Congressional Redistricting: Legal and Constitutional Issues
Congressional research reportApr 14, 2016
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Congressional Redistricting:
Legal and Constitutional Issues
L. Paige Whitaker
Legislative Attorney
Updated April 14, 2016
Congressional Research Service
7-....
www.crs.gov
R44199
Congressional Redistricting: Legal and Constitutional Issues
Summary
Congressional redistricting is the drawing of district boundaries from which the people choose
their representatives to the U.S. House of Representatives. The legal framework for congressional
redistricting resides at the intersection of the Constitution’s limits and powers, requirements
prescribed under federal law, and the various processes imposed by the states. Prior to the 1960s,
court challenges to redistricting plans were considered non-justiciable political questions that
were most appropriately addressed by the political branches of government, not the judiciary. In
1962, in the landmark ruling of Baker v. Carr, the Supreme Court pivoted and held that a
constitutional challenge to a redistricting plan was not a political question and was justiciable.
Since then, a series of constitutional and legal challenges have significantly shaped how
congressional districts are drawn.
Key Takeaways from This Report
The Constitution requires that each congressional district contain approximately
the same population. This equality standard was set forth by the Supreme Court
in a series of cases articulating the principle of “one person, one vote.” In order
to comport with the equality standard, at least every 10 years, in response to
changes in the number of Representatives or shifts in population, most states are
required to draw new congressional district boundaries.
Congressional districts are also required to comply with Section 2 of the Voting
Rights Act (VRA), prohibiting any voting qualification or practice—including
congressional redistricting plans—that results in the denial or abridgement of the
right to vote based on race, color, or membership in a language minority.
Under certain circumstances, the VRA may require the creation of one or more
“majority-minority” districts, in which a racial or language minority group
comprises a voting majority. However, if race is the predominant factor in the
drawing of district lines, then a “strict scrutiny” standard of review applies. In
2015, in Alabama Legislative Black Caucus v. Alabama, the Supreme Court set
forth standards for determining whether race is a predominant factor in creating a
redistricting map when considering a Fourteenth Amendment equal protection
claim.
Alabama also held that the inoperable preclearance requirement in Section 5 of
the VRA does not require that a new redistricting plan maintain the same
percentage of minority voters in a majority-minority district. Instead, the Court
held that Section 5 requires that the plan maintain a minority’s ability to elect
candidates of choice.
Last year, in Arizona State Legislature v. Arizona Independent Redistricting
Commission, the Court held that states can establish independent commissions,
by ballot initiative, to conduct congressional redistricting.
In April 2016, in Evenwel v. Abbott, the Court held that states may draw their
legislative districts based on total population rather than based on eligible or
registered voters.
As of the date of this report, two redistricting cases are pending before the
Supreme Court: Harris v. Arizona Independent Redistricting Commission,
regarding whether partisanship can justify differences in population; and Wittman
v. Personhuballah, regarding what challengers must demonstrate in proving that
race was a predominant factor in the creation of a redistricting plan.
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Congressional Redistricting: Legal and Constitutional Issues
Contents
Constitutional and Statutory Requirements ..................................................................................... 2
Legal Issues ..................................................................................................................................... 4
How Close to Exact Equality? .................................................................................................. 4
Can Partisanship Justify Differences in Population? ................................................................ 5
Who Is Counted: Total Population or Eligible Voters? ............................................................. 6
When Is a “Majority-Minority” District Required? .................................................................. 7
What Are the Limits Under the Fourteenth Amendment Equal Protection Clause? ................. 9
Who Is Authorized to Draw and Implement a Redistricting Plan? ......................................... 12
Selected Legislation in the 114th Congress .................................................................................... 14
Conclusion ..................................................................................................................................... 15
Contacts
Author Contact Information .......................................................................................................... 15
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Congressional Redistricting: Legal and Constitutional Issues
uring the New York debates ratifying the U.S. Constitution, Alexander Hamilton
commented that “the true principle of a republic is, that the people should choose whom
they please to govern them.” 1 This principle is embodied in congressional redistricting,
the drawing of district boundaries from which the people choose their representatives to the U.S.
House of Representatives.2
D
Prior to the 1960s, court challenges to redistricting plans were considered non-justiciable political
questions that were most appropriately addressed by the political branches of government, not the
judiciary. In 1962, in the landmark ruling of Baker v. Carr,3 the Supreme Court pivoted and held
that a constitutional challenge to a redistricting plan was not a political question and was
justiciable. Since then, a series of constitutional and legal challenges have significantly shaped
how congressional districts are drawn. Furthermore, recent and pending Supreme Court cases will
likely continue to impact the process of congressional redistricting, and the degree to which
challenges to redistricting plans will be successful. For example, the Supreme Court recently
clarified how a court should evaluate whether race was a predominant factor in the development
of a redistricting plan when considering a Fourteenth Amendment equal protection claim.4 It also
recently upheld, under the Elections Clause, an Arizona constitutional provision, enacted by
initiative, which established an independent commission for drawing congressional districts.5
During the 2015 Supreme Court term, the Court is continuing to focus on redistricting. In April
2016, the Court ruled that states may draw their legislative districts based on total population
rather than based on eligible or registered voters. In addition, as of the date of this report, two
redistricting cases are currently pending before the Court: one case presents the question of
whether partisanship can justify differences in population in the context of state legislative
redistricting; 6 another case presents the question of whether, in proving that race was a
predominant factor in the creation of a redistricting plan, challengers must demonstrate that
considerations of race predominated over politics.7
This report first examines key constitutional and federal statutory requirements applicable to
congressional redistricting, including the standard for equality of population among districts, and
the Voting Rights Act (VRA). It then analyzes case law interpreting the constitutional requirement
of congressional district equality—the “one person, one vote” standard—including the degree to
which districts must be drawn to achieve exact population equality. It also explores the unsettled
question of whether partisanship can justify differences in population, which the Supreme Court
is considering in the pending case of Harris v. Arizona Independent Redistricting Commission.
Then, it discusses the question of who should be counted for the purposes of achieving equality
among districts, focusing on the Court’s recent ruling in Evenwel v. Abbott. Next, it examines the
application of Section 2 of the VRA to congressional redistricting, and relatedly, limits to VRA
compliance under the Fourteenth Amendment. This section includes discussion of a pending
Supreme Court case, Wittman v. Personhuballah, regarding what challengers must demonstrate in
proving that race was a predominant factor in the creation of a redistricting plan. Case law in this
1 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876).
