Congressional Redistricting: A Legal Analysis of the Supreme Court Ruling in League of United Latin American Citizens (LULAC) v. Perry

Congressional Redistricting: A Legal Analysis

of the Supreme Court Ruling in League of

United Latin American Citizens (LULAC) v.

Perry

name redacted

Legislative Attorney

January 12, 2010

Congressional Research Service

7-....

www.crs.gov

RS22479

CRS Report for Congress

Prepared for Members and Committees of Congress

Congressional Redistricting

Summary

In a splintered, complex decision, the U.S. Supreme Court in League of United Latin American

Citizens (LULAC) v. Perry largely upheld a Texas congressional redistricting plan that was drawn

mid-decade against claims of unconstitutional partisan gerrymandering. The Court invalidated

one Texas congressional district, District 23, finding that it diluted the voting power of Latinos in

violation of Section 2 of the Voting Rights Act. While not ruling out the possibility of a claim of

partisan gerrymandering being within the scope of judicial review, a majority of the Court in this

case was unable to find a “reliable” standard for making such a determination.

In the 111th Congress, H.R. 3025, the “Fairness and Independence in Redistricting Act of 2009,”

(Representative Tanner) and S. 1332, the “Fairness and Independence in Redistricting Act of

2009,” (Senator Johnson) are pending. These bills would, among other things, prohibit states

from carrying out more than one congressional redistricting after a decennial census and

apportionment, unless a court required the state to conduct subsequent redistricting to comply

with the Constitution or to enforce the Voting Rights Act; require states to conduct redistricting

through the use of independent commissions; and impose standards of compactness, contiguity,

and geographical continuity.

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Contents

Background ..........................................................................................................................1

Analysis of Supreme Court Ruling ........................................................................................1

Constitutionality of Partisan Gerrymandering..................................................................1

Compliance with the Voting Rights Act ...........................................................................4

Consequences .......................................................................................................................5

Selected Legislation in the 111th Congress .............................................................................5

Contacts

Author Contact Information ........................................................................................................5

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Background

Following the 2000 census, Texas was apportioned two additional congressional seats.

Subsequently, the state legislature was unable to enact a redistricting map, resulting in litigation

and, ultimately, imposition of a court-ordered congressional redistricting plan. 1 The 2002 election

was held under the court-ordered plan, resulting in a Democratic majority in the Texas

congressional delegation. In October 2003, after the Republican party gained control of the Texas

State House of Representatives, and thus, both houses of the legislature, it enacted a new

congressional redistricting map with the goal “to increase [Republican] representation in the

congressional delegation.”2 The League of United Latin American Citizens (LULAC) and others

challenged the new plan in court, alleging various statutory and constitutional violations. The

district court entered judgment against LULAC on all claims, 3 and they appealed to the U.S.

Supreme Court. As the Court had just issued its decision in Vieth v. Jubelirer,4 it vacated the

district court decision and remanded in light of its holding in Vieth. On remand, the district court

again ruled against LULAC, finding that the scope of its consideration was limited to questions of

political gerrymandering. 5 In their appeal to the Supreme Court, appellants argued that the new

redistricting plan should be invalidated as an unconstitutional partisan gerrymander.

Analysis of Supreme Court Ruling

League of United Latin American Citizens (LULAC) v. Perry was a consolidation of four appeals

before the U.S. Supreme Court.6 In this ruling, the Supreme Court’s nine Justices filed six

different opinions, each with subparts. Many issues were raised by the appellants in this case, but

the decision primarily addressed two topics: (1) the constitutionality of partisan gerrymandering

and (2) whether the Texas redistricting plan violated Section 2 of the Voting Rights Act.

Constitutionality of Partisan Gerrymandering

While not ruling out the possibility of a claim of unconstitutional partisan gerrymandering being

within the scope of judicial review, the Court in LULAC v. Perry was unable to find a sufficient

standard for making such a determination.

Appellants in LULAC challenged the 2003 mid-decennial Texas redistricting plan on the grounds

that it was an unconstitutional political gerrymander motivated by partisan objectives, in violation

of equal protection and First Amendment guarantees under the Constitution. They maintained that

1

See Balderas v. Texas, Civ. Action No. 6:01CV158 (ED Tex., Nov. 14, 2001) (per curiam), summarily aff’d, 536 U.S.

