CHAPTER 15 PARTISAN POLITICS, CORPORATE DISTRICTS, AND THE VOTING RIGHTS ACT
DONALD CAMPBELL
During the 1992 presidential campaign, colorful Democratic strategist James Carville coined the memorable phrase "It's the economy, stupid"1 that summarized the message of candidate (and future president) Bill Clinton's campaign. In evaluating current disputes over voting rights and regulations, how you view them depends on where you sit. With regard to partisan gerrymandering, the party in control says, "It's politics, stupid." In debates over other forms of regulation, the Republican mantra is, "It's to prevent voter fraud, stupid," while Democrats respond, "It's all to suppress the vote, stupid." Both are adamant their side is right. Concern over voting rights and access was exacerbated by the 2013 Supreme Court case Shelby County v. Holder. That case provided incentives for certain states to pass voting regulations that would have fallen to preclearance in a pre-Shelby County world. It also provided incentives for states not directly impacted by the decision, but sensing a new skepticism of the Voting Rights Act, to move forward with laws and regulations that seemed doomed prior to Shelby County. This chapter evaluates these new voting regulations through both a legal and political lens and provides perspective on how these regulations are being evaluated by courts.
Think back to the policy-making process set out in U.S. high school civics books. Citizens elect representatives who go to the State House or Congress and vote consistent with the interests of those in the district. If a representative strays too far from the position of constituents, the voters "throw the bum out." Underlying this idealistic view is the assumption that the vote is available to all citizens and that representation is truly representative.
Until relatively recently in the United States and particularly in Southern states, large portions of the population were denied the right to vote because of race. Methods to suppress the vote of minorities ranged from laws that expressly denied the ballot to more subtle but equally pernicious approaches such as literacy tests, poll taxes, and threats of violence. These barriers to voting existed until passage of the Voting Rights Act in 1965. With the right and ability to vote, minority participation made the practice of representational government in the United States more closely align with theory.
The year 2015 marked the 50th anniversary of the Voting Rights Act. The changes in society since its adoption are truly astounding. So much progress has been made that some question whether the Voting Rights Act, in its current form, is outdated. Chief Justice John Roberts, writing for the Supreme Court in Shelby County v. Holder, expressed those concerns in striking down section 4(b) of the Act. That section identified certain jurisdictions that had to obtain preclearance from the federal government before implementing changes to voting processes. In the 2013 opinion, Roberts noted: "Nearly 50 years [after passage of the Voting Rights Act], things have changed dramatically."2 To demonstrate the change, the chief justice noted that there has been a 1,000 percent increase in the number of African-Americans holding elected office since 1965.3 The most often quoted phrase from the opinion summarizes that progress and implicitly questions whether the old way of evaluating voting rights is becoming outdated: "history did not end in 1965."4
This phrase tasks us to evaluate current voting regulations and to ask how voting rights can be protected in an era of increasing partisan polarization. The new approach recognizes that it is not just the ability to vote that matters, but the rules governing the process of voting are equally important. These rules set out how, when, and where individuals vote. For example, if times for voting are restricted to traditional working hours on weekdays, then it makes it less likely individuals who cannot take off of work will vote. If registering to vote is made cumbersome or limited, then it will discourage some from registering. Because voting rules and procedures matter, the question is: should these type of regulations be scrutinized by courts, or are they a matter of the political process that should be decided in the give-and-take of what the Supreme Court has called the "political thicket"?
I call these post-Shelby County voting rights concerns. They can be labeled post-Shelby County because they represent, as Shelby County does, the progress of the Voting Rights Act since 1965. However, and more cynically, they can be termed post-Shelby County in the sense that, by striking down the preclearance formula, Shelby County provided an opportunity for states to enact more restrictive voting requirements without the gatekeeping function that preclearance provided.
This chapter evaluates current disputes regarding voting regulations in two parts. The first part analyzes political gerrymandering. The second considers other types of regulations. These areas are the new battleground where courts will establish the legal parameters of what is acceptable and what goes too far in burdening the right to vote. It is important to keep in mind that these are both legal and political issues. Where courts ultimately draw the line on these questions will have a significant impact on who holds political power in state, federal, and local governments.
I. Partisanship in Redistricting: Partisan Gerrymandering
Partisan (or political) gerrymandering is defined as "the practice of dividing a geographical area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition's voting strength."5 There is certainly nothing new about partisan gerrymandering. The word "gerrymandering" itself goes back to 1812, when a district proposed by Massachusetts Governor Elbridge Gerry took the shape of a salamander in the eye of a political cartoonist. The goal of a partisan gerrymander is to ensure that a candidate from a particular party is elected. This is done in one of two ways: cracking or packing. Cracking is the division of voters of the opposing party into more than one district to "crack" the strength of their vote so that the preferred party can win. Packing, on the other hand, is the process of consolidating opposing voters into a single district so that, while the voting strength is overwhelming, there are a great deal of wasted votes that, if spread among multiple districts, would provide an opportunity to elect more candidates of the opposing party.
The implications of partisan gerrymandering have come under increased scrutiny. How is it that legislative bodies can have such low public approval ratings and yet return the same members to the legislature over and over? Some argue the reason is structural, that the system is rigged so that those drawing the lines protect themselves and, more broadly, the interests of their political party. The issue has become so salient that Harvard Law Professor Lawrence Lessig is exploring a run for president in 2016 as a "referendum candidate" with the elimination of partisan gerrymandering being one of only three planks in his platform. Lessig says that if he is elected and his proposed legislation is enacted by Congress, he will step aside and allow his vice president to take over.6
While attacking partisan gerrymandering as undemocratic has gained traction among scholars and good government groups, it is fair to ask: what exactly is the problem with partisan gerrymandering? After all, isn't the drawing of districts inherently political and any attempt to identify a district that is "too" political bound to fail or simply shift the political calculation to the courts from legislative bodies? Furthermore, the political process is too fluid—and political affiliation too uncertain—to say that a district that is gerrymandered in favor of one party in this election will not belong to the opposition party in the next. Finally, even if partisan gerrymandering is improper, there are no standards for courts to determine what a proper nonpartisan district looks like, and therefore, resolution must be found in the political process and not the judicial branch.
Opponents of gerrymandered districts point out that they have the antidemocratic effect of allowing a representative to choose his or her voters instead of allowing the voters to choose their representative. The inevitable result of such partisan-based districting is that those elected will not feel obligated to consider the interests of citizens of the opposing party. It makes sense that a representative from a district that is packed with voters who think exactly like him or her is likely to hear nothing but voices echoing the same partisan position and ignore opposition positions. And, when a candidate has to survive a same-party primary opponent, the incentive is not to moderate—but instead to take hard-line positions on issues to satisfy the most active (and often the most conservative/liberal) voters in the district. Multiply this example across many districts—either at the state or federal level—and the legislative bodies become hyper-partisan, resistant to compromise, and in a constant state of policy gridlock.7
Even accepting that partisan gerrymandering runs counter to the ideal of democracy, this fact alone does not provide an answer to the underlying question of whether anything can (or should) be done about it through the courts. Is there a constitutional basis for holding that politicians have an obligation to avoid extreme partisanship when drawing district lines? The U.S. Supreme Court's current position on this can only be called a morass.
The Court first addressed partisan gerrymandering in the 1986 case Davis v. Bandemer. The Court faced the question directly: is there a constitutional claim when a state draws legislative...