2 For discussion of the processes of congressional apportionment and redistricting, see CRS Report R41357, The U.S.
House of Representatives Apportionment Formula in Theory and Practice, by Royce Crocker, and CRS Report
R42831, Congressional Redistricting: An Overview, by Royce Crocker.
3 369 U.S. 186 (1962).
4 See Ala. Black Caucus v. Alabama, 135 S.Ct. 1257 (2015), discussed infra at 10-11.
5 See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S.Ct. 2652 (2015), discussed infra at 12-13.
6 See Harris v. Ariz. Indep. Redistricting Comm’n, No. 14-232, discussed infra at 5-6.
7 See Wittman v. Personhuballah, No. 14-1504, discussed infra at 10-11.
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area demonstrates a tension between compliance with the VRA and conformance with standards
of equal protection. The report then addresses the Court’s 2015 ruling in Arizona State
Legislature v. Arizona Independent Redistricting Commission, upholding an Arizona
constitutional provision—enacted through initiative—that established an independent
commission for drawing congressional districts. Finally, the report provides an overview of
selected legislation in the 114th Congress that would establish additional statutory requirements
and standards for congressional redistricting.
Constitutional and Statutory Requirements
The legal framework for congressional redistricting involves, in addition to various state
processes, both constitutional and federal statutory requirements, and case law interpretations of
each. The Elections Clause of the Constitution, Article I, Section 4, clause 1,8 provides that the
times, places, and manner of holding congressional elections be prescribed in each state by the
legislature thereof, but that Congress may at any time make or alter such laws. Article I, Section
2, clause 3 requires a count of the U.S. population every 10 years,9 and based on the census,
requires apportionment of seats in the House of Representatives among the states, with each state
entitled to at least one Representative.10 A federal statute requires that apportionment occur every
10 years.11 In order to comport with the constitutional standard of equality of population among
districts, discussed below, at least once every 10 years, in response to changes in the number of
Representatives apportioned to it or to shifts in its population, most states are required to draw
new boundaries for its congressional districts.12
The Supreme Court has interpreted the Constitution to require that each congressional district
within a state contain approximately the same population. This requirement is known as the
“equality standard” or the principle of “one person, one vote.”13 In 1964, in Wesberry v.
Sanders,14 the Supreme Court interpreted Article I, Section 2, clause 1 of the Constitution, which
states that Representatives be chosen “by the People of the several States” and “apportioned
among the several States ... according to their respective Numbers,” to require that “as nearly as is
8 U.S. CONST. art. I, §4, cl. 1 (“The Times, Places and Manner of holding Elections for Senators and Representatives,
shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter
such Regulations, except as to the Places of chusing Senators.”).
9 U.S. CONST. art. I, §2, cl. 3 (“The actual Enumeration shall be made within three Years after the first Meeting of the
Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law
direct.”).
10 U.S. CONST. amend. XIV, §2, cl. 1 (“Representatives shall be apportioned among the several States according to their
respective numbers ...”); U.S. CONST. art. I, §2, cl. 3 (“The number of Representatives shall not exceed one for every
thirty Thousand, but each State shall have at least one Representative ... ”).
11 2 U.S.C. §2a(a).
12 In general, however, it does not appear that states are prohibited from also enacting redistricting plans mid-decade,
particularly in order to replace court-ordered plans. The Supreme Court has announced that the Constitution and the
Court’s case law “indicate that there is nothing inherently suspect about a legislature’s decision to replace, mid-decade,
a court-ordered plan with one of its own.” League of United Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399, 418419 (2006). For further discussion, see CRS Report RS22479, Congressional Redistricting: A Legal Analysis of the
Supreme Court Ruling in League of United Latin American Citizens (LULAC) v. Perry, by L. Paige Whitaker. Pending
federal legislation would limit redistricting to once per decade. See infra, at p.13-14.
13 See Gray v. Sanders, 372 U.S. 368 (1963) (holding that the conception of political equality means one person, one
vote).
14 376 U.S. 1 (1964).
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practicable, one man’s vote in a congressional election is to be worth as much as another’s.”15
With regard to state legislative redistricting, later that year, the Court issued its ruling in Reynolds
v. Sims.16 In Reynolds, the Supreme Court held that the one person, one vote standard also applied
in the context of state legislative redistricting, holding that the Equal Protection Clause requires
all who participate in an election “to have an equal vote.”17
Congressional districts must be drawn consistent with the Voting Rights Act (VRA).18 The VRA
was enacted under Congress’s authority to enforce the Fifteenth Amendment, providing that the
right of citizens to vote shall not be denied or abridged on account of race, color, or previous
servitude.19 In a series of cases and evolving jurisprudence, the U.S. Supreme Court has
interpreted how the VRA applies in the context of congressional redistricting. Congressional
district boundaries in every state are required to comply with Section 2 of the VRA.20 Section 2
provides a right of action for private citizens or the government to challenge discriminatory
voting practices or procedures, including minority vote dilution, the diminishing or weakening of
minority voting power. Specifically, Section 2 prohibits any voting qualification or practice—
including congressional redistricting plans—applied or imposed by any state or political
subdivision that results in the denial or abridgement of the right to vote based on race, color, or
membership in a language minority.21 The statute further provides that a violation is established
if, based on the totality of circumstances, electoral processes are not equally open to participation
by members of a racial or language minority group in that its members have less opportunity than
other members of the electorate to elect representatives of their choice.22
Based on this legal framework, this report next analyzes legal issues that arise in the context of
congressional redistricting, addressing: the extent to which precise or ideal mathematical
population equality among districts is required; whether partisanship justifies small differences in
population between districts; whether the total population or eligible voters should be counted for
the purposes of achieving equality among districts; when creation of a majority-minority district
is required under the VRA; what limits the Fourteenth Amendment places upon congressional
redistricting; and who is authorized to draw and implement a redistricting plan.
15 Id. at 7-8.
16 377 U.S. 533 (1964).
