Math for the People: Reining in Gerrymandering While Protecting Minority Rights

40 Pages Posted: 19 Apr 2019

Date Written: February 24, 2019

Abstract

Americans overwhelmingly want fair, democratic elections. They’ve rightly become energized behind getting rid of the practice of gerrymandering — widely understood to be a scourge on democratic principles. They want district maps that are fair, in that they don’t unduly favor one major political party over another, or incumbents over newcomers. But what does it mean to be fair and democratic in a country with a history of rampant racial subordination in elections? What does a fair map look like in that context, and what is the process for drawing it?

When Congress amended the Voting Rights Act in 1982, it chose to answer that question by enacting, consistent with an “antisubordination” view of the Fourteenth and Fifteenth Amendments, a “results” test. That test imposes a duty on States to ensure that minorities have the same “opportunity . . . to elect representatives of their choice” as do other voters. Yet in the context of redistricting, that promise is currently fulfilled only erratically and incompletely, in part due to the federal courts’ imposition of a different duty on States, consistent with a “colorblind” or “anticlassification” view of those Amendments. The courts have forbidden the use of race as a “primary” factor in redistricting decisions, even when done so to benefit racial minorities. Thus, a mapmaker wishing to comply with the law — to fulfill both Congress and the courts’ views of the Reconstruction Amendments — must thread the tiniest of needles.

At the same time, those wishing to end the scourge of gerrymandering have failed, thus far, to square the obligation to protect minorities with the principles of neutrality and nonpartisanship that underlie their movement. Litigants and activists have generally accepted “Voting Rights Act compliance” as a legitimate districting criterion, and have even described it as one of the highest priority, but have they have not grappled with how to reconcile the Act’s antisubordination thrust with the courts’ anticlassification values.

This article brings good news, however. Inspired by recent attention to the problem of partisan gerrymandering, mathematicians have made advancements that could be used to reconcile these seemingly irreconcilable views of the Reconstruction Amendments – antisubordination versus colorblindness — at least in the context of redistricting. The political will is also forming. Now is the time for Congress to leverage both.

Suggested Citation

Ramachandran, Gowri, Math for the People: Reining in Gerrymandering While Protecting Minority Rights (February 24, 2019). North Carolina Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3340991

Gowri Ramachandran (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States

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