Escaping the Goldilocks Problem: A Proposal That Would Enable States to Avoid Redistricting Litigation

Note from the Editor: 

The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. Whenever we publish an article that advocates for a particular position, as here, we offer other perspectives on the issue, including ones opposed to the position taken in the article. In this case, we are publishing a full rebuttal to the article by Kevin St. John, which you can find here. We also invite responses from our readers. To join the debate, please email us at [email protected].

For a generation, state and local governments have faced a Goldilocks problem when they redistrict. Courts require them to use race to design districts in order to comply with Section 2 of the Voting Rights Act (Section 2), but they invalidate maps under the 14th Amendment to the U.S. Constitution when racial considerations “predominated” in the drawing of districts.[1] Seemingly every approach state and local governments have taken to try to draw districts that would comply with these dueling requirements leaves them in the crosshairs of plaintiffs and the federal judiciary: ignoring race entirely,[2] following bright-line concentration rules established by Supreme Court precedents to assure protected classes’ voting power,[3] deferring to the requests presented by representatives of protected classes,[4] deferring to the decisions of nominally non-partisan redistricting panels,[5] and more. There is also an obvious disconnect between voting reformers’ complaints about our current redistricting systems and those reformers’ proposed solutions. Almost no proposal on offer would solve these problems, and almost every proposal on the table would actually make them worse. Indeed, even the remedies imposed by courts have been attacked in later litigation as violating one or both of Goldilocks’ warring demands.[6]

But there is a solution to the Goldilocks problem. State and local governments can avoid further redistricting litigation under both the Constitution and Section 2 by simply getting out of the game and drawing no districts whatsoever.

I. Overview of Existing Law

A. Section 2 of the VRA Requires the Use of Race in Redistricting

In addressing Section 2 claims, courts first establish whether plaintiffs have standing to contest the districts at issue. Members of a racial minority residing in a district where that minority has either been “packed” or “cracked” have standing to challenge their district under Section 2.[7] If standing is established, a court gauges the plaintiffs’ claims through a two-stage inquiry:[8]

1) First, it determines whether the plaintiffs have met their burden in establishing three preliminary Gingles factors:

a) their group is “sufficiently large and geographically compact to constitute a majority” in an additional single-member district;

b) the group is “politically cohesive”; and

c) the “majority votes sufficiently as a bloc to—in the absence of special circumstances . . . —usually defeat the minority’s preferred candidate”;[9]

2) Then, it analyzes whether the members of the plaintiffs’ minority group have been afforded by their enacted districts an equal opportunity to elect their preferred candidates to office.[10] To do this, courts balance a list of factors from the VRA’s legislative history that is “neither comprehensive nor exclusive[,]” along with “other factors [that] may also be relevant[.]”[11] This is often referred to as a “totality of the circumstances” analysis.

While Section 2 expressly does not create a right to proportional representation among elected officials,[12] courts gauge the equality of opportunity afforded protected classes of voters by comparing their share of the electorate to the share of elections where their preferred candidates have prevailed.[13] The case law requires states to afford minority populations proportional opportunities to elect representatives, not that they be proportionally represented among officials.

Section 2 of the VRA requires governments, where possible, to draw districts in such a way that cohesive minorities should be able to control the outcome of elections in a proportional share of districts. In Goldilocks terms, map-drawing cannot be “too cold” in its use of race.

B. The Supreme Court’s Decision in Shaw Bans the Use of Race in Redistricting

The 14th Amendment protects Americans from inten-tional racial discrimination, unless it is narrowly tailored to meet a compelling governmental interest.[14] Deliberate racial gerrymandering violates the 14th Amendment, as the Supreme Court held in Shaw v. Reno.[15] Any American living in a racially gerrymandered district has standing to challenge it,[16] and where “race was the predominant factor motivating [the] decision to place a significant number of voters within or without a particular district[,]” courts invalidate that district.[17] Courts determine actual legislative motivations by reference to “either circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose.”[18]

Where plaintiffs establish that racial concerns predominated over all others in the crafting of electoral districts, the burden shifts to the government to “demonstrate that its districting legislation is narrowly tailored to achieve a compelling state interest.”[19] That is an affirmative defense, which must be pled with proper evidentiary support to prevail.[20] Most commonly, jurisdictions assert as a defense that they used race only as required by the VRA. While the Supreme Court has never held that compliance with Section 2 is a compelling governmental interest sufficient to meet strict scrutiny,[21] it has assumed that such compliance could be sufficiently compelling. The Court said in a 2017 case that a government making that argument would need to show that it had “good reasons to believe” the use of race was required to comply with the VRA, including by demonstrating that it had “a strong basis in evidence in support of the (race-based) choice that it has made.”[22] A government must demonstrate—not simply assert—that it had a factual basis to conclude that unless it drew lines based on race, it would have been sued and would have lost.[23]

The 14th Amendment bars governments from drawing districts predominantly on the basis of race, with the possible exception of situations where the VRA requires it. In Goldilocks terms, map-drawing cannot be “too hot” in its use of race.