17 Id. at 557-558.
18 For further discussion of the application of the Voting Rights Act in the context of redistricting, see CRS Report
R42482, Congressional Redistricting and the Voting Rights Act: A Legal Overview, by L. Paige Whitaker.
19 U.S. CONST. amend. XV (“The right of citizens of the United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or previous condition of servitude.”). Since its ratification in
1870, however, the use of various election procedures by certain states diluted the impact of votes cast by African
Americans or prevented voting by African Americans entirely. As case-by-case enforcement under the Civil Rights Act
proved to be protracted and ineffective, Congress enacted the Voting Rights Act of 1965. See H. REP. NO. 89-439, at 1,
11-12, 15-16, 19-20, reprinted in 1965 U.S.C.C.A.N. 2437, 2439-44, 2446-47, 2451-52 (discussing discriminatory
procedures such as poll taxes, literacy tests, and vouching requirements).
20 Section 5 of the VRA has been rendered inoperable as a result of the Supreme Court’s 2013 ruling in Shelby County
v. Holder, 133 S.Ct. 2612 (2013). For more information, see CRS Legal Sidebar WSLG574, Supreme Court Strikes
Key Provision of Voting Rights Act, by L. Paige Whitaker, and CRS Report R42482, Congressional Redistricting and
the Voting Rights Act: A Legal Overview, by L. Paige Whitaker.
21 52 U.S.C. §§10301, 10303(f).
22 52 U.S.C. §10301(b).
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Legal Issues
How Close to Exact Equality?
In a series of cases since 1964, the Supreme Court has described the extent to which precise or
ideal mathematical population equality among districts is required. Ideal or precise equality is the
average population that each district would contain if a state population were evenly distributed
across all districts. The total or “maximum population deviation” refers to the percentage
difference from the ideal population between the most populated district and the least populated
district in a redistricting map. It is important to note that for congressional districts, less deviation
from precise equality has been found to be permissible than for state legislative districts.23
For example, in Kirkpatrick v. Preisler,24 the Supreme Court invalidated a congressional
redistricting plan where the district with the greatest population was 3.13% over the equality
ideal, and the district with the lowest population was 2.84% below it. The Court considered the
maximum population deviation of 5.97% to be too great to comport with the “as nearly as
practicable” standard set forth in Wesberry. Further, in Karcher v. Dagett,25 the Court held that
“absolute” population equality is the standard for congressional districts unless a deviation is
necessary to achieve “some legitimate state objective.” These include “consistently applied
legislative policies” such as achieving greater compactness, respecting municipal boundaries,
preserving prior districts, and avoiding contests between incumbents. In Karcher, the Court
rejected a 0.6984% deviation in population between the largest and the smallest district.
More recently, in Tennant v. Jefferson County Commission,26 the Court further clarified that the
“as nearly as is practicable” standard does not require congressional districts to be drawn with
precise mathematical equality, but instead requires states to justify population deviation among
districts with “legitimate state objectives.” Relying on Karcher, the Court outlined a two-prong
test to determine whether a congressional redistricting plan passes constitutional muster. First, the
challengers have the burden of proving that the population differences could have been
practicably avoided. Second, if successful, the burden shifts to the state to demonstrate “with
some specificity” that the population differences were needed to achieve a legitimate state
objective.27 The Court emphasized that this burden is “flexible,” and depends on the size of the
population deviations, the importance of the state’s interests, the consistency with which the plan
reflects those interests, and whether alternatives exist that might substantially serve those interests
while achieving greater population equality.28 In Tennant, the Court determined that avoiding
contests between incumbents, maintaining county boundaries, and minimizing population shifts
between districts were neutral, valid state policies that warranted the relatively minor population
disparities. The Court also determined that none of the alternative redistricting plans that achieved
greater population equality came as close to vindicating the state’s legitimate objectives.
23 See, e.g., Gaffney v. Cummings, 412 U.S. 735 (1973) (upholding a Connecticut legislative redistricting plan with a
total maximum population deviation of 7.83%). But see, Cox v. Larios, 542 U.S. 947 (2004) (summarily affirming the
invalidation of a state legislative redistricting plan with a total maximum population deviation of 9.98%).
24 394 U.S. 526 (1969).
25 462 U.S. 725, 740 (1983).
26 133 S.Ct. 3 (2012).
27 Id. at 5 (quoting Karcher, 462 U.S. at 734, 740-41).
28 Id. (quoting Karcher, 462 U.S. at 741).
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Therefore, the Court upheld the 0.79% maximum population deviation between the largest and
smallest congressional district.
Can Partisanship Justify Differences in Population?
As discussed above, Supreme Court case law has permitted state legislative districts a greater
deviation from precise equality than congressional districts. Nonetheless, such deviation can be
found to be improper if it is motivated by partisanship. In Cox v. Larios,29 the Supreme Court
summarily affirmed a district court decision striking down a state legislative redistricting plan,
with a maximum population deviation of 9.9%, as a violation of the one-person, one-vote
principle of the Equal Protection Clause. (A summary affirmance does not necessarily signal that
the Court agrees with the district court’s reasoning in this case, just the result.) Among other
things, the district court held that the plan was intentionally designed for partisan purposes.
Specifically, the district court determined that the plan allowed Democrats to maintain or increase
their delegation by under-populating the districts held by incumbent Democrats, over-populating
those held by Republicans, and deliberately pairing numerous Republican incumbents in districts
to run against one another.30
During the 2015 term, the Supreme Court has the opportunity to clarify the scope of the Larios
decision. In Harris v. Arizona Independent Redistricting Commission,31 the Court is considering
whether partisan goals can justify the drawing of state legislative districts that deviate from the
principle of population equality. This case also presents the Court with an opportunity to address
whether the goal of obtaining preclearance under the VRA justified the creation of unequal
districts, and if so, whether that justification still exists in light of the Supreme Court’s 2013
decision in Shelby County v. Holder rendering the preclearance requirement inoperable.32
Although this case is currently limited to addressing permissible deviations from precise
population equality in the context of state legislative redistricting, a broad ruling by the Court
might also impact congressional redistricting. A decision is expected by June 2016.
The lower court in Harris held that population deviations among the state legislative districts
primarily resulted from efforts to comply with the Voting Rights Act, and that even though
partisanship played some role in the map’s design, the Fourteenth Amendment challenge failed.
