Trial Magazine

The conservative position prevailed in almost every U.S. Supreme Court decision in the October 2017 Term, and voting rights cases were no exception. Opinions in three major voting cases concerned partisan gerrymandering, racial gerrymandering and discrimination, and purging voter rolls. These decisions reflect a Court that defers greatly to states’ choices with regard to voting, including when those choices have discriminatory effects against minority voters. This will matter in voting rights litigation and in the outcome of elections.

Gill v. Whitford

Plaintiffs filed a 42 U.S.C. §1983 action alleging that the Wisconsin legislature engaged in unconstitutional partisan gerrymandering, a practice in which the political party that controls the ­legis­lature draws districts to maximize safe seats for that party.¹ Plaintiffs claimed that the legislature “cracked” and “packed” Democratic voters throughout the state. “Cracking means dividing a party’s supporters among multiple districts so that they fall short of a majority in each one. Packing means concentrating one party’s backers in a few districts that they win by ­overwhelming margins.”²

Regardless of whether they lived in a cracked or packed district, the plaintiffs alleged that they have been “‘harmed by the manipulation of district boundaries’ because Democrats ­statewide ‘do not have the same opportunity provided to Republicans to elect representatives of their choice to the Assembly.’”³

A federal district court ruled 2-1 in their favor, focusing on a so-called “efficiency gap”—the difference between the votes a party received and the seats that it ended up with in the legislature.⁴ The court concluded that this disparity in Wisconsin was great and thus held that the gerrymandering violated the equal protection clause of the Fourteenth Amendment.⁵

The Supreme Court granted review on the questions of whether federal courts may hear challenges to partisan gerrymandering and, if so, when gerrymandering violates the U.S. Constitution. However, the Court did not decide those issues, focusing instead on whether the plaintiffs had standing to sue.

Chief Justice John Roberts, writing for a unanimous Court, concluded that the plaintiffs lacked standing because they needed to prove that they lived in districts subject to partisan gerrymandering.⁶ Although the plaintiffs alleged this in their complaint, standing requires proof at trial through a showing that a plaintiff has been personally harmed—which is a district-specific injury.⁷

Otherwise, a plaintiff is “assert[ing] only a generalized grievance against governmental conduct of which he or she does not approve.”⁸ Since the case involved a claim that is “unsettled” and “unresolved” by the Court, it remanded “so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence . . . that would tend to demonstrate a burden on their individual votes.”⁹

Justice Elena Kagan wrote a concurring opinion joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor that condemned partisan gerrymandering as “incompatible with democratic principles.”¹⁰ Because gerrymandering benefits those who control the political branches of government, she explained, only the courts can remedy the problem.

Justice Kagan agreed that to prevail on remand, a plaintiff must allege that he or she resides in a district that has been cracked or packed.¹¹ But she also noted that partisan gerrymandering infringes on First Amendment rights of association held by political parties, other political organizations, and their members.¹² This injury is distinct from vote dilution, and the standing inquiry would be different because the alleged injury is based on statewide partisan gerrymandering and would not require that the plaintiff live in a cracked or packed district. By encouraging the plaintiffs to focus on this association theory, Kagan may have been offering the plaintiffs a roadmap for how to present a partisan gerrymandering challenge that will have the best chance of succeeding in the Court.

This position has four votes on the current Court, but the key question is whether it will pick up a fifth vote. Without Justice Anthony Kennedy, that possibility seems more remote. Regardless, the issue is sure to come back to the Court in the future. In another gerrymandering case, Benisek v. Lamone, the Court again did not reach the merits of whether partisan gerrymandering violated the Constitution.¹³

Abbott v. Perez

The second case concerned the use of race in drawing election districts and whether that violates §2 of the Voting Rights Act of 1965 or the Fourteenth Amendment’s equal protection clause.¹⁴ Regarding a challenge to districting in Texas, the Western District of Texas found that four districts created in 2013 violated the Voting Rights Act and the Constitution.¹⁵ The district court pointed to the discriminatory intent allegedly harbored by the state’s legislature in 2011 for a previous redistricting attempt. The court attributed this same intent to the 2013 legislature because it had failed to “engage in a deliberative process to ensure that the 2013 plans cured any taint from the 2011 plans.”¹⁶ On review, the Supreme Court primarily considered whether the district court erred in requiring the state to demonstrate that it had “somehow purged the ‘taint.’”¹⁷

The Court ruled 5-4 that except for one district, there was no violation of the Voting Rights Act or the Constitution.¹⁸ The majority stressed that the burden of proof is on the plaintiff and that “the presumption of legislative good faith [is] not changed by a finding of prior discrimination.”¹⁹ The Court concluded that the district court disregarded the presumption of legislative good faith and improperly shifted the burden of proof. While the discriminatory intent of the 2011 legislature is relevant, that must be weighed together with any other direct and circumstantial evidence of the 2013 legislature’s intent—for example, that it enacted interim redistricting plans that it believed would pass muster because of a lower court’s role in developing them. The Court said that when all the relevant evidence in the record was considered, “it is plainly insufficient to prove that the 2013 [l]egislature acted in bad faith and engaged in intentional discrimination.”²⁰

As to the Voting Rights Act violation, the Court used the test from Thornburg v. Gingles that a plaintiff must establish “a geo­graphically compact minority population sufficient to constitute a majority in a ­single-member district, political cohesion among the members of the minority group, and bloc voting by the majority [group] to defeat the minority’s preferred candidate.”²¹ Then, a plaintiff must prove through a totality of the circumstances that the district lines dilute the votes of the minority group’s members.²² The Court found that the plaintiffs failed to meet these requirements, but that one district involved impermissible racial gerrymandering because it was drawn with the predominant motive of creating a majority-Latino district.

In the dissent, Justice Sotomayor said that the decision leaves minority voters in Texas “underrepresented in the political process.”²³ “The Court today does great damage to [the] right of equal opportunity. Not because it denies the existence of that right, but because it refuses its enforcement,” she concluded.²⁴

Husted v.  A. Philip Randolph Institute

Unlike the other two cases, this decision involves whether a state voter law violates two federal statutes—the National Voter Registration Act (NVRA) and the Help America Vote Act.²⁵ Pursuant to Ohio law, the state sends notices to registrants who have “not engage[d] in any voter activity for a period of two consecutive years” as part of its process for removing from the rolls voters who have moved out of the voting district in which they are registered.²⁶ “Voter activity” includes “casting a ballot” in any type of election at any level, but it also includes such things as “sign[ing] a petition,” “filing a voter registration form, and updating a voting address with a variety of [state] entities.”²⁷ After sending these notices, Ohio removes registrants from the voter rolls if they “fai[l] to respond” and “continu[e] to be inactive for an additional period of four consecutive years, including two federal general elections.”²⁸

The NVRA, however, provides that a state may not remove a voter on  change-of-residence grounds unless the registrant either confirms in writing that he or she has moved or fails to return a preaddressed, postage prepaid “return card” containing statutorily prescribed content and then fails to vote in any ­election during the period covering the next two federal general elections.²⁹ The act also prohibits states from removing a voter’s name solely “by reason of failure to vote.”³⁰

The Court concluded, 5-4 again, that Ohio’s process does not violate the failure-to-vote clause or any other part of the NVRA.³¹ Ohio’s removal process follows the law to the letter: It does not remove a registrant on ­change-of-residence grounds unless the registrant is sent and fails to mail back a return card and then fails to vote for an additional four years.

Violating the NVRA requires “sole causation”—that the only reason a person is removed is failure to vote, which was not the case here because voters were removed both for failure to vote and for failure to return the card. The plaintiffs argued that a voter’s failure to return a card was not an adequate measure of whether that person has moved because many people receive the cards but discard them or forget to return them. The Court disagreed, explaining that it is irrelevant whether people actually return the cards; Congress thought this was a meaningful way of ascertaining continuing residence, and this method was consistent with the NVRA.

In her dissent, however, Justice Sotomayor focused on the history of disenfranchising minority voters by purging voter rolls and on how the majority opinion ignored the NVRA’s intent “and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.”³²

These three cases together give states much more latitude regarding voting rights, and with Justice Kennedy’s replacement likely to be a more conservative justice, similar results in voting cases are probable for a long time to come. This will make it much harder for civil rights plaintiffs in voting cases and will affect voting access in future elections.

Erwin Chemerinsky is dean and Jesse H. Choper Distinguished Professor of Law at University of California, Berkeley, School of Law. He can be reached at echemerinsky@law.berkeley.edu.

Notes

1. Gill v. Whitford, 138 S. Ct. 1916 (2018).
2. Id. at 1924. “In 2012, Republicans won 60 [out of 99 Wisconsin] Assembly seats with 48.6 percent of the two-party statewide vote for Assembly candidates. In 2014, Republicans won 63 Assembly seats with 52 percent of the statewide vote.” Id. at 1923.
3. Id. at 1924.
4. Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016).
5. Id. at 911–12.
6. Gill, 138 S. Ct. at 1929–31.
7. Id. at 1923, 1931. The Court pointed to its prior decisions that held that plaintiffs who allege a violation of their rights from racial gerrymandering have standing only when their own district has been gerrymandered. Id. at 1930.
8. Id.
9. Id. at 1934.
10. Id. at 1934–35. (Kagan, J., with Ginsburg, Breyer, and Sotomayor, JJ., concurring).
11. Id.
12. Id. at 1938–40.
13. 138 S. Ct. 1942 (2018).
14. Abbott v. Perez, 138 S. Ct. 2305 (2018).
15. Perez v. Abbott, 274 F. Supp. 3d 624 (W.D. Tex. 2017).
16. Id. at 649.
17. Abbott, 138 S. Ct. at 2324.
18. Id. at 2314. It also noted that a tension exists between the two: The Constitution says that race cannot be a predominant factor in districting unless the government meets strict scrutiny. But if the government draws election districts in a way that disadvantages minorities, it violates §2 of the Voting Rights Act, which means the government often must consider the racial effects of its districting. Id. at 2314–15.
19. Id. at 2311.
20. Id. at 2327.
21. 478 U.S. 30 (1986); id. at 2330–31.
22. Id. at 2331.
23. Id. at 2336. (Sotomayor, J., with Ginsburg, Breyer, and Sotomayor, JJ. dissenting).
24. Id. at 2360. 
25. Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018).
26. Id. at 1840.
27. Id. at 1840–41.
28. Id. at 1841; see also Ohio Rev. Code Ann. §3503.21(B)(2).
29. 2 U.S.C. §20507(d) (West 2018); 52 U.S.C. §20507(b)(2) (West 2018). The NVRA was amended by the Help America Vote Act in 2002 and specifies that “nothing in [this prohibition] may be construed to prohibit a State from using the procedures” of sending a return card and removing registrants who fail to return the card and fail to vote during the requisite time. Husted, 138 S. Ct. 1857.  
30. 2 U.S.C. §21083(a)(4)(A) (2002).
31. Husted, 138 S. Ct. at 1846.
32. Id. at 1865. (Sotomayor, J., dissenting).