II. Overview of Existing Redistricting Approaches and Proposals for Reform

A. No Existing Approach Prevents Litigation or Guarantees Victory

No approach jurisdictions have taken to redistricting spares them litigation. A jurisdiction cannot safely engage in non-racial districting. Those avoiding the use of any racial data in their drawing of districts get sued for violating Section 2 of the VRA, and they lose.[24]

A jurisdiction cannot safely draw districts conscious of protected minorities by complying with the bright-line concentration rules suggested by Supreme Court Section 2 precedent. The Supreme Court may have just affirmed a ruling that Section 2 “requires the creation of a legislative district” for a cohesive group “constitut[ing] a numerical majority of the voting population in the area under consideration[,]”[25] extolling “the majority-minority rule” as “unlike any [alternative] standards” in producing “an objective, numerical test” that “provides straightforward guidance to courts and to those officials charged with drawing district lines to comply with § 2.”[26] But those following that “straightforward guidance” still get sued for violating the equal protection demands of Shaw v. Reno, and they lose.[27]

A jurisdiction cannot safely defer to the requests of a protected class’ representatives and give the group what it says it wants in a districting plan. Those adopting districts for protected classes, requested by those communities’ representatives as fair treatment of the communities get sued for violating the equal protection demands of Shaw v. Reno, and they lose.[28]

A jurisdiction’s lawmakers cannot even safely call in a designated hitter and have a nominally non-partisan panel redistrict for them.[29] Those who do so can still get sued under both Section 2 and the 14th Amendment, and they can still lose.

B. Proposed Remedies Remedy Nothing

The remedies most often proposed by voting rights activists do not address any of these concerns, or even make a fair map more likely to emerge.[30] Three of the most common proposals would utterly fail on both scores.

The most commonly proposed redistricting reform would transfer responsibility for redistricting from elected officials to appointed, ostensibly non-partisan commissions.[31] But such redistrictings are as likely to be subject to litigation as those drawn by legislatures.[32] And their usage does not address the central question of how map-making will comply with the relevant competing legal obligations; it says nothing about what data may or must be used to draw a legally acceptable map, but merely changes the officials who vote on the resulting proposals. Given that all modern legislators rely on counsel for substantive advice throughout their redistricting processes,[33] and that redistricting commissions use the same kinds of counsel for the same kinds of advice,[34] there is no obvious reason to expect that the methods or data employed would differ in any way following a shift to commissions. Nor does a move to commissions promise fairer results. California moved from legislatively crafting its maps to having them drawn by commission before 2011, and it emerged with a more aggressive gerrymander than the parties had drawn for themselves in decades.[35] Indeed, shifting decisionmaking from elected officials to appointed commissions promises no improvements, and it threatens to undermine what little transparency and political accountability are currently present in the system.

Other reformers have proposed requiring redistricters to analyze (and minimize) the “efficiency gap” in their proposed maps.[36] “Efficiency gap” analysis, which featured prominently in the Gill litigation,[37] assesses the “fairness” of a map by scoring the partisan preferences of all voters and looking to equalize the number of “wasted” votes cast for the candidates of each party, across districts. In 2018, Missouri adopted it in a constitutional amendment to attempt to address redistricting concerns.[38] But the efficiency gap does not address any issue relevant to the Gingles framework, so fully employing it likely would not reduce the chances of a court invalidating a map under Section 2. Given that our case law already recognizes that race and party often closely correlate and forbids map-drawers from making racial decisions under a thin veneer of partisan language,[39] reliance on the efficiency gap instead of directly on racial data does not promise to avoid constitutional litigation of Shaw-type claims.

Another proposal would have maps define multi-member rather than single-member districts. Under such a plan, the top several finishers in each large, multi-member district would win seats, rather than the top finisher in each small, single-member district.[40] This would allow minorities surrounded by larger communities with divergent preferences to elect representation to the extent of their share of the included, larger district. But even this more analytically rigorous proposal would not fully address the Goldilocks problem. Drawing fewer districts still involves drawing lines and deciding whom to put inside and outside of them. While scaling up and allocating proportionally within such districts may reduce the opportunities for redistricting mischief, wherever there are lines, they can be challenged. It is worth remembering that Gingles itself invalidated a multi-member district.

III. A New Solution: Abolishing Districts

While single-member districts are traditional—and there can be wisdom in sticking to tradition—the Constitution does not require them, nor is any other element of our current electoral regime legally necessary. We need not, for example:

a) award power through single-member district elections;

b) select candidates through primary and general elections; or

c) use the intermediary of single-party nominations.

A state or locality could choose a different approach on one or all of these dimensions.[41] Governments around the world—and even in one of our own states—prove the availability of alternatives. Consider two examples of approaches that differ from the American norm.