Among other things, the three-judge district court panel held that bipartisan support for changes
that lead to the population deviations undermine the notion that partisanship, rather than
compliance with the Voting Rights Act, motivated the population deviations.33 Among the
districts in the state legislative map, the district with the largest population is 4.1% above the
ideal population, and the district with the smallest population is 4.7% below the ideal population,
creating a maximum population deviation of 8.8%.
29 See 542 U.S. 947 (2004).
30 See Larios v. Cox, 300 F. Supp. 2d 1320, 1329 (N.D. Ga. 2004).
31 No. 14-232.
32 The preclearance requirement of Section 5 of the VRA has been rendered inoperable as a result of the Supreme
Court’s 2013 ruling in Shelby County v. Holder, 133 S.Ct. 2612 (2013). For more information, see CRS Legal Sidebar
WSLG574, Supreme Court Strikes Key Provision of Voting Rights Act, by L. Paige Whitaker, and CRS Report R42482,
Congressional Redistricting and the Voting Rights Act: A Legal Overview, by L. Paige Whitaker.
33 See Harris v. Ariz. Indep. Redistricting Comm’n, 993 F. Supp. 2d 1042, 1062 (D. Ariz. 2014).
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Who Is Counted: Total Population or Eligible Voters?
While the Supreme Court has issued several decisions on the extent to which precise
mathematical equality among districts is constitutionality required, until recently, it had not
addressed who should be counted (i.e., total population, eligible voters, or some other measure of
population) within districts in order to achieve such equality. It had left that determination to the
states. When the Court refused to review a case presenting this issue in 2001, Justice Thomas
dissented, arguing that the Court should settle the matter: “[t]he one-person, one-vote principle
may, in the end, be of little consequence if we decide that each jurisdiction can choose its own
measure of population. But as long as we sustain the one-person, one-vote principle, we have an
obligation to explain to States and localities what it actually means.”34
In April 2016, the Court addressed this issue. In Evenwel v. Abbott,35 a unanimous Supreme Court
upheld, against a Fourteenth Amendment equal protection claim, a state’s decision to draw its
legislative districts based on total population. Notably, however, the Court declined to rule
specifically on the constitutionality of a state drawing district lines based on some other measure
of population, such as eligible or registered voters. Justice Ginsburg wrote the opinion for the
Court, which was joined by five Justices; while concurring in the judgment, Justices Alito and
Thomas wrote separate concurrences and did not join in Justice Ginsburg’s opinion.
The majority opinion in Evenwel relied on constitutional history, Court precedent, and
longstanding practice in analyzing the question presented. First, the opinion pointed to the
analogous determination made by the framers of the Constitution who decided that apportionment
of seats in the U.S. House of Representatives was to be based on all inhabitants, not just voters,
even though the states were free to deny many inhabitants the right to vote for such
representatives.36 Likewise, the opinion noted, when it debated the Fourteenth Amendment,
Congress reconsidered the proper basis for apportioning House seats, and expressly rejected
allocation based on voter population. Therefore, the Court reasoned, “[i]t cannot be that the
Fourteenth Amendment calls for the apportionment of congressional districts based on total
population, but simultaneously prohibits States from apportioning their own legislative districts
on the same basis.”37 The Court also determined that Court precedent reinforces its holding. For
example, the Court in Evenwel noted, in Reynolds, discussed above, it “described ‘the
fundamental principle of representative government in this country’ as ‘one of equal
representation for equal numbers of people.’”38 Finally, the Court in Evenwel discussed the
significance of the representational duties of legislators, emphasizing that they are elected to
“serve all residents, not just those eligible or registered to vote.”39 Nonvoters—including
children—have an “important stake” in many legislative debates, and in receiving constituent
34 Chen v. City of Houston, 532 U.S. 1046, 1048 (2001) (Thomas, J., dissenting).
35 No. 14-940, slip op. (U.S. April 4, 2016). The litigation in Evenwel began with a challenge to the constitutionality of
a Texas redistricting map that created state senate districts with roughly equal numbers of people, but with unequal
numbers of voters. Plaintiffs argued in federal district court that by not apportioning districts based on both total
population and voter population, the redistricting map violated the one person, one vote principle. In support of their
position, plaintiffs interpreted Supreme Court precedent as establishing that voters have a right to an equally weighted
vote. A three-judge federal district court panel disagreed, holding that the Supreme Court has unambiguously left this
choice of “the nature of representation” to the states, and dismissed the case. See Evenwel v. Perry, 2014 U.S. Dist.
LEXIS 156192 (W.D. Tex. 2014) (quoting Burns v. Richardson, 384 U.S. 73, 92 (1966)).
36 See id., slip op. at 16.
37 Id., slip op. at 22.
38 See id., slip op. at 28 (quoting Reynolds, 377 U.S. at 560-61 (1964)).
39 Id., slip op. at 31.
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services.40 Therefore, the Court concluded that drawing district lines based on the total population
of inhabitants serves to promote equitable and effective legislative representation.41
In a concurrence, Justice Thomas reiterated his earlier observation that the Court’s case law
addressing the principle of one person, one vote lacks clarity, and criticized the majority for once
again failing to provide a sound basis for the principle in this case.42 In Justice Thomas’ view, the
Constitution does not prescribe any one basis for drawing district lines, and states have “wide
latitude” to decide whether to draw districts based on total population, eligible voters, or “any
other nondiscriminatory voter base.”43
If the Court had ruled differently in this case, that is, by requiring the drawing of district lines
based on the number of eligible or registered voters, the consequences could have been
significant. For example, some have argued that redistricting based on such populations could
reduce the number of districts in densely inhabited urban areas, and increase the districts in more
rural or suburban areas.44 It is important to note, however, that the Evenwel decision did not
foreclose a state from choosing to use such a practice in the future. As the Court expressly
announced, it did not resolve the question—as Texas had advocated in this case—of whether
states may draw districts based on the population of eligible voters.45 The question resolved was
only that states were not required to do so as opposed to using total population. Therefore, that
question could come before the Court in a future case. Finally, although it does not appear that the
Court’s ruling in Evenwel affects congressional redistricting, and instead impacts only state
legislative and local redistricting, arguments based on Evenwel could be relevant to congressional
redistricting cases in the future.
