Abstract

Excerpted From: Joseph Palandrani and Danika Watson, Racial Gerrymandering, the for the People Act, and Brnovich: Systemic Racism and Voting Rights in 2021, 89 Fordham Law Review Online 124 (2021) (113 Footnotes) (Full Document)

The U.S. Supreme Court held racial gerrymandering unconstitutional in 1960 in Gomillion v. Lightfoot, striking down the bizarrely redrawn congressional boundaries of the City of Tuskegee, Alabama: a twenty-eight-sided figure that removed virtually all Black voters from within the city limits and placed them outside the city limits--without removing a single white voter. Nevertheless, as states across the country redraw legislative district lines that disenfranchise minorities and perpetuate systemic racism, the legal doctrine protecting against racial discrimination in gerrymandering remains fraught. In the spring of 2021, minority voting power is both championed and attacked in Congress and in the Supreme Court of the United States. The For the People Act of 2021, passed by the House of Representatives in early March 2021, promises to restore the strength of the Voting Rights Act of 1965 by expressly banning partisan gerrymandering. If passed, the For the People Act would provide the first federal statutory cause of action for voters to bring claims challenging partisan gerrymandering. Meanwhile, at the Court, Brnovich v. Democratic National Committee raises challenges to § 2 of the Voting Rights Act, a tool historically used to challenge racially discriminatory redistricting, by threatening its ability to protect minority voting power and potentially legitimizing highly restrictive election laws that disproportionately impact marginalized Black, Indigenous, and other people of color (BIPOC) communities.

In the spring of 2021, minority voting rights are at stake. This Comment begins with Part I, a brief primer on the current state of U.S. legal doctrine around race, redistricting, and representation that precipitated the For the People Act (particularly the sections that comprise the Redistricting Reform Act and that are implicated in Brnovich. Then, Part II.A explains the imaginary line between partisan and racial gerrymandering that the For the People Act seeks to eradicate. State legislatures and redistricting commissions draw district lines with significant racialized impact under the banner of “partisan gerrymandering,” which the Supreme Court upheld as constitutional on nonjusticiability grounds under the political question doctrine in 2019 in Rucho v. Common Cause. Under the guise of a permissible partisan purpose, these district lines deprive minority citizens of equal voting power, perpetuating and entrenching racial power imbalances.

Part II.B introduces § 2 of the Voting Rights Act, the provision challenged in Brnovich. This Part then presents historical successes in challenging and deterring racial gerrymandering using § 2. It proceeds to outline § 2's weaknesses in protecting minority voting strength and combating minority voter suppression after the Supreme Court struck down its sister provision--§ 5--in 2013 in Shelby County v. Holder.

Part III outlines several of the current “open questions” on minority voting power and redistricting raised by Brnovich and the Redistricting Reform Act of 2021. First, this Part charts the relationship between Brnovich--a Voting Rights Act vote denial case--and redistricting, which gives rise to Voting Rights Act vote dilution claims. This Part shows that the Court may use Brnovich to limit the reach of its vote dilution precedents, thereby potentially weakening § 2 of the Voting Rights Act. Next, this Part outlines the important features of the Redistricting Reform Act, which passed the House in March 2021 as part of the For the People Act. With detailed mechanisms for restricting partisan gamesmanship in congressional districting and strong remedial provisions, the Act shows a promising way out of entrenched, nonjusticiable disenfranchisement.

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While there is cause for concern about the future of voting rights in the federal courts, there is some cause for hope that Congress will step in to strengthen the franchise. The Rucho Court, in emphasizing that Congress could remedy the wrongs the Court declined to address, observed that “[t]he first bill introduced in the 116th Congress would require States to create 15-member independent commissions”; a version of that legislation has now passed the House of Representatives. The bill--a piece of the For the People Act titled the Redistricting Reform Act of 2021--would require independent state commissions to make congressional redistricting decisions. These commissions would be convened in part by “Nonpartisan Agenc[ies]” established within each state's legislature. Such agencies would choose the first six members of each commission; those six members would in turn appoint nine more for a total of fifteen members per commission. Any registered voter who has not changed parties within three years, has no immediate familial political ties, and has not violated federal election law may apply to be on a state commission.

The Redistricting Reform Act is a meticulously detailed piece of legislation. It prescribes standards for each commission's day-to-day operations, sets deadlines for the selection of commission members, and lays out the procedures by which the commission is to engage the public in the districting process. But its broad provisions are likely its most significant. The bill requires, for example, that districts “respect communities of interest, neighborhoods, and political subdivisions” and deems district lines unlawful if, under the “totality of circumstances,” it is evident that they “unduly favor[] or disfavor[] a political party.” Reiterating the protections of the Voting Rights Act, the Redistricting Reform Act would require each congressional district to “provide racial, ethnic, and language minorities with an equal opportunity to participate in the political process and to elect candidates of choice.” And these statutory guarantees are backed by a strong remedial framework: private rights of action would be available to anyone “aggrieved” by failures to adhere to the bill's requirement, and such actions would be heard by three-judge panels whose decisions would be directly appealable to the Supreme Court on an expedited basis.

As racially discriminatory voting policies have taken cover behind the thin veil of professed partisan motivation, the Court has declined to take remedial action. Meanwhile, precedents like Gingles that could equip courts to grapple with the racial impacts of facially neutral but effectively unequal election rules are embattled. With the Voting Rights Act and the Equal Protection Clause less likely to adequately safeguard minority voters, further legislation is necessary to fill the void. By joining the Voting Rights Act's protections for minority voting power with new restrictions on parties' opportunities to tilt the playing field in their favor, the Redistricting Reform Act provides a promising response to the enduring racism that infects American election law.

J.D. Candidate, 2022, Fordham University School of Law.

J.D. Candidate, 2022, Fordham University School of Law.