Israeli election law treats the entire country as a single electoral district in national elections.[42] Voters cast their ballots in elections to the Knesset, the national legislature, not for individual members, but for parties.[43] Israel makes it relatively easy for parties to form and participate in elections; every one of its national elections sees new parties splinter from old ones, or old parties merge into new ones.[44] Before each election, each participating party must publish its “list” of proposed representatives.[45] Once votes are tallied, seats in the resulting Knesset are awarded proportionately based on the total share of the votes received by each party (above the minimum threshold for inclusion).[46] Subject to rounding rules and minimal share provisions, a party that wins a third of the vote takes a third of the seats in the 120-member Knesset; as a result, the first 40 candidates on its published list are elected to the legislature.

New York presents another contrast to the American norm. Like most other states and jurisdictions, New York allocates seats in its state assembly to the winners of elections in single-member districts. But like Israel, New York makes it easy for parties to obtain ballot access. In 2018, New York gave eight parties automatic ballot access for their candidates: the Democratic Party, the Republican Party, the Conservative Party of New York State, the Working Families Party, the Green Party, the Libertarian Party, the Independence Party, and the Serve America Movement. Unlike most jurisdictions, New York allows different parties to nominate the same candidates for the same posts, regardless of whether those candidates are members of the nominating party or even intend to participate in its primary election. As a result, when New Yorkers vote for offices, they often see the same candidate appearing on a number of ballot lines; for example, in 2018, the Democratic, Working Families, and Independence Parties nominated the same candidate for the governorship, as did the Conservative and Republican Parties. In any given race, the votes cast for any nominee are summed—a vote for Andrew Cuomo is a vote for Andrew Cuomo, regardless of which party the voter chose—and the candidate with the most votes is elected.

A state or locality could adopt a merged version of these two regimes. Texas, for example, has been tied up in litigation over its various legislative maps for at least twelve of the last seventeen years. Texas could ease its rules concerning ballot access, allowing voters to cast their votes for governor and other state-wide offices as New York does; this would mean individuals could vote for Greg Abbott as the candidate of the Republican Party, or as the candidate of hypothetical alternative parties like Empower Texas, Texas Right to Life, and the Liberty Caucus. But Texas could simultaneously adopt the Israeli approach to allocating seats in its state legislature proportionately, rather than by district, thereby allowing every community (however defined) to elect its proportional share of the legislature. Seats could be awarded, as in Israel, in order of precedence on party lists, beginning with the party receiving the most votes.

The resulting elections would have no districts and no opportunities for gaming of district lines. The state’s role in allocating power would be entirely removed, shifting the onus for such decisions entirely to the electorate and the organizational capacities of candidates and parties. Imagine a community dispersed across the state, which included 10,000 West Texans in Lubbock who share political preferences with 10,000 South Texans in McAllen and 10,000 East Texans in Lufkin. Assuming easy ballot access for parties allows them to organize their own party, that community would win exactly the same representation as a community of 30,000 people in Houston. As long as the state’s ballot-access rules are sufficiently loose to allow such a group to gain access to the ballot as a new party (to the extent members feel that other parties have not given them an adequate chance of electing their preferred candidates), the group’s ability to elect its preferred candidates would be determined entirely by the number of votes in its camp, without regard to the presence or antipathy of any surrounding local majorities or to any choice by the state as to whether members of the group have enough in common to allow their coordinated action.

IV. The Proposed System Would Be Immune from Legal Challenge

A. No Section 2 Challenge Could Survive a Motion to Dismiss

This system would not be subject to attack under Section 2. Gingles’ second and third preliminary factors would be rendered impossible to prove, since it would be impossible for a local majority to block any local minority’s ability to elect its preferred candidate. As these are threshold requirements for a successful Section 2 suit, the impossibility of satisfying them guarantees that no action brought could survive a motion to dismiss.

Still, it is worth noting that this system would also preclude a finding at Gingles’ totality of the circumstances stage that any redistricting decision of any government leaves “the political processes leading to nomination or election in the State or political subdivision . . . not equally open to participation by members of” any community “in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”[47] This would be so both because there would be no state action to challenge as potentially dilutive, and because, even if there were, where every community receives proportional representation, no community could claim to have been denied the same opportunity to elect its candidates afforded any other.

B. No 14th Amendment Challenge Would Succeed

Similarly, if jurisdictions draw no districts, race can never be held to predominate in the drawing of districts. In the absence of any allocative decision in which to include racial considerations, there would be no decision to even hypothetically analyze under strict scrutiny. No plaintiff could bring any 14th Amendment challenge that could survive the motion to dismiss phase of litigation.

V. Conclusion

Whether directly, through appeals to fairness, or indirectly, through Gingles’ totality of the circumstances test, most people gauge whether an election is producing fair results by considering whether it has enabled groups to elect officials in numbers roughly proportionate to their share of the electorate. Proportional representation directly addresses these concerns. Common proposals like map-drawing commissions do not address them at all. If those campaigning for electoral reform really want to avoid litigation and obtain fairer results, they will shift gears and pursue an alternative to single-member districting schemes.