When Is a “Majority-Minority” District Required?
Under certain circumstances, the creation of one or more “majority-minority” districts may be
required in a congressional redistricting plan. A majority-minority district is one in which a racial
or language minority group comprises a voting majority. The creation of such districts can avoid
racial vote dilution by preventing the submergence of minority voters into the majority, and the
denial of an equal opportunity to elect candidates of choice. In the landmark decision Thornburg
v. Gingles,46 the Supreme Court established a three-prong test that plaintiffs claiming vote
dilution under Section 2 must prove:
First, the minority group must be able to demonstrate that it is sufficiently large and
geographically compact to constitute a majority in a single-member district....
Second, the minority group must be able to show that it is politically cohesive....
40 Id., slip op. at 31-32.
41 See id., slip op. at 32.
42 See id., slip op. at 34 (Thomas, J., concurring in judgment).
43 Id., slip op. at 58 (Thomas, J., concurring in judgment).
44 See Richard L. Hasen, Only Voters Count?, Slate, May 26, 2015, http://www.slate.com/articles/news_and_politics/
jurisprudence/2015/05/evenwel_v_abbott_supreme_court_case_state_districts_count_voters_or_total.html. For further
discussion of redistricting data and departure from the use of total population figures, see CRS Report R42483, Legal
Issues Regarding Census Data for Reapportionment and Redistricting, by Margaret Mikyung Lee.
45 See Evenwel, No. 14-940, slip op. at 32-33.
46 478 U.S. 30 (1986).
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Third, the minority must be able to demonstrate that the white majority votes sufficiently
as a bloc to enable it—in the absence of special circumstances, such as the minority
candidate running unopposed—usually to defeat the minority’s preferred candidate. 47
The Court also discussed how, under Section 2, a violation is established if based on the “totality
of the circumstances” and “as a result of the challenged practice or structure plaintiffs do not have
an equal opportunity to participate in the political processes and to elect candidates of their
choice.”48 In order to facilitate determination of the totality of the circumstances, the Court listed
the following factors, which originated in the legislative history accompanying enactment of
Section 2:
1. the extent of any history of official discrimination in the state or political subdivision
that touched the right of the members of the minority group to register, to vote, or otherwise
to participate in the democratic process;
2. the extent to which voting in the elections of the state or political subdivisions is racially
polarized;
3. the extent to which the state or political subdivision has used unusually large election
districts, majority vote requirements, anti-single shot provisions, or other voting practices
or procedures that may enhance the opportunity for discrimination against the minority
group;
4. if there is a candidate slating process, whether the members of the minority group have
been denied access to that process;
5. the extent to which members of the minority group in the state or political subdivision
bear the effects of discrimination in such areas as education, employment and health, which
hinder their ability to participate effectively in the political process;
6. whether political campaigns have been characterized by overt or subtle racial appeals;
7. the extent to which members of the minority group have been elected to public office in
the jurisdiction.49
Further interpreting the Gingles three-prong test, in Bartlett v. Strickland,50 the Supreme Court
ruled that the first prong of the test—requiring geographical compactness sufficient to constitute a
majority in a district—can only be satisfied if the minority group would constitute more than 50%
of the voting population if it were in a single-member district.51 In Bartlett, it had been argued
that Section 2 requires drawing district lines in such a manner to allow minority voters to join
with other voters to elect the minority group’s preferred candidate, even where the minority group
in a given district comprises less than 50% of the voting age population. Rejecting that argument,
the Court held that Section 2 does not grant special protection to minority groups that need to
47 Id. at 50-51 (citation omitted). The three requirements set forth in Thornburg v. Gingles for a Section 2 claim apply
to single-member districts as well as to multi-member districts. See Growe v. Emison, 507 U.S. 25, 40-41 (1993) (“It
would be peculiar to conclude that a vote-dilution challenge to the (more dangerous) multimember district requires a
higher threshold showing than a vote-fragmentation challenge to a single-member district.”) Id. at 40.
48 Id. at 44.
49 Id. at 36-37, (quoting S. REP. NO. 97-417, at 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177). (“Additional factors
that in some cases have had probative value as part of plaintiffs’ evidence to establish a violation are: whether there is a
significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the
minority group [and] whether the policy underlying the state or political subdivision’s use of such voting qualification,
prerequisite to voting, or standard, practice or procedure is tenuous.”) Id.
50 556 U.S. 1 (2009).
51 See id. at 25-26.
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form political coalitions in order to elect candidates of their choice. To mandate recognition of
Section 2 claims where the ability of a minority group to elect candidates of choice relies upon
“crossover” majority voters would result in “serious tension” with the third prong of the Gingles
test.52 The third prong of Gingles requires that the minority be able to demonstrate that the
majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred
candidate.
As the discussion above indicates, in certain circumstances, Section 2 can require the creation of
one or more majority-minority districts in a congressional redistricting plan. By drawing such
districts, a state can avoid racial vote dilution, and the denial of minority voters’ equal
opportunity to elect candidates of choice. As the Supreme Court has determined, minority voters
must constitute a numerical majority—over 50%—in such minority-majority districts. However,
as examined in the section below, there are constitutional limits on the creation of minoritymajority districts.
What Are the Limits Under the Fourteenth Amendment
Equal Protection Clause?
Congressional redistricting plans must also conform with standards of equal protection under the
Fourteenth Amendment to the U.S. Constitution.53 According to the Supreme Court, if race is the
predominant factor in the drawing of district lines, above other traditional redistricting
considerations—including compactness, contiguity, and respect for political subdivision lines—
then a “strict scrutiny” standard of review is applied. In this context, strict scrutiny review
requires that a court determine that the state has a compelling governmental interest in creating a
majority-minority district, and that the redistricting plan is narrowly tailored to further that
compelling interest. These cases are often referred to as “racial gerrymandering” claims, in which
plaintiffs argue that race was improperly used in the drawing of district boundaries. Case law in
this area demonstrates a tension between compliance with the VRA and conformance with
standards of equal protection.54
The Supreme Court has held that, to prevail in a racial gerrymandering claim, the plaintiff has the
burden of proving that racial considerations were “dominant and controlling” in the creation of
the districts at issue. In Easley v. Cromartie (Cromartie II),55 the Supreme Court upheld the
constitutionality of the long-disputed 12th Congressional District of North Carolina against the
argument that the 47% black district was an unconstitutional racial gerrymander. In this case,
North Carolina and a group of African American voters had appealed a lower court decision
holding that the district, as redrawn by the legislature in 1997 in an attempt to cure an earlier
violation, was still unconstitutional. The Court determined that the basic question presented in
Cromartie II was whether the legislature drew the district boundaries “because of race rather than
52 Id. at 16.
53 U.S. CONST . amend. XIV, §1 (“No State shall ... deny to any person within its jurisdiction the equal protection of the
laws.”).