919 (2002).

2

See League of United Latin American Citizens (LULAC) v. Perry, 548 U.S. 399, 412 (2006) (plurality opinion)

(quoting Session v. Perry, 298 F. Supp. 2d 451, 471 (2004) (per curiam)).

3

Session v. Perry, 298 F. Supp. 2d 451 (2004) (per curiam).

4

541 U.S. 267 (2004). The Vieth Court ruled that a constitutional equal protection challenge to a political gerrymander

may be justiciable (i.e., within the scope of judicial review), but a majority of the Court was unable to agree on a

standard to apply in making such a determination. See id. at 127-37 (plurality opinion) and 161-62 (Powell, J.,

concurring in part, dissenting in part).

5

Henderson v. Perry, 399 F. Supp. 2d 756 (2005).

6

LULAC v. Perry, No. 05-204; Travis County, Texas v. Perry, No. 05-254; Jackson v. Perry, No. 05-276; and GI

Forum of Texas v. Perry, No. 05-439.

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the plan served no legitimate public purpose and burdened one group because of its political

opinions and affiliation. Appellants urged the Court to adopt a rule or presumption of invalidity

when a mid-decade redistricting plan is enacted solely for partisan purposes, thereby alleviating

the need for courts to inquire about (or for parties to prove) the discriminatory effects of partisan

gerrymandering.7

In evaluating appellants’ arguments, the Court first noted that there were indications that “partisan

motives did not dictate the plan in its entirety.”8 The Court further determined that ascertaining

the legality of an act arising from “mixed motives” can be complicated, and indeed, “hazardous,”

particularly when the actor is a legislature and the act is a series of choices. Hence, the Court

expressed skepticism of a claim seeking to invalidate a statute based on a legislature’s unlawful

motive without reference to its content. Notwithstanding its skepticism, the Court also found that

in order for a claim of unconstitutional partisan gerrymandering to prevail, it must show a burden

on complainants’ representational rights, “as measured by a reliable standard.” Indeed, the Court

noted, for this exact reason, a majority of the Vieth Court had rejected a test “markedly similar” to

the one proposed by the appellants.9

In regard to appellants’ reliance on the fact that the redistricting plan was enacted mid-decade, the

Court 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.” Even if there were, the Court commented, “the fact of mid-decade redistricting

alone is no sure indication of unlawful political gerrymanders.”10 The Court also observed that the

“sole-intent standard” is no more compelling when bolstered by the fact that the redistricting was

enacted mid-decade. 11

Appellants proffered a second political gerrymandering theory: that mid-decade redistricting for

exclusively partisan purposes violates the Constitution’s one-person, one-vote requirement. Citing

landmark Supreme Court holdings in Karcher v. Daggett12 and Kirkpatrick v. Preisler,13 they

observed that population variances among congressional districts are acceptable only if they are

“unavoidable,” despite good faith efforts to attain complete equality “or for which justification is

shown.” From that premise, appellants maintained that due to population shifts in Texas since the

2000 census, the 2003 redistricting, which still relied on the 2000 census numbers, created

unlawful population variances among the districts. To distinguish the Texas 2003 redistricting

plan’s reliance on three-year-old census numbers from other, more typical redistricting plans’

reliance on three-year-old (or older) census numbers, appellants again highlighted the “voluntary,

mid-decade” nature of the redistricting and its “partisan motivation.” The Court found that the

appellants’ theory merely restated their primary argument that it was impermissible for the Texas

legislature to redraw the districting map, mid-decade, for solely partisan purposes. Hence, for the

same reasons it had originally rejected this argument, the Court once again found it unpersuasive.

In its concluding statement, the Court announced:

7

LULAC, 548 U.S. at 416-17 (2006).

Id. at 417. The Court further noted, “The legislature does seem to have decided to redistrict with the sole purpose of

achieving a Republican congressional majority, but partisan aims did not guide every line it drew.” Id.

9

Id. at 418 (citing Vieth v. Jubelirer, 541 U.S. 267 (2003)).

10

Id. at 419.

11

Id. at 418.

12

462 U.S. 725, 730 (1983).

13

394 U.S. 526, 531 (1969).

8

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In sum, we disagree with appellants’ view that a legislature’s decision to override a valid,

court-drawn plan mid-decade is sufficiently suspect to give shape to a reliable standard for

identifying unconstitutional political gerrymanders. We conclude that appellants have

established no legally impermissible use of political classifications. For this reason, they

state no claim on which relief may be granted for their statewide challenge.14

Writing for the Court, Justice Kennedy announced that a majority of the Justices were unable to

find a “reliable measure” of what constitutes unconstitutional partisan gerrymandering and

therefore determined that the claims presented were not justiciable. 15 Notably, however, a

majority of the Court stopped short of concluding that standards a court could use to evaluate

such claims do not exist, which left existing Court precedent basically unchanged.

In the 2004 Supreme Court case of Vieth v. Jubelirer,16 a plurality of four justices argued that

claims of unconstitutional partisan gerrymandering are not justiciable17 while another plurality of

four justices maintained that such claims are justiciable, but were unable to agree upon a standard

that courts could use in order to make such determinations.18 The deciding vote in Vieth, Justice

Kennedy, determined that the claims presented were not justiciable, but left open the possibility

that such standards might exist.19

Similar to its decision in Vieth, the Court in LULAC was also divided into three camps on the

issue of whether partisan gerrymandering claims are beyond the scope of judicial review. In

LULAC, the same four justices from Vieth argued that claims of unconstitutional partisan

gerrymandering are justiciable, while not agreeing upon a standard for adjudicating such claims.20

Of the four justices in Vieth who believed that such claims are not justiciable, the two who remain

on the Court maintained that same position in LULAC.21 Two justices who joined the Court since

its ruling in Vieth, Chief Justice Roberts and Justice Alito, generally agreed with Justice

Kennedy’s position, leaving open the possibility that the Court might discern a standard for

adjudicating unconstitutional partisan gerrymandering claims in a future case.22

As a result, a majority of the Court in LULAC was unable to find a “reliable measure” of what

constitutes an unconstitutional partisan gerrymandering. Therefore, the Court determined that the

claims presented in this case were not justiciable, 23 but declined to conclude that standards a court

14

LULAC, 548 U.S. at 423.

See id. at 420.

16

541 U.S. 267 (2004) (plurality opinion).

17

See id. at 271-306 (Scalia, J., joined by Chief Justice Rehnquist, and Justices O’Connor and Thomas) (arguing that

Davis v. Bandemer, 478 U.S. 109 (1986), which held that claims of partisan political gerrymandering are justiciable,

was wrongly decided because “no judicially discernible and manageable standards for adjudicating political

gerrymandering claims have emerged”). Id. at 281.

18

See id. at 317-41 (2004) (Stevens, J., dissenting); id. at 343-55 (Souter, J., dissenting, joined by Justice Ginsburg); id.

at 355-68 (Breyer, J., dissenting).

19

See id. at 306-17 (Kennedy, J., concurring).

15

20

See LULAC, 548 U.S. at 447-83 (2006) (Stevens, J., dissenting in part, concurring in part); id. at 483-91 (Souter, J,

concurring in part and dissenting in part, joined by Justice Ginsburg); id. at 491-92 (Breyer, J., concurring in part and

dissenting in part).

21

See id. at 511-20 (Scalia, J., dissenting, joined by Justice Thomas).

22

See id. at 492-511 (Roberts, C.J., concurring in part, concurring in the judgment in part, dissenting in part, joined by

Justice Alito).

23

See id. at 446-47.

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could use to evaluate such claims do not exist. In the aftermath of LULAC, it appears theoretically

possible for a claim of unconstitutional partisan gerrymandering to prevail. However, the critical

standard that a court could use to ascertain such a determination and grant relief remains

unresolved.

Compliance with the Voting Rights Act

Appellants in LULAC argued that changes to Texas’s congressional District 23 diluted the voting

rights of Latinos who remained in the district after the 2003 redistricting, causing the Latino share

of the citizen voting-age population to drop from 57.5% to 46%, in violation of Section 2 of the

Voting Rights Act. Although the Supreme Court acknowledged the district court’s finding that

Latino voting strength was unquestionably weakened, the question for the Court was whether it

constituted vote dilution.

Engaging in a threshold analysis for establishing a Section 2 violation in accordance with its

landmark decision, Thornburg v. Gingles,24 the Court determined that appellants satisfied all three

Gingles requirements; that is, District 23 possessed the requisite cohesion among the Latino

minority group, bloc voting among the majority population, and a Latino citizenry that was

“sufficiently large and geographically compact to constitute a majority in a single-member

district.”25 Nevertheless, the appellee argued that it met its Section 2 obligations by creating a

new District 25 as an “offsetting opportunity” district. Noting that it has rejected the premise that

a state can compensate for the “less-than-equal” opportunity of some individuals by providing

greater opportunity to others, the Court rejected the appellee’s argument.26

Next, as directed by the text of Section 2 of the Voting Rights Act,27 the Court turned to consider

the “totality of the circumstances” to determine whether members of the Latino population have

less opportunity than other members of the electorate to participate in the political process and to

elect candidates of their choice. The Court determined that changes to District 23 stymied the

progress of a racial group that had historically been subject to substantial voting-related

discrimination and was increasingly politically active and cohesive. In effect, the Court noted,

“the State took away the Latinos’ opportunity because Latinos were about to exercise it.”28 The

Court further announced that the state “chose to break apart a Latino opportunity district to

protect the incumbent congressman from the growing dissatisfaction of the cohesive and

politically active Latino community in the district.” Then, purporting to compensate for the

injury, the state created an entirely new district, combining two groups of Latinos, geographically

far apart and representing differing communities of interest. Even assuming that the redrawing of

District 23 was close to proportional representation, the Court held that “its troubling blend of

politics and race—and the resulting vote dilution of a group that was beginning to achieve §2’s

goal of overcoming prior electoral discrimination—cannot be sustained.”29

24

478 U.S. 30, 50 (1986)).

LULAC, 548 U.S. at 425-28.

26

Id. at 429 (citing Shaw v. Hunt (Shaw II), 517 U.S. 899, 917 (1996) (holding that vote dilution injuries are not

remedied by creating a safe majority-black district elsewhere in the state)).

27

See 42 U.S.C. § 1973(b).

28

LULAC, 548 U.S. at 440.

29

Id. at 442.

25

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Accordingly, the Supreme Court ruled that District 23 violated Section 2 of the Voting Rights Act

because it diluted the voting power of Latinos. This portion of the opinion was written by Justice

Kennedy and joined by Justices Souter, Ginsburg, Stevens, and Breyer.

Consequences

After rejecting the statewide challenge to Texas’s redistricting as an unconstitutional partisan

gerrymander, and holding that congressional District 23 violates Section 2 of the Voting Rights

Act, the Supreme Court in LULAC remanded the case for further proceedings. 30 In accordance

with the Supreme Court’s ruling, on June 29, 2006, a federal district court in Texas ordered

parties in the case to submit remedial proposals, including supporting maps and briefs.31 The

court heard oral argument on August 3 and adopted a new plan on August 4 redrawing Texas

congressional districts 15, 21, 23, 25, and 28. The court ordered that special elections in the

redrawn districts for the 110th Congress be held in conjunction with the November 7, 2006,

general election. 32

As a result of the Court’s ruling, commentators have observed other states may dispense with the

tradition of redrawing congressional districts only once per decade following the decennial

census, and instead, redistrict following a change in political control of the state government. It

has also been noted, however, that there does not appear to be any urgency on the part of state

legislatures to do so. 33

Selected Legislation in the 111th Congress

In the 111th Congress, H.R. 3025, the “Fairness and Independence in Redistricting Act of 2009,”

(Representative Tanner) and S. 1332, the “Fairness and Independence in Redistricting Act of

2009,” (Senator Johnson) are pending. These bills would, among other things, prohibit states

from carrying out more than one congressional redistricting after a decennial census and

apportionment, unless a court required the state to conduct subsequent redistricting to comply

with the Constitution or to enforce the Voting Rights Act; require states to conduct redistricting

through the use of independent commissions; and impose standards of compactness, contiguity,

and geographical continuity.

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

30

See id. at 447.

LULAC v. Perry, Civ. Action No. 2:03-CV-354 (ED Tex., June 29, 2006).

32

LULAC v. Perry, Civ. Action No. 2:03-CV-354 (ED Tex., August 4, 2006).

33

See, e.g., Linda Greenhouse, Justices Uphold Most Remapping in Texas by G.O.P., N.Y. TIMES, June 29, 2006.

31

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