Justice Denied: Equity, Elections, and Remedial Redistricting Rules
27 Pages Posted: 31 May 2019 Last revised: 1 May 2020
Date Written: October 1, 2019
As the Supreme Court has expanded the rights available to redistricting plaintiffs, it has imposed an ever-growing list of rules to regulate district courts as they craft equitable remedies. These constraining (and sometimes conflicting) principles include the Lipscomb principle, the Growe principle, the Abrams/Perry principle, the Upham principle, and the Purcell principle. Over time, these principles have hardened into doctrine and created a regime that strains to provide timely relief and is highly vulnerable to manipulation.
The Supreme Court’s recent decisions in Abbott v. Perez and North Carolina v. Covington double down on this trend and further undermine the flexibility that district courts require to “mould each decree to the necessities of the particular case.” Rather than decreasing the friction between judicial and legislative actors as the Court intends, its decisions appear likely to increase judicial entanglement in the political process.
To navigate the Supreme Court’s rigorous procedural regime in the meantime, district courts must incorporate equitable considerations into their case-management decisions and think strategically about how best to time, structure, and support their orders in each phase of litigation. This Essay recommends some strategies for district courts to consider, including resolving the merits with a declaratory judgment and deferring injunctive relief until after remedial briefing; making judicial remedies automatically revertible to encourage timely state appeals; and consolidating challenges to legislative remedies using Federal Rule of Civil Procedure 42(a).
In turn, the Supreme Court should reflect on the regime it has wrought. Its procedural principles threaten to eclipse voters’ substantive constitutional rights and invite the very harm the Court seeks to avoid. To avoid opportunistic behavior and ensure genuine relief, the Court should refrain from micromanaging redistricting remedies, return to a more deferential appellate posture, and restore lower courts’ flexibility in the remedial process.
Keywords: Gerrymandering, Redistricting, Voting Rights, Election Law, Democracy, Equity, Remedies
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