54 See, e.g., Shaw v. Reno (Shaw I), 509 U.S. 630, 653-57 (1993) (holding that if district lines are drawn for the
purpose of separating voters based on race, a court must apply strict scrutiny review); Miller v. Johnson, 515 U.S. 900,
912-13 (1995) (holding that strict scrutiny applies when race is the predominant factor and traditional redistricting
principles have been subordinated); Bush v. Vera, 517 U.S. 952, 958-65 (1996) (holding that departing from sound
principles of redistricting defeats the claim that districts are narrowly tailored to address the effects of racial
discrimination).
55 532 U.S. 234 (2001).
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because of political behavior (coupled with traditional, nonracial redistricting considerations).”56
In applying its earlier precedents, the Court determined that the party attacking the legislature’s
plan had the burden of proving that racial considerations are “dominant and controlling.”57
Overturning the lower court ruling, the Supreme Court held that the attacking party did not
successfully demonstrate that race, instead of politics, predominantly accounted for the way the
plan was drawn.
In the 2015 case of Alabama Legislative Black Caucus v. Alabama,58 the Court held that in
determining whether race is a predominant factor in the redistricting process, and thereby whether
strict scrutiny is triggered, a court must engage in a district-by-district analysis instead of
analyzing the state as an undifferentiated whole.59 The Court further confirmed that in calculating
the predominance of race, a court is required to determine whether the legislature subordinated
traditional race-neutral redistricting principles to racial considerations. The “background rule” of
equal population is not a traditional redistricting principle and therefore should not be weighed
against the use of race to determine predominance, the Court held. In other words, the Court
explained, if 1,000 additional voters need to be moved to a particular district in order to achieve
equal population, ascertaining the predominance of race involves examining which voters were
moved, and whether the legislature relied on race instead of other traditional factors in making
those decisions.60 The Alabama Court also determined that the preclearance requirements of
Section 5 of the VRA,61 which are no longer operable, did not require a covered jurisdiction to
maintain a particular numerical majority percentage of minority voters in a minority-majority
district. Instead, the Court held that Section 5 required that a minority-majority district be drawn
in order to maintain a minority’s ability to elect a preferred candidate of choice. The Supreme
Court vacated the lower court’s ruling and remanded for reconsideration using the standards it
articulated. The principal dissent, written by Justice Scalia, joined by the Chief Justice and
Justices Thomas and Alito, characterized the Court’s ruling as “sweeping.”62 The dissent
cautioned that the Court’s ruling will have “profound implications” for future cases involving the
principle of one person, one vote; the VRA; and the primacy of states to manage their own
elections.63 In a separate dissent, Justice Thomas criticized the Court’s voting rights jurisprudence
generally, and this case specifically, calling it “nothing more than a fight over the ‘best’ racial
quota.”64
Alabama is notable in that minority voters successfully challenged, under the Equal Protection
Clause, districts that the state maintained were created to comply with the Voting Rights Act. The
56 Id. at 256 (emphasis included).
57 Id. (citing Miller, 515 U.S. at 913).
58 135 S. Ct. 1257 (2015). For further discussion, see CRS Legal Sidebar WSLG1230, Supreme Court Rules: Incorrect
Standards Used in Upholding Alabama Redistricting Map Against Claim of Unconstitutional Racial Gerrymandering,
by L. Paige Whitaker.
59 See id. at 1265-68.
60
See id. at 1270-72.
61 52 U.S.C. §10304. Section 5 of the VRA has been rendered inoperable as a result of the Supreme Court’s 2013 ruling
in Shelby County v. Holder, 133 S.Ct. 2612 (2013), which invalidated the coverage formula in Section 4. For more
information, see CRS Legal Sidebar WSLG574, Supreme Court Strikes Key Provision of Voting Rights Act, by L. Paige
Whitaker, and CRS Report R42482, Congressional Redistricting and the Voting Rights Act: A Legal Overview, by L.
Paige Whitaker.
62 Id. at 1274 (Scalia, J., dissenting).
63 Id. at 1281.
64 Id. at 1281 (Thomas, J., dissenting).
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decision also represents the Court’s most recent interpretation of the requirements of Section 5 of
the VRA. This could be of interest to Congress should it decide to draft a new coverage formula
in order to reinstitute Section 5 preclearance.
In another pending case, Wittman v. Personhuballah,65 the Supreme Court is poised to clarify
what challengers must demonstrate in proving that race was a predominant factor in the creation
of a redistricting plan. In Wittman, appellants are appealing a federal district court ruling that
invalidated, for a second time,66 Virginia’s Third Congressional District—comprised of a 56.3%
majority African-American voting age population—as an unconstitutional racial gerrymander.
The three-judge panel, by a 2-1 vote, ordered the Virginia legislature to draw a new congressional
district map.67 In addition to citing circumstantial evidence of the district’s shape and other
characteristics, the court found that in establishing the district’s racial composition, the
legislature’s predominant purpose was compliance with Section 5 of the VRA.68 The court also
observed that the Supreme Court has not yet decided whether continued compliance with the
VRA is a compelling state interest for a district drawn prior to the Court’s ruling in Shelby
rendering Section 5 inoperable.69 Relying on Alabama, discussed above, the court explained that
Section 5 does not require a covered state, in drawing a redistricting plan, to maintain a particular
numerical minority percentage in majority-minority districts. Instead, it is proper to inquire as to
what extent existing minority percentages need to be preserved in order to maintain the minority’s
ability to elect its candidate of choice.70 As compared to Virginia’s earlier redistricting plan, the
2012 plan increased the African-American voting age population in the Third Congressional
District from 53.1% to 56.3%. Noting that African-American voters in the district had
successfully elected representatives of choice for two decades, the court determined that the
increase in African-American voters was not justified in order to avoid retrogression and
therefore, was not narrowly tailored to achieve the goal of complying with Section 5.71 The
dissent argued that the plaintiffs failed to prove that race was the predominant factor in drawing
the district lines, and instead, maintained that the creation of the district was motivated by
traditional redistricting principles and incumbency protection.72
Intervenor-defendants in the lower court proceeding, consisting of current and former Members
of Congress, appealed to the Supreme Court.73 They argued that the lower court failed to require
the challengers to the redistricting plan to prove, as required by Alabama, that the legislature
subordinated the traditional race-neutral redistricting principles of incumbency protection and
political affiliation to racial considerations.74 Further, they maintained that because race and
65 No. 14-1504.
66 See Page v. Va. State Bd. of Elections, 58 F. Supp. 3d 533 (E.D. Va. 2014), vacated sub nom. Cantor v.
Personhuballah, 135 S. Ct. 1699 (2015).
67 See Page v. Va. State Bd. of Elections, No. 3:13cv678, slip op. (E.D. Va. June 5, 2015).
68 See id., slip op. at 18-19.
69 See id., slip op. at 50-51.
70
See id., slip op. at 17-18.
71 See id., slip op. at 51-57.
72 See id., slip op. at 118-19 (Payne, J. dissenting).
73 In the district court, the Virginia State Board of Elections defended the redistricting plan. However, in the Supreme
Court proceedings, the Board is moving to affirm the district court decision. See Motion to Affirm by Virginia State
Board of Elections Appellees, available at http://www.scotusblog.com/wp-content/uploads/2015/08/No.-14-1504VSBE-Motion-to-Affirm-July-22-2015.pdf.
74 See Reply Brief For Appellants, available at http://www.scotusblog.com/wp-content/uploads/2016/03/141504_rb_appellants.authcheckdam.pdf.
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political affiliation are often highly correlated, challengers must prove that race rather than
politics caused subordination of traditional redistricting principles. In addition to questions
relating to the merits of the case, as a threshold matter, the Court is also considering the question
of whether the appellants lack standing because they neither reside in, nor represent, the
congressional district that is being challenged. A decision in this case is expected by June 2016.
Who Is Authorized to Draw and Implement a Redistricting Plan?
In the bulk of the states, the legislature has primary authority over congressional redistricting.75
Due in part to concerns about partisan political gerrymandering—the drawing of districts for
partisan political advantage—some states have adopted independent commissions for conducting
redistricting. For example, Arizona76 and California77 created such independent redistricting
commissions by ballot initiative, thereby removing control of congressional redistricting from the
states’ legislative bodies and vesting it in commissions. The ballot initiatives specify how
commission members are to be appointed, and the procedures to be followed in drawing
congressional (and state legislative) districts. In Arizona, the state legislature filed suit
challenging the constitutionality of the independent commission.
In 2015, in Arizona State Legislature v. Arizona Independent Redistricting Commission,78 the
Supreme Court upheld the constitutionality of an independent commission, established by
initiative, for drawing congressional district boundaries. Affirming a lower court ruling,79 the
Supreme Court held that the Elections Clause of the Constitution, Article I, Section 4, clause 1,
permits a commission—instead of a state legislature—to draw congressional districts. The
Elections Clause provides that the times, places, and manner of holding congressional elections
be prescribed in each state “by the Legislature thereof.” It further specifies that the Congress may
at any time “make or alter” such laws. Announcing that “all political power flows from the
people,” the Court stated that the history and purpose of the Elections Clause do not support a
conclusion that the people of a state are prevented from creating an independent commission to
draw congressional districts.80 The main purpose of the Elections Clause, in the Court’s view, was
to empower Congress to override state election laws,81 particularly those that involve political
75 See All About Redistricting, Professor Justin Levitt’s guide to drawing the electoral lines at
http://redistricting.lls.edu/who-state.php.
76 ARIZ. CONST. ART. IV, pt. 2, §1.
77 CAL. GOV’T CODE §§8251-8253.6.
78 135 S.Ct. 2652 (2015).
79 See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 997 F. Supp. 2d 1047 (D. Ariz. 2014). By a 2-1
vote, the three-judge panel held that removing congressional redistricting authority from the state legislature did not
violate the Elections Clause. The term “Legislature,” the court held, “encompasses the entire lawmaking function of the
state.” Id. at 1054 (quoting Brown v. Sec'y of State of Fla., 668 F.3d 1271, 1278-79 (11th Cir. 2012)). The Arizona state
legislature appealed the ruling to the U.S. Supreme Court in accordance with a federal law providing that constitutional
challenges to federal or state legislative districts are considered by a three-judge federal district court panel, with direct
appeal to the U.S. Supreme Court. 28 U.S.C. §§2284, 1253. Note that in a pending case, discussed supra, n.36, the U.S.
Supreme Court will be considering the scope of §2284.
80 Ariz. State Legislature, 135 S.Ct. at 2677 (citing McCulloch v. Maryland, 17 U.S. 316 (1819)).
81 Id. at 2672 (“[T]he Clause ‘was the Framers’ insurance against the possibility that a State would refuse to provide for
the election of representatives to the Federal Congress.’” (citing Arizona v. Inter Tribal Council of Ariz., Inc., 133 S.
Ct. 2247, 2253 (2013))).
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“manipulation of electoral rules” by state politicians acting in their own self-interest. It was not
designed to restrict “the way” that states enact such legislation.82
As the Court has recognized in other cases, the term “legislature” is used several times in the U.S.
Constitution. The Court reviewed the cases in which it had considered the term, and read them to
evidence that the meaning of the term differs according to its context. For example, in a 1916
case, the Court held that the term “legislature” was not limited to the representative body alone,
but instead, encompassed a veto power held by the people through a referendum.83 Similarly, in a
1932 case, the Court held that a state’s legislative authority included not just the two houses of
the legislature, but also the veto power of the governor.84 In a 1920 case, however, the Court held
that in the context of ratifying constitutional amendments, the term “legislature” has a different
meaning, one that excludes the referendum and a governor’s veto.85
While acknowledging that initiatives were not addressed in its prior case law, the Court found no
constitutional barrier to a state empowering its people with a legislative function. Furthermore,
even though the framers of the Constitution may not have envisioned the modern initiative
process, the Court ruled that legislating through initiative is in “full harmony” with the
Constitution’s conception that the people are the source of governmental power.86 The Court
further cautioned that the Elections Clause should not be interpreted to single out federal elections
as the one area where states cannot use citizen initiatives as an alternative legislative process.87
The Court also held that Arizona’s congressional redistricting process comports with a federal
redistricting statute, codified at 2 U. S. C. Section 2a(c), providing that until a state is redistricted
as provided “by the law” of the state, it must follow federally prescribed congressional
redistricting procedures. Examining its legislative history, the Court determined that Congress
clearly intended that the statute provide states with the full authority to employ their own laws
and regulations—including initiatives—in the creation of congressional districts. When Congress
replaced the term “legislature” in the congressional apportionment laws of 1862 through 1901, to
“the manner provided by the laws” of the state in the 1911 law, the Court determined that
Congress was responding to several states supplementing the representative legislature mode of
lawmaking with a direct lawmaking role for the people through initiative and referendum.88 As
Congress used virtually identical language when it enacted Section 2a(c) in 1941, the Court
concluded that Congress intended the statute to include redistricting by initiative.89
This case was decided by a 5-4 vote. In contrast to the majority, the dissent advocated for greater
reliance on the text of the Elections Clause, maintaining that the meaning of the term “legislature”
is unambiguous, with one consistent meaning throughout the text of the Constitution: a
representative body that makes the laws of the people, rather than, as the Court held, differing
meanings depending on its context. Writing the primary dissent in this case, Chief Justice Roberts
pointed out that the Constitution contains 17 references to a state’s legislature. All such
references, he argued, are consistent with the understanding of a legislature as a representative
body. More importantly, he maintained, many of these references to “legislature” in the
82
Id. at 2672.
83 See id. at 2666-67 (citing Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565 (1916)).
84 See id. at 2667 (citing Smiley v. Holm, 285 U. S. 355 (1932)).
85 See id. at 2666-67 (citing Hawke v. Smith (No. 1), 253 U. S. 221 (1920)).
86 Id. at 2674.
87 See id. at 2673.
88 Id. at 2668-69.
89 See id. at 2669-70.
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Constitution are only consistent with the concept of an institutional legislature, and are indeed
incompatible with the majority’s interpretation that the term means the people as a whole.90 In
sum, the dissent concluded that the Court’s ruling had no basis in the text, structure, or history of
the Constitution.91
While Congress retains the power under the Constitution to make or alter election laws affecting
congressional elections, this decision clarifies that states can enact such laws through the
initiative process. For example, as discussed above, California has an initiative-established
independent commission for drawing congressional district boundaries similar to Arizona.92
Furthermore, election laws in other states, such as Ohio, prohibiting ballots providing for straightticket voting along party lines,93 and Oregon, shortening the deadline for voter registration to 20
days before an election,94 were enacted through the initiative process. This ruling suggests that
such state laws regulating congressional elections are likely to withstand challenge under the
Elections Clause.
Selected Legislation in the 114th Congress
H.R. 75, the Coretta Scott King Mid-Decade Redistricting Prohibition Act of
2015, would prohibit the states from carrying out more than one congressional
redistricting following a decennial census and apportionment, unless a state is
ordered by a court to do so in order to comply with the Constitution or to enforce
the VRA.
H.R. 1347, the John Tanner Fairness and Independence in Redistricting Act,
would prohibit the states from conducting more than one congressional
redistricting following a decennial census and apportionment, unless a state is
ordered by a court to do so in order to comply with the Constitution or to enforce
the VRA, and would require the states to conduct redistricting through
independent commissions.
H.R. 934, the Redistricting and Voter Protection Act of 2015, would require any
state that, after enacting a congressional redistricting plan following a decennial
census and apportionment, enacts a subsequent congressional redistricting plan
prior to the next decennial census and apportionment, to obtain a declaratory
judgment or preclearance as provided under Section 5 of the VRA in order for the
subsequent plan to take effect.
H.R. 1346, the Redistricting Transparency Act of 2015, would require the states
to conduct the process of congressional redistricting in such a manner that the
public is informed about proposed redistricting plans through a public Internet
site, and has the opportunity to participate in developing congressional
redistricting plans before they are adopted.
H.R. 2173, the Redistricting Reform Act of 2015, would prohibit the states from
conducting more than one congressional redistricting following a decennial
census and apportionment, unless a state is ordered by a court to do so in order to
90 See id. at 2680-81 (Roberts, C.J., dissenting).
91 Id. at 2677 (Roberts, C.J., dissenting) (“The Court today performs … a magic trick with the Elections Clause.”).
92 CAL. CONST., Art. XXI, §2; Cal. Gov’t. Code Ann. §§8251-8253.6.
93 OHIO CONST., Art. V, §2a.
94 ORE. CONST., Art. II, §2.
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comply with the Constitution or to enforce the VRA, and would require the states
to conduct redistricting through independent commissions.
Conclusion
The legal framework for congressional redistricting resides at the intersection of the
Constitution’s limits and powers, requirements prescribed under federal law, and the various
processes imposed by the states. Since the 1960s, after determining that constitutional challenges
to redistricting plans are justiciable, the Supreme Court has issued a series of rulings balancing
these competing commands. The Court’s case law has significantly shaped how congressional
districts are drawn. For example, a recent redistricting decision held that the Constitution permits
states to create, by ballot initiatives and referenda, nonpartisan independent redistricting
commissions for congressional redistricting. If more states adopt similar laws, it could change the
process of congressional redistricting nationwide. Another recent Court decision construed the
inoperable preclearance requirements in Section 5 of the Voting Rights Act to require a covered
jurisdiction to maintain minority voters’ ability to elect candidates of choice in a new redistricting
plan, not to require that a particular numerical percentage of minority voters in a minoritymajority district be maintained. Looking ahead, pending Supreme Court cases could likewise
impact the process of congressional redistricting, and the degree to which challenges to
redistricting plans will be successful.
Author Contact Information
L. Paige Whitaker
Legislative Attorney
[redacted]@crs.loc.gov , 7-....
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