University of Mississippi.