Supreme Court Should Finally Set The Record Straight On Decades Of Redistricting Debacles

The U.S. Supreme Court heard arguments last month in a case from Alabama called Merrill v. Milligan. Most people have not heard of it, but it has the potential to be the most consequential case on the redistricting requirements of the Voting Rights Act (VRA) in a decade. The court has long wrestled with and sought to clarify the VRA requirements, in the past 20 years especially, yet rulings have only further confused the issue.

Legislators and map drawers have an impossible task. They must use racial considerations (i.e. the percentage of the population that is a minority group) to draw districts when the Voting Rights Act requires it, but if they draw districts based on race when the Voting Rights Act does not require it, then they risk racially gerrymandering in violation of the 14th Amendment’s equal protection clause. That clause has been understood to protect the rights of all Americans regardless of their race or ethnicity.

Shortly after the VRA became law in 1965, the Supreme Court began contemplating what exactly it required in redistricting. It took until 1986 for the court to settle on a set of parameters mapmakers should use under what is known as Section 2 of the VRA. The opinion, in a case called Thornburg v. Gingles, ordered that majority-minority districts were required by the VRA if districts could be drawn that were reasonable, compact, and contain a sufficiently large minority population that votes as a group. The Gingles elements seemed reasonable 36 years ago, but not a single factor has a clear standard today.  

Subjective Standards

The problem with a reasonableness standard is self-evident. Whether a district is “reasonably configured” is an inherently subjective determination. A reasonably configured district to one judge could easily be seen as unreasonably configured to another.

The compactness requirement received the most attention during the Merrill arguments. Justices Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett appeared to recognize that the many different ways one can conceptualize “compactness” makes compliance difficult to measure and seemed skeptical Alabama’s congressional map was illegal. Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson strongly indicated their view that the plaintiffs met the “compactness” requirement and Alabama’s map should be replaced. This lack of agreement isn’t surprising, since the court has not set a clear, objective rule for what constitutes a compact district.

Finally, the court said in a 2019 case, Rucho v. Common Cause, that federal courts should not hear partisan gerrymandering lawsuits because the courts are not well-suited to consider the political questions these cases require. It stands to reason that the federal courts may also be ill-equipped to consider the complex political analyses necessary to determine whether a minority population votes sufficiently as a group to satisfy the Gingles criteria.  

Two Options for Clarity

The court has two real options to provide clarity to this muddled area of law and also resolve Merrill: Either establish a bright-line rule governing this type of VRA redistricting challenges or hold

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