Virginia and New Jersey, for instance, have general elections later this year and at least seven other states have constitutional deadlines approaching for redistricting. With states scrambling to meet these deadlines, she said, “this time crunch could be, will be, used by some… .to limit public participation” in redistricting decisions.
The panelists also explored the difficult legal questions raised when redistricting is motivated by favoring a political party or when it is principally guided by a desire racial imbalance because an ethnic group, such as Blacks vote predominately for one party. The U.S. Supreme Court has effectively ruled the first motivation is constitutionally permitted but the second is not.
Leah Aden, deputy director of litigation for the NAACP Legal Defense and Educational Fund, Inc., said the Voting Rights Act still “ensures that minority voters are not diluted in the line-drawing process” even though the 2013 U.S. Supreme Court decision in Shelby County v. Holder essentially gutted a pre-clearance provision. Now, the burden of proof falls on the U.S. Department of Justice or private parties to show that the change is discriminatory.
The panelists also praised efforts by some states to take redistricting decisions out of the hands of legislators, replacing them with nonpartisan commissions. This is to minimize what many criticize the decennial process as leading to blatant political gerrymandering.
Justin Levitt, a professor at Loyola Marymount University Law School and former deputy assistant attorney general in DOJ’s Civil Rights Division, noted that commissions reduce the inherent conflict of legislators drawing their own lines to protect themselves or friends in powerful places.
“There’s not one silver bullet that works for everywhere,” he said. “I look for a process that has meaningful independence … meaningful transparency and meaningful diversity. That can look a bunch of different ways.”
Moderator Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, cautioned that because redistricting is an “inherently political process … you can’t take the politics out” of it. But he urged lawyers to get involved in litigation, education or other efforts to foster more public involvement in the process.
The program was sponsored by the ABA Commission on Hispanic Legal Rights & Responsibilities and was held on the second day of Midyear, which ends Feb. 22.