ALEC Amicus Brief Asks Supreme Court to Set Clear Guidelines and Protect State Authority in Redistricting Process

Earlier this week, the American Legislative Exchange Council (ALEC) filed an amicus brief with the United States Supreme Court, asking it to protect state legislatures’ constitutional authority to create legislative districts and to craft an objective test to help guide state legislatures during the redistricting process. Through the case, entitled Merrill v. Milligan, the Supreme Court asked whether its application of something called the Gingles standard is appropriate. Neither Alabama, the petitioner in this case, nor ALEC thinks it is.

The U.S. District Court for the Northern District of Alabama departed from application of the usual criteria for evaluating new congressional maps. It ordered the state to create a new map for Congressional districts after finding that the state could craft two majority-minority districts instead of one. If the District Court’s decision is affirmed, it would mean that every state would have to apply race-conscious districting criteria first and then race-neutral criteria.

Applying race-conscious criteria would violate the Constitution’s 14th and 15th Amendments, which guarantees all people will be treated equally under the law, regardless of race, and prohibits states from denying or abridging the right to vote because of a person’s race or color, respectively. 

There is a larger problem, though, with current federal jurisprudence – federal courts have abused a prior Supreme Court decision entitled Thornburg v. Gingles, or just Gingles, to effectively second-guess and ignore state legislative debate over redistricting legislation. Gingles allows federal courts to supplant the judgment of state legislators elected by the people, minimizing the political process guaranteed to the people by the U.S. Constitution.

Redistricting is challenging work. Once every ten years, a state needs to redraw Congressional districts, along with state legislative districts. The U.S. Constitution, Article I, Section 4, gives to state legislatures the primary authority to craft the districts. Legislators have a plethora of criteria they must apply when crafting the maps, including things like age, economic status, religious beliefs, geography, and even political leanings. As states apply this, they must apply other state-constitutionally mandated criteria such as compactness and contiguity. They must also balance with those concerns the federal constitution and law, such as how the Constitution protects minorities’ voting rights. And Congress, acting according to its authority under the 15th Amendment, enacted the Voting Rights Act, Section 2 of which guarantees that minorities will have equal access to a state’s political process.

Unfortunately, when the Supreme Court adopted Gingles, it mostly ignored the actual text of the statute. Instead, it substituted three “preconditions” plaintiffs must prove when bringing a claim under Section 2 and added factors from the Senate Judiciary Committee Report on § 2, which are not a part of the text of the statute. The decision to depart from the text of the statute has led to a significant diminution of state legislative autonomy.

In the past three years, for example, and as discussed in ALEC’s amicus brief, federal courts have thrown out nearly every election system challenged when applying Gingles’ interpretation of Section 2. Of the nearly three dozen relevant cases, only one ruled in favor of the state. All the others either ruled for the plaintiffs or strongly favored the plaintiffs, allowing them to proceed. 

Congress certainly never intended for courts to use Section 2 as a carte blanche method to overrule state legislative policy judgments. This would absolutely ignore the Constitution’s grant of redistricting authority to state legislatures in Article 1, Section 4. 

It is time for the Supreme Court to return to the plain text of Section 2, and craft an objective standard so state legislatures, potential plaintiffs, and courts alike know the discretion afforded states. Any objective test should strongly defer to state legislatures when they apply traditional race-neutral criteria first and then adjust the maps to ensure minorities have equal access to states’ political processes. Only if the plaintiffs can prove the sole, reasonable explanation for irregularities (defined as the substantial application of non-traditional, race neutral criteria) is racial discrimination can a court throw out legislatively drawn maps and order policymakers to try again.

State legislatures need a consistent, objective standard to guide the redistricting process. The current standard fails to provide such a standard, resulting in federal courts all-too-frequently supplanting the political process the Framers intended with a battle of the experts. The Supreme Court has an opportunity to balance protections ensuring all can participate in the political process with state legislatures’ constitutional authority to redistrict in a way consistent with the plain language of